FOR IMMEDIATE RELEASE

January 12, 2004

Glad Files Brief in Response to Senate Question

CALLS CIVIL UNIONS MEANINGFUL BUT SEPARATE AND UNEQUAL TO MARRIAGE

(Boston, January 12, 2003)  Gay & Lesbian Advocates & Defenders (GLAD), lawyers for the seven same-sex couples who won an historic court victory on Nov. 18, 2003, today filed a brief in the Massachusetts Supreme Judicial Court (SJC)  arguing that while a civil unions remedy would be an advancement, it would continue to subject gay and lesbian couples to second-class status which the SJC explicitly rejected in its ruling.

The GLAD brief responds to the state Senate’s question about whether civil unions would satisfy the court’s ruling ending government discrimination in marriage. The Senate President submitted the advisory question to the court on Dec. 12, 2003.

“Civil unions certainly are meaningful, but they remain separate and unequal to marriage,” said Mary L. Bonauto, the lead GLAD attorney on the marriage case. “With a civil union, a couple is virtually guaranteed complications when traveling outside of Massachusetts, or even if they seek federal legal protections for their family in Massachusetts.  Marriage is much more than the sum of its parts.  The word itself is protection.”

The Senate asked the SJC for an advisory opinion to clarify whether a new measure banning marriage for same-sex couples but allowing them to join in civil unions would pass muster under the state Constitution.  The proposed civil union law—a proposal which would not necessarily pass in its proposed form—allows couples joined in civil union all of the state-law based rights applicable to spouses, but withholds the name as well as the legal and social protections that accompany the name.

GLAD’S Brief argues that the legislature may not re-impose the marriage ban just struck down as unconstitutional in Goodridge and that civil unions are unequal protection that also impose second class citizenship.  The Senate’s invocation of “tradition” as a justification for this unequal regime has already been rejected in Goodridge.  Long-standing traditions must give way to basic constitutional guarantees of liberty and equality, the court ruled.

GLAD coordinated the filing of several of the amicus briefs defending the Supreme Judicial Court’s historic ruling.  All the briefs were prepared by leading Massachusetts law firms along with other experts.

The Brief of Civil Rights Leaders, including U.S. Congressman John Lewis (an original speaker at the 1963 March on Washington), the Boston Bar Association, and 32 local and national civil rights groups, including the Mass. Ass’n of Hispanic Attorneys, Southern Poverty Law Center, Mass. Black Women Attorneys, NOW Legal Defense, the Urban League of Eastern Mass., and the Asian-American Lawyers Ass’n of Mass.,  argues that creating a separate status solely for same-sex couples is not equality but second-class citizenship.

The Brief of LGBT Organizations in Massachusetts, Vermont and nationally, argues that civil unions cannot provide same-sex couples with the same protections as marriage because civil unions do not provide the same legal and social protections as marriage and because of issues with portability such as respect by other states, and ending discrimination by the federal government.

The Brief of International Human Rights Organizations and Law
Professors argues that evolving trends around the world demonstrate that only marriage provides true equality.  The SJC’s ruling in Goodridge is supported by the experiences of other countries, like Canada, whose courts have also applied equality principles to require marriage for same-sex couples.  Other countries have created separate institutions as a result of political compromise, not as a matter of constitutional principle.  Unlike the compromise bills in other countries, the Senate bill also creates new problems because it is limited to same-sex couples only, thereby discriminating against non-gay people.

The Brief Of Professors Of Constitutional Law and American Legal History, filed on behalf of 90 of the country’s leading scholars, argues that the SJC, when acting in its advisory role, must advise based on existing precedent, and therefore must reject civil unions as inconsistent with the Goodridge marriage ruling.  While few states allow the other branches of government to ask for advice from the Court, the SJC has retained its independence and supported the rule of law by adhering to binding precedent when it acts in its advisory role.

All of the briefs will be available through GLAD and additional information about the Goodridge case is available at http://www.glad.org/work/cases/goodridge-et-al-v-dept-public-health/.