Opinions of the Justices to the Senate
2/4/2004
On February 3, 2004, the Justices submitted the following answer to a question propounded to them by the Senate.
To the Honorable the Senate of the Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court respectfully submit
their answers to the question set forth in an order adopted by the Senate
on December 11, 2003, and transmitted to the Justices on December 12, 2003.
The order indicates that there is pending before the General Court a bill,
Senate No. 2175, entitled "An Act relative to civil unions." A copy of the
bill was transmitted with the order. As we describe more fully below, the
bill adds G. L. c. 207A to the General Laws, which provides for the establishment
of "civil unions" for same-sex "spouses," provided the individuals meet certain
qualifications described in the bill.1
The order indicates that grave doubt exists as to the constitutionality of
the bill if enacted into law and requests the opinions of the Justices on
the following "important question of law":
"Does Senate, No. 2175, which prohibits same-sex couples from entering into
marriage but allows them to form civil unions with all 'benefits, protections,
rights and responsibilities' of marriage, comply with the equal protection
and due process requirements of the Constitution of the Commonwealth and
articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"2
Under Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as
amended by art. 85 of the Amendments, "[e]ach branch of the legislature,
as well as the governor or the council, shall have authority to require the
opinions of the justices of the supreme judicial court, upon important questions
of law, and upon solemn occasions." "[A] solemn occasion exists 'when the
Governor or either branch of the Legislature, having some action in view,
has serious doubts as to their power and authority to take such action, under
the Constitution, or under existing statutes.'" Answer of the Justices, 364
Mass. 838, 844 (1973), quoting Answer of the Justices, 148 Mass. 623, 626
(1889). The pending bill involves an important question of law and the Senate
has indicated "grave doubt" as to its constitutionality. We therefore address
the question. See Opinion of the Justices, 430 Mass. 1205, 1207 (2000).
1The bill also amends G. L. c. 151B by prohibiting discrimination against civilly joined spouses.
2 Article 1 of the Massachusetts Declaration of Rights, as amended by art.
106 of the Amendments to the Massachusetts Constitution, provides: "All people
are born free and equal and have certain natural, essential and unalienable
rights; among which may be reckoned the right of enjoying and defending their
lives and liberties; that of acquiring, possessing and protecting property;
in fine, that of seeking and obtaining their safety and happiness. Equality
under the law shall not be denied or abridged because of sex, race, color,
creed or national origin."
Article 6 of the Massachusetts Declaration of Rights provides: "No . . .
men, have any other title to obtain advantages, or particular and exclusive
privileges, distinct from those of the community, than what arises from the
consideration of services rendered to the public . . . ."
Article 7 of the Massachusetts Declaration of Rights provides, in relevant
part: "Government is instituted for the common good; for the protection,
safety, prosperity, and happiness of the people; and not for the profit,
honor, or private interest of any one man, family or class of men . . . ."
Article 10 of the Massachusetts Declaration of Rights provides, in relevant
part: "Each individual of the society has a right to be protected by it in
the enjoyment of his life, liberty and property, according to standing laws.
. . ."
Because our determination does not turn on art. 12 or art. 16, we do not recite them here. See Goodridge v. Department of
Pub. Health, ante 309, 316 n.8 (2003) (Goodridge).
1. Background of the proposed legislation. In Goodridge v. Department of
Pub. Health, ante 309 (2003) (Goodridge), the court considered the constitutional
question "[w]hether the Commonwealth may use its formidable regulatory authority
to bar same-sex couples from civil marriage . . . ." Id. at 312-313. The
court concluded that it may not do so, determining that the Commonwealth
had failed to articulate a rational basis for denying civil marriage to same-sex
couples. The court stated that the Massachusetts Constitution "affirms the
dignity and equality of all individuals" and "forbids the creation of second-
class citizens." Id. at 312. The court concluded that in "[l]imiting the
protections, benefits, and obligations of civil marriage to opposite-sex
couples," G. L. c. 207, the marriage licensing law, "violates the basic premises
of individual liberty and equality under law protected by the Massachusetts
Constitution." Goodridge at 342.
In so concluding, the court enumerated some of the concrete tangible benefits
that flow from civil marriage, including, but not limited to, rights in property,
probate, tax, and evidence law that are conferred on married couples. Id.
at 322-325. The court also noted that "intangible benefits flow from marriage,"
Id. at 322, intangibles that are important components of marriage as a "civil
right." Id. at 325. The court stated that "[m]arriage also bestows enormous
private and social advantages on those who choose to marry . . . [and] is
at once a deeply personal commitment to another human being and a highly
public celebration of the ideals of mutuality, companionship, intimacy, fidelity,
and family." Id. at 322. "Because it fulfils yearnings for security, safe
haven, and connection that express our common humanity, civil marriage is
an esteemed institution, and the decision whether and whom to marry is among
life's momentous acts of self-definition." Id. Therefore, without the right
to choose to marry, same-sex couples are not only denied full protection
of the laws, but are "excluded from the full range of human experience."
Id. at 326.
The court stated that the denial of civil marital status "works a deep and
scarring hardship on a very real segment of the community for no rational
reason." Id. at 341. These omnipresent hardships include, but are by no means
limited to, the absence of predictable rules of child support and property
division, and even uncertainty concerning whether one will be allowed to
visit one's sick child or one's partner in a hospital. See, e.g., id. at
315 n.6, 335. See also id. at 348 (Greaney, J., concurring) ("The continued
maintenance of this caste-like system is irreconcilable with, indeed, totally
repugnant to, the State's strong interest in the welfare of all children
and its primary focus . . . on 'the best interests of the child'"). All of
these stem from the status of same-sex couples and their children as "outliers
to the marriage laws." Id. at 335.
After reviewing the marriage ban under the deferential rational basis standard,
the court concluded that the Department of Public Health "failed to identify
any relevant characteristic that would justify shutting the door to civil
marriage to a person who wishes to marry someone of the same sex." Id. at
341.
The Goodridge decision by the court made no reference to the concept
of "civil unions," nor did the separate concurring opinion of Justice Greaney.
Rather, it was the lawfulness under the Massachusetts Constitution of the
bar to civil marriage itself, "a vital social institution," id. at 313, that
the court was asked to decide. The court decided the question after extensively
reviewing the government's justifications for the marriage ban.
In response to the plaintiffs' specific request for relief, the court preserved
the marriage licensing statute, but refined the common-law definition of
civil marriage to mean "the voluntary union of two persons as spouses, to
the exclusion of all others." Id. at 343. The entry of judgment was stayed
"for 180 days to permit the Legislature to take such action as it may deem
appropriate." Id. at 344. The purpose of the stay was to afford the Legislature
an opportunity to conform the existing statutes to the provisions of the
Goodridge decision.
2. Provisions of the bill. The order of the Senate plainly reflects that
Senate No. 2175 is proposed action in response to the Goodridge opinion.
The bill states that the "purpose" of the act is to provide "eligible same-sex
couples the opportunity to obtain the benefits, protections, rights and responsibilities
afforded to opposite sex couples by the marriage laws of the commonwealth,
without entering into a marriage," declares that it is the "public policy"
of the Commonwealth that "spouses in a civil union" "shall have all the benefits,
protections, rights and responsibilities afforded by the marriage laws,"
Senate No. 2175, § 2, and recites "that the Commonwealth's laws should
be revised to give same-sex couples the opportunity to obtain the legal protections,
benefits, rights and responsibilities associated with civil marriage, while
preserving the traditional, historic nature and meaning of the institution
of civil marriage." Id. at § 1. To that end, the bill proposes G. L.
c. 207A, which establishes the institution of "civil union," eligibility
for which is limited to "[t]wo persons . . . [who] are of the same sex .
. . ."
The proposed law states that "spouses" in a civil union shall be "joined
in it with a legal status equivalent to marriage." Senate No. 2175, §
5. The bill expressly maintains that "marriage" is reserved exclusively for
opposite-sex couples by providing that "[p]ersons eligible to form a civil
union with each other under this chapter shall not be eligible to enter into
a marriage with each other under chapter 207." Id. Notwithstanding, the proposed
law purports to make the institution of a "civil union" parallel to the institution
of civil "marriage." For example, the bill provides that "spouses in a civil
union shall have all the same benefits, protections, rights and responsibilities
under law as are granted to spouses in a marriage." In addition, terms that
denote spousal relationships, such as "husband," "wife," "family," and "next
of kin," are to be interpreted to include spouses in a civil union "as those
terms are used in any law." Id. The bill goes on to enumerate a nonexclusive
list of the legal benefits that will adhere to spouses in a civil union,
including property rights, joint State income tax filing, evidentiary rights,
rights to veteran benefits and group insurance, and the right to the issuance
of a "civil union" license, identical to a marriage license under G. L. c.
207, "as if a civil union was a marriage."
3. Analysis. As we stated above,
in Goodridge the court was asked to consider the constitutional question
"whether the Commonwealth may use its formidable regulatory authority to
bar same-sex couples from civil marriage." The court has answered the question.
We have now been asked to render an advisory opinion on Senate No. 2175,
which creates a new legal status, "civil union," that is purportedly equal
to "marriage," yet separate from it. The constitutional difficulty of the
proposed civil union bill is evident in its stated purpose to "preserv[e]
the traditional, historic nature and meaning of the institution of civil
marriage." Senate No. 2175, § 1. Preserving the institution of civil
marriage is of course a legislative priority of the highest order, and one
to which the Justices accord the General Court the greatest deference. We
recognize the efforts of the Senate to draft a bill in conformity with the
Goodridge opinion. Yet the bill, as we read it, does nothing to "preserve"
the civil marriage law, only its constitutional infirmity. This is not a
matter of social policy but of constitutional interpretation. As the court
concluded in Goodridge, the traditional, historic nature and meaning of civil
marriage in Massachusetts is as a wholly secular and dynamic legal institution,
the governmental aim of which is to encourage stable adult relationships
for the good of the individual and of the community, especially its children.
The very nature and purpose of civil marriage, the court concluded, renders
unconstitutional any attempt to ban all same-sex couples, as same-sex couples,
from entering into civil marriage.
The same defects of rationality evident in the marriage ban considered in
Goodridge are evident in, if not exaggerated by, Senate No. 2175. Segregating
same-sex unions from opposite-sex unions cannot possibly be held rationally
to advance or "preserve" what we stated in Goodridge were the Commonwealth's
legitimate interests in procreation, child rearing, and the conservation
of resources. See Goodridge, supra at 341. Because the proposed law by its
express terms forbids same-sex couples entry into civil marriage, it continues
to relegate same-sex couples to a different status. The holding in Goodridge,
by which we are bound, is that group classifications based on unsupportable
distinctions, such as that embodied in the proposed bill, are invalid under
the Massachusetts Constitution. The history of our nation has demonstrated
that separate is seldom, if ever, equal.3
In Goodridge, the court acknowledged, as we do here, that "[m]any people
hold deep-seated religious, moral, and ethical convictions that marriage
should be limited to the union of one man and one woman, and that homosexual
conduct is immoral. Many hold equally strong religious, moral, and ethical
convictions that same-sex couples are entitled to be married, and that homosexual
persons should be treated no differently than their heterosexual neighbors."
Id. at 312. The court stated then, and we reaffirm, that the State may not
interfere with these convictions, or with the decision of any religion to
refuse to perform religious marriages of same-sex couples. Id. at 337-338
n.29. These matters of belief and conviction are properly outside the reach
of judicial review or government interference. But neither may the government,
under the guise of protecting "traditional" values, even if they be the traditional
values of the majority, enshrine in law an invidious discrimination that
our Constitution, "as a charter of governance for every person properly within
its reach," forbids. Id. at 312.
The bill's absolute prohibition of the use of the word "marriage" by "spouses"
who are the same sex is more than semantic. The dissimilitude between the
terms "civil marriage" and "civil union" is not innocuous; it is a considered
choice of language that reflects a demonstrable assigning of same-sex, largely
homosexual, couples to second-class status. The denomination of this difference
by the separate opinion of Justice Sosman (separate opinion) as merely a
"squabble over the name to be used" so clearly misses the point that further
discussion appears to be useless.4 Post at . If, as the separate opinion
posits, the proponents of the bill believe that no message is conveyed by
eschewing the word "marriage" and replacing it with "civil union" for same-sex
"spouses," we doubt that the attempt to circumvent the court's decision in
Goodridge would be so purposeful. For no rational reason the marriage laws
of the Commonwealth discriminate against a defined class; no amount of tinkering
with language will eradicate that stain. The bill would have the effect of
maintaining and fostering a stigma of exclusion that the Constitution prohibits.
It would deny to same-sex "spouses" only a status that is specially recognized
in society and has significant social and other advantages. The Massachusetts
Constitution, as was explained in the Goodridge opinion, does not permit
such invidious discrimination, no matter how well intentioned.
The separate opinion maintains that, because same-sex civil marriage is not
recognized under Federal law and the law of many States, there is a rational
basis for the Commonwealth to distinguish same-sex from opposite-sex "spouses."
Post at . There is nothing in the bill, including its careful and comprehensive
findings (see Senate No. 2175, § 1), to suggest that the rationale for
the bill's distinct nomenclature was chosen out of deference to other jurisdictions.
This is but a post hoc, imaginative theory created in the separate opinion
to justify different treatment for a discrete class. Even if the different
term were used for the reason the separate opinion posits, and not in order
to label the unions of same-sex couples as less worthy than those of opposite
sex couples, we would remain unpersuaded. "Our concern," as the court stated
in Goodridge, "is with the Massachusetts Constitution as a charter of governance
for every person properly within its reach." Id. at 312.
We are well aware that current Federal law prohibits recognition by the Federal
government of the validity of same-sex marriages legally entered into in
any State, and that it permits other States to refuse to recognize the validity
of such marriages. The argument in the separate opinion that, apart from
the legal process, society will still accord a lesser status to those marriages
is irrelevant. Courts define what is constitutionally permissible, and the
Massachusetts Constitution does not permit this type of labeling. That there
may remain personal residual prejudice against same-sex couples is a proposition
all too familiar to other disadvantaged groups. That such prejudice exists
is not a reason to insist on less than the Constitution requires. We do not
abrogate the fullest measure of protection to which residents of the Commonwealth
are entitled under the Massachusetts Constitution. Indeed, we would do a
grave disservice to every Massachusetts resident, and to our constitutional
duty to interpret the law, to conclude that the strong protection of individual
rights guaranteed by the Massachusetts Constitution should not be available
to their fullest extent in the Commonwealth because those rights may not
be acknowledged elsewhere. We do not resolve, nor would we attempt to, the
consequences of our holding in other jurisdictions. See id. at 340-341.5
But, as the court held in Goodridge, under our Federal system of dual sovereignty,
and subject to the minimum requirements of the Fourteenth Amendment to the
United States Constitution, "each State is free to address difficult issues
of individual liberty in the manner its own Constitution demands." Id. at
341.
We recognize that the pending bill palliates some of the financial and other
concrete manifestations of the discrimination at issue in Goodridge. But
the question the court considered in Goodridge was not only whether it was
proper to withhold tangible benefits from same-sex couples, but also whether
it was constitutional to create a separate class of citizens by status discrimination,
and withhold from that class the right to participate in the institution
of civil marriage, along with its concomitant tangible and intangible protections,
benefits, rights, and responsibilities. Maintaining a second-class citizen
status for same-sex couples by excluding them from the institution of civil
marriage is the constitutional infirmity at issue.
3 The separate opinion of Justice Sosman (separate opinion) correctly notes
that this court has not recognized sexual orientation as a suspect classification.
It does so by referring to Brown v. Board of Educ., 347 U.S. 483 (1954),
and stating that that case "involved a classification . . . that is expressly
prohibited by our Constitution." Post at n.6. The Brown case was decided
under the Federal Constitution and made no reference to "suspect classifications."
It held that "separate but equal" segregation in the context of public schools
violated "the equal protection of the laws guaranteed by the Fourteenth Amendment"
to the United States Constitution. Brown v. Board of Educ., supra at 495.
The Fourteenth Amendment does not expressly prohibit discrimination against
any particular class of persons, racial, religious, sexual, or otherwise,
but instead elegantly decries the denial of equal protection of the laws
"to any person" within the jurisdiction of the United States. Similarly,
our decision in Goodridge did not depend on reading a particular suspect
class into the Massachusetts Constitution, but on the equally elegant and
universal pronouncements of that document. See note 2, supra.
In any event, we fail to understand why the separate opinion chastises us for adopting the constitutional test (rational
basis) that is more likely to permit the legislation at issue. We did not
apply a strict scrutiny standard in Goodridge. Under the even more lenient
rational basis test, nothing presented to us as a justification for the existing
distinction was in any way rationally related to the objectives of the marriage
laws. Now, we answer that this proposed legislation fails to provide a rational
basis for the different nomenclature.
4 The separate opinion enlists Shakespeare in the cause of trying to convince
us that words are unimportant. Post at n.1. But whatever may pertain to two
teenagers in love does not disguise the importance of the choice of words
employed by the government to discriminate between two groups of persons
regulated in their conduct by the government. The separate opinion fails
to appreciate that it is not the word "union" that incorporates a pejorative
value judgment, but the distinction between the words "marriage" and "union."
If, as the separate opinion suggests, the Legislature were to jettison the
term "marriage" altogether, it might well be rational and permissible. Post
at n.5. What is not permissible is to retain the word for some and not for
others, with all the distinctions thereby engendered.
5 Nor are we unaware that revisions will be necessary to effectuate the administrative
details of our decision. These alterations can be made without perpetuating
the discrimination that flows from separate nomenclature.
4. Conclusion. We are of the opinion that Senate No. 2175 violates the equal
protection and due process requirements of the Constitution of the Commonwealth
and the Massachusetts Declaration of Rights. Further, the particular provisions
that render the pending bill unconstitutional, §§ 2 and 3 of proposed
G. L. c. 207A, are not severable from the remainder. The bill maintains an
unconstitutional, inferior, and discriminatory status for same-sex couples,
and the bill's remaining provisions are too entwined with this purpose to
stand independently. See Murphy v. Commissioner of the Dep't of Indus. Accs.,
418 Mass. 165, 169 (1994).
The answer to the question is "No."
The foregoing answer and opinion are submitted by the Chief Justice and the
Associate Justices subscribing hereto on the third day of February, 2004.
Margaret H. Marshall
John M. Greaney
Roderick L. Ireland
Judith A. Cowin
In response to this court's decision in Goodridge v. Department of Pub. Health,
ante 309 (2003) (Goodridge), the Senate is considering a bill that would
make available to same- sex couples all of the protections, benefits, rights,
responsibilities, and legal incidents that are now available to married opposite-sex
couples, but would denominate the legal relationship thus created as a "civil
union" instead of a civil "marriage." The question submitted to us by the
Senate thus asks, in substance, whether the Massachusetts Constitution would
be violated by utilizing the term "civil union" instead of "marriage" to
identify the otherwise identical package of State law rights and benefits
to be made available to same-sex couples.
In response to the court's invitation to submit amicus briefs on this question,
we have received, from both sides of the issue, impassioned and sweeping
rhetoric out of all proportion to the narrow question before us. Both sides
appear to have ignored the fundamental import of the proposed legislation,
namely, that same-sex couples who are civilly "united" will have literally
every single right, privilege, benefit, and obligation of every sort that
our State law confers on opposite-sex couples who are civilly "married."
Under this proposed bill, there are no substantive differences left to dispute
-- there is only, on both sides, a squabble over the name to be used.1 There
is, from the amici on one side, an implacable determination to retain some
distinction, however trivial, between the institution created for same-sex
couples and the institution that is available to opposite-sex couples. And,
from the amici on the other side, there is an equally implacable determination
that no distinction, no matter how meaningless, be tolerated. As a result,
we have a pitched battle over who gets to use the "m" word.
This does not strike me a dispute of any constitutional dimension whatsoever,
and today's response from the Justices -- unsurprisingly -- cites to no precedent
suggesting that the choice of differing titles for various statutory programs
has ever posed an issue of constitutional dimension, here or anywhere else.
And, rather than engage in any constitutional analysis of the claimed statutory
naming rights, today's answer to the Senate's question merely repeats the
impassioned rhetoric that has been submitted to us as if it were constitutional
law, opining that any difference in names represents an "attempt to circumvent"
the court's decision in Goodridge. Ante at .
A principle premise of the Justices's answer is that this specific issue
has somehow already been decided by Goodridge. It has not. In Goodridge,
the court was presented with a statutory scheme that afforded same-sex couples
absolutely none of the benefits, rights, or privileges that same-sex couples
could obtain under Massachusetts law by way of civil marriage. At length,
the Goodridge opinion identified the vast array of benefits, rights, and
privileges that were effectively withheld from same-sex couples (and their
children), Goodridge, supra at 323-325, and concluded that "[l]imiting the
protections, benefits, and obligations of civil marriage to opposite-sex
couples violates the basic premises of individual liberty and equality under
law protected by the Massachusetts Constitution." Id. at 342. The ostensible
reasoning behind that conclusion was that there was no "rational basis" for
depriving same-sex couples (and their children) of those protections, benefits,
and obligations. Id. at 331, 341.
Today's question presents the court with the diametric opposite of the statutory
scheme reviewed in Goodridge. Where the prior scheme accorded same-sex couples
(and their children) absolutely none of the benefits, rights, or privileges
that State law confers on opposite-sex married couples (and their children),
the proposed bill would accord them all of those substantive benefits, rights,
and privileges. Nothing in Goodridge addressed the very limited issue that
is presented by the question now before us, i.e., whether the Constitution
mandates that the license that qualifies same-sex couples for that identical
array of State law benefits, rights, and privileges be called a "marriage"
license. In other words, where Goodridge addressed whether there was any
rational basis for the enormous substantive difference between the treatment
of same-sex couples and the treatment of opposite-sex couples, the present
question from the Senate asks whether a single difference in form alone --
the name of the licensing scheme -- would violate the Constitution. Repeated
quotations of dicta from Goodridge -- which is essentially all that today's
answer to the Senate consists of -- simply does not answer the question that
is before us.
Rather, according to Goodridge itself, we must consider whether there is
any "rational basis" for giving the licensure program for same-sex couples
a different name from the licensure program for opposite-sex couples, despite
the fact that the two programs confer identical benefits, rights, and privileges
under State law. Nowhere does today's answer to the Senate actually analyze
whether there is or is not a conceivable rational basis for that distinction
in name. Instead, the answer pays lip service to the rational basis test
in a footnote and, in conclusory fashion, announces that, because the different
name would still connote "a different status," it somehow lacks a rational
basis and is contrary to Goodridge. Ante at & n.3, .
While we have no precedent for the application of the rational basis test
(or the strict scrutiny test, for that matter) to as insignificant an issue
as what a statutory program is to be called, it would seem logical that the
Legislature could call a program by a different name as long as there was
any difference between that program and the other program in question. The
black-letter law concerning the extremely deferential nature of the rational
basis test should not need to be repeated here. Suffice it to say that a
statutory classification need be supported only "by a conceivable, rational
basis," Fine v. Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988),
and that the Legislature "is not required to justify its classifications,
nor to provide a record or finding in support of them." Paro v. Longwood
Hosp., 373 Mass. 645, 650 (1977). As such, a statute is not rendered infirm
by its failure to recite a rational basis for its enactment, nor are we limited
to a consideration of any specific basis identified by the statute itself.
"[I]t is irrelevant for constitutional analysis whether a reason now advanced
in support of a statutory classification is one that actually motivated the
Legislature." Prudential Ins. Co. v. Commissioner of Revenue, 429 Mass. 560,
568 (1999), citing FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).
At first blush, one would say that the very identity between the package
of benefits, rights, and privileges accorded same-sex couples under the proposed
bill and the package of benefits, rights, and privileges accorded opposite-sex
couples under existing State law means that there is no reason to give those
two packages different names. Where the stated purpose of the proposed bill
is to eliminate all substantive differences between those two types of couples,
what conceivable purpose is served by retaining a different title for their
respective licensing schemes?
The problem, however, is simple: it is beyond the ability of the Legislature
-- and even beyond the ability of this court, no matter how activist it becomes
in support of this cause -- to confer a package of benefits and obligations
on same-sex "married" couples that would be truly identical to the entire
package of benefits and obligations that being "married" confers on opposite-sex
couples. That difference stems from the fact that, Goodridge notwithstanding,
neither Federal law nor the law of other States will recognize same-sex couples
as "married" merely because Massachusetts has given them a license called
a "marriage" license. That fact, by itself, will result in many substantive
differences between what it would mean for a same-sex couple to receive a
Massachusetts "marriage" license and what it means for an opposite-sex couple
to receive a Massachusetts "marriage" license. Those differences are real,
and, in some cases, quite stark. Their very existence makes it rational to
call the license issued to same-sex couples by a different name, as it unavoidably
-- and, to many, regrettably -- cannot confer a truly equal package of rights,
privileges, and benefits on those couples, no matter what name it is given.
Just as Goodridge identified the vast array of State benefits, rights, and
privileges that are conferred based on marital status, a vast array of Federal
benefits, rights, and privileges are also conferred based on marital status.
However, whatever Massachusetts chooses to call the license it grants to
same-sex couples, the Federal government will not, for purposes of any Federal
statute or program, treat it as a "marriage." See 1 U.S.C. § 7 (2000)
("In determining the meaning of any Act of Congress, or of any ruling, regulation,
or interpretation of the various administrative bureaus and agencies of the
United States, the word 'marriage' means only a legal union between one man
and one woman as husband and wife, and the word 'spouse' refers only to a
person of the opposite sex who is a husband or a wife"). As such, same-sex
"married" couples will not be treated as "married" for such purposes as Federal
taxation (both income taxes and, even more significantly, estate taxes),
Social Security benefits (of any kind), immigration, or Federal programs
providing health care or nursing home care benefits, to name but a few. And,
where those Federal programs set the eligibility requirements for many of
our federally funded State programs, those corresponding State programs will
not be allowed to treat same-sex couples as married either, thus excluding
them from (or profoundly affecting the calculation of) entitlement to benefits
under many such State programs. State officials -- not just Federal officials
-- will, of necessity, have to differentiate between same-sex and opposite-sex
couples for all of these State programs. One may decry the unfairness of
this different treatment at the hands of the Federal government and its programs,
just as the plaintiffs in Goodridge decried the unfairness of different treatment
under State law, but neither this court nor the Legislature has any power
to eradicate those differences or to obviate the need that will arise to
distinguish between same-sex and opposite-sex couples for many purposes.
Yet another significant difference stems from the fact that, at present,
most States will refuse to recognize a "marriage" license issued by Massachusetts
to a same-sex couple. See 28 U.S.C. § 1738C (2000) (States not required
to recognize relationship between same-sex couples as marriage even if another
State treats that relationship as marriage); P. Greenberg, State Laws Affecting
Lesbians and Gays, National Conference of State Legislatures Legisbriefs
at 1 (April/May 2001) (reporting that, as of May, 2001, thirty-six States
had enacted "defense of marriage" statutes). Not only would such a couple
be deprived of any benefits of being "married" if that couple moved to another
State, but such a couple would not have access to that State's courts for
purposes of obtaining a divorce or separation and the necessary orders (with
respect to alimony, child support, or child custody) that accompany a divorce
or separation. See, e.g., Rosengarten v. Downes, 71 Conn. App. 372, 380-381,
appeal dismissed, 261 Conn. 936, 936 n.* (2002) (where Connecticut law did
not recognize validity of same-sex couple's union as marriage, court lacked
subject matter jurisdiction over dissolution action); Rosenberg, Breaking
Up is Hard to do, Newsweek 44 (July 7, 2003), noting that, "[i]f gay couples
think it's tough to get married, they may find it's even harder to split
up"). Ironically, a "marriage" license issued to a same- sex couple will
not only fail to entitle that couple to the same array of benefits that normally
attend the marriage of opposite- sex couples, but it will not subject them
to the same obligations, either -- their status as a "married" couple, and
therefore all of the obligations that attend that status, can be made to
disappear by the simple expedient of moving to another State that will not
recognize them as "married." Opposite-sex couples, once "married" in Massachusetts,
cannot shed that status and its significant obligations so easily.
It would be rational for the Legislature to give different names to the license
accorded to these two groups, when the obligations they are undertaking and
the benefits they are receiving are, in practical effect, so very different,
and where, for purposes of the vast panoply of federally funded State programs,
State officials will have to differentiate between them. That these differences
stem from laws and practices outside our own jurisdiction does not make those
differences any less significant. They will have a very real effect on the
everyday lives of same-sex couples, and the lives of their children, that
will unavoidably make their ostensible "marriage" a very different legal
institution from the "marriage" enjoyed by opposite-sex couples.2 That lack
of recognition in other jurisdictions is not simply a matter affecting the
intangibles of "status" or "personal residual prejudice," ante at , but is
a difference that gives rise to a vast assortment of highly tangible, concrete
consequences. It is not the naming of the legal institution that confers
"a different status" on same-sex couples, ante at ; rather, that difference
in terminology reflects the reality that, for many purposes, same-sex couples
will have "a different status."
Not only will the institution itself be different, but those very differences
would, in many areas, justify (and, in some cases, require) modifications
of our own State law in ways that are unique to same-sex couples in order
to address those differences. Such modifications range from the mundane (and
almost automatic) to very substantive and complex. To begin with the mundane,
while the proposed bill specifies that same-sex couples in "civil unions"
can file joint Massachusetts income tax returns, such couples will not be
allowed to file joint Federal income tax returns; when, on their Massachusetts
returns, they encounter the numerous cross-references to what was entered
on a particular line of their Federal return, what figure are they to use?
Some regulation or instruction, applicable only to the tax returns of same-sex
couples, will inevitably have to be promulgated. On a more substantive level,
would it not be permissible (and, in the view of many, appropriate) for the
Legislature to provide some form of tax benefit to same-sex couples to recognize
that they have been deprived of certain deductions, credits, or other benefits
on their Federal income taxes or Federal estate taxes? See, e.g., G. L. c.
62, § 3 (B) (a) (9) (providing tax deduction to persons renting their
homes where Federal tax law only allows deduction for mortgage interest paid
by owners). See also Massachusetts Teachers Ass'n v. Secretary of the Commonwealth,
384 Mass. 209, 238-240 (1981). Would it not also be permissible (and, in
the view of many, appropriate) to establish a program of benefits for same-sex
couples and their children to offset the hardship they will encounter as
a result of being denied Social Security benefits, health care benefits,
and the many other benefits that opposite- sex married couples (and their
children) receive under Federal programs and federally funded State programs?
See, e.g., St. 1997, c. 43, § 210 (providing welfare benefits to aliens
excluded from Federal benefits program); Doe v. Commissioner of Transitional
Assistance, 437 Mass. 521, 534-535 (2002). And, would it not be desirable
to try and formulate some mechanism -- admittedly complex and difficult to
fashion -- by which same-sex couples who move out of State could still have
resort to Massachusetts courts to enforce the obligations of their union
in the event one party or the other wished to dissolve it? Cf. Vt. Stat.
Ann. tit. 15, § 1206 (2002) (persons seeking to dissolve civil union
must meet residency requirement).
I recognize that the proposed bill does not contain any measures addressing
any of these problems. The question, however, is whether it is rational to
envision a need to differentiate between these two types of licenses -- after
all, the 180-day deadline imposed by Goodridge does not realistically allow
for a review of every one of the "hundreds of statutes" in Massachusetts
alone that are "related to marriage and to marital benefits," Goodridge,
supra at 323, let alone review how differences in Federal law and the law
of other States will frustrate the goal of complete equality and require
separate statutory or regulatory remedies for same-sex couples in Massachusetts.
It is understandable, therefore, that the proposed bill sets forth as its
initial goal the overarching proposition that these two programs should be
equal and leaves to another day the painstaking task of revising the "hundreds"
of provisions that might, in order to obtain equality in a more pragmatic
sense, need substantial revision.3 Moreover, it makes eminent sense to obtain
some direct experience with this first in the nation proposed program of
"civil unions" that are to be the complete functional equivalent of "marriage";
that experience will both identify where the theoretically identical treatment
is not identical in reality and simultaneously inform those seeking genuine
equality what remedies might best be fashioned to "close the gap." Indeed,
once the euphoria of Goodridge subsides, the reality of the still less than
truly equal status of same-sex couples will emerge, and it will emerge in
pragmatic ways far beyond the purely symbolic issue of what their legal status
is to be named. There will surely be more to address than mere "administrative
details." Ante at n.5.
Where the rights and obligations conferred on same-sex couples by Goodridge
will not in fact be identical to the rights and obligations of opposite-sex
married couples, where State officials will have to differentiate between
them under essentially all federally funded State programs, and where it
is rational to envision different, yet constitutional, treatment of same-sex
couples in the future to address those remaining differences, it is eminently
rational to give a different name to the legal status being conferred on
same-sex couples by the proposed bill. It is not enough to say that eligibility
for current federally funded State programs, or for some future programs
or statutory modifications unique to same-sex couples, could be confirmed
by some other means; under the rational basis test, the sole question is
whether a different name for the license being issued is a rational method
of identifying those persons who would be eligible for constitutionally permissible
differing treatment in future. It clearly is.
It is of no consequence that the actual purpose that has motivated the proposed
bill may be different from that just articulated. See Prudential Ins. Co.
v. Commissioner of Revenue, 429 Mass. 560, 568 (1999), citing FCC v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993). The criticism that my articulated
rationale "is but a post hoc, imaginative theory created . . . to justify
different treatment," and not the actual rationale of the bill's proponents,
ante at , is therefore beside the point. The rational basis test asks whether
there is any conceivable basis for the distinction at issue. The test does
not require that the Legislature disclose its actual motives or that those
motives be pure.4 Nor does the test even place the burden on the Commonwealth
to demonstrate the existence of a rational basis -- rather, it is on those
seeking to challenge the legislation to demonstrate the absence of any conceivable
basis. In my view, the proposed difference in name passes muster under the
rational basis test.
A more fundamental problem with the answer given to the Senate today is that
it does not apply the rational basis test, but instead announces, without
qualification, that the Massachusetts Constitution prohibits "invidious discrimination"
or "status discrimination" against, or the imposition of a "different status,"
"second-class status" or "stigma" on, same- sex couples.5 Ante at , , , .
Of course, if the Massachusetts Constitution contained any "equal rights
amendment" making sexual orientation the equivalent of the prohibited categories
of "sex, race, color, creed or national origin" (art. 1 of the Declaration
of Rights, as amended by art. 106 of the Amendments to the Massachusetts
Constitution), I would readily agree with those general pronouncements. However,
our Constitution contains no such amendment, and Goodridge itself did not
go so far as to accept the plaintiffs' argument that the court itself, absent
such an amendment, should nevertheless treat sexual orientation as a suspect
classification for purposes of equal protection analysis. Goodridge, supra
at 331 n.21. Nor did Goodridge rely on the alternative claim that a "fundamental
right" was at stake, such that a "strict scrutiny" analysis was to be applied.
Id. at 330-331. Rather, the court purported to apply a mere rational basis
analysis, the extremely deferential test that is applied to any classification
that does not impinge on fundamental rights or employ a suspect classification.
The Goodridge opinion employed repeated analogies to cases involving fundamental
rights and suspect classifications, while ostensibly not adopting either
predicate for strict scrutiny. Id. at 359-361 (Sosman, J., dissenting). Today's
answer to the Senate's question discards the fig leaf of the rational basis
test and, relying exclusively on the rhetoric rather than the purported reasoning
of Goodridge, assumes that discrimination on the basis of sexual orientation
is prohibited by our Constitution as if sexual orientation were indeed a
suspect classification.6 If that is the view of a majority of the Justices,
they should identify the new test they have apparently adopted for determining
that a classification ranks as "suspect" -- other types of persons making
claims of a denial of equal protection will need to know whether they, too,
can qualify as a "suspect" classification under that new test and thereby
obtain strict scrutiny analysis of any statute, regulation, or program that
uses that classification. No analysis of why sexual orientation should be
treated as a suspect classification was provided in Goodridge, and none is
provided today. Yet that is, apparently, the interpretation that is now being
given to Goodridge. The footnote disclaimer of any resort to "suspect classification"
and corresponding "strict scrutiny" analysis, ante at n.3, rings hollow in
light of the sweeping text of today's answer.
Here, as in Goodridge, I remain of the view that the rational basis test
is the test to be applied to this issue and, at least in theory, all but
one of the Justices in Goodridge applied that test. That same test should
be applied to the question before us, and, because this proposed legislation
passes that test, I would advise the Senate that Senate No. 2175 does not
violate the equal protection or due process requirements of the Constitution
of the Commonwealth and the Massachusetts Declaration of Rights.
Martha B. Sosman
1 The insignificance of according a different name to the same thing has long been recognized:
"What's in a name? That which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title."
W. Shakespeare, Romeo and Juliet, Act II, Scene II.
2 While many hope that, by way of litigation and lobbying efforts, same-sex
couples will ultimately obtain recognition of their Massachusetts "marriages"
by the Federal government and by other States, no one predicts, even on the
most optimistic scenario, that such widespread recognition will be achieved
anytime in the near future. It remains to be seen whether it will be achieved
at all, as it presently faces considerable -- and vehement -- opposition
from various quarters. The Legislature is entitled to structure and name
its licensing programs based on conditions as they presently exist. It is
not required to assume the success of yet-to-be-filed litigation and
lobbying efforts around the country.
3 Beyond the array of problems posed by differences in Federal law and the
law of other States, some provisions may need substantial modification merely
in order to make sense in their application to same-sex couples. For example,
the presumption of paternity (G. L. c. 209C, § 6) reflects reality with
respect to an overwhelming majority of those children born of a woman who
is married to a man. As to same-sex couples, however, who cannot conceive
and bear children without the aid of a third party, the presumption is, in
every case, a physical and biological impossibility. It is also expressly
gender based: if a married man impregnates a woman who is not his wife, the
law contains no presumption that overrides the biological mother's status
and presumes the child to be that of the biological father's wife. By comparison,
if a married woman becomes impregnated by a man who is not her husband, the
presumption makes her husband the
legal father of the child, depriving the biological father of what would
otherwise be his parental rights. See Michael H. v. Gerald D., 491 U.S. 110
(1989); Matter of Walter, 408 Mass. 584 (1990). Applying these concepts to
same-sex couples results in some troubling anomalies: applied literally,
the presumption would mean very different things based on whether the same-sex
couple was comprised of two women as opposed to two men. For the women, despite
the necessary involvement of a third party, the law would recognize the rights
of the "mother" who bore the child and presume that the mother's female spouse
was the child's "father" or legal "parent." For the men, the necessary involvement
of a third party would produce the exact opposite result -- the biological
mother of the child would retain all her rights, while one (but not both)
of the male spouses could claim parental rights as the child's father. Would
it not make sense to rethink precisely how this biologically impossible presumption
of paternity ought to apply to same-sex couples, and perhaps make some modification
that would clarify its operation in this novel context?
4 Remarkably, four Justices proclaim that, even if the Legislature creates
differences between these statutory schemes for good faith reasons in an
attempt to achieve equality, "separate nomenclature" could not be used because
its use would still "perpetuat[e] . . . discrimination." Ante at n.5. Apparently,
even if the statutory schemes are substantively different and those differences
stem from good and valid reasons,
there is some constitutional requirement that the statutory schemes bear
the exact same name. Again, no precedent whatsoever is cited for this proposition,
and it is nonsensical to suggest that substantively different programs must
be named identically.
5 Today's answer to the Senate also assumes that such "invidious discrimination"
may be found in the mere name of the proposed licensing scheme. If the name
chosen were itself insulting or derogatory in some fashion, I would agree,
but the term "civil union" is a perfectly dignified title for this program
-- it connotes no disrespect. Rather, four Justices today assume that anything
other than the precise word "marriage" is somehow demeaning. Not only do
we have an insistence that the name be identical to the name used to describe
the legal union of opposite-sex couples, but an apparent insistence that
the name include the word "marriage." From the dogmatic tenor of today's
answer to the Senate, it would appear that the court would find constitutional
infirmity in legislation calling the legal union
of same-sex couples by any name other than "marriage," even if that legislation
simultaneously provided that the union of opposite-sex couples was to be
called by the precise same name.
Today's answer assumes, in substance, that the "right to choose to marry"
as recognized in Goodridge, supra at 326, includes the constitutional right
to have the legal relationship bear that precise term. Given that Goodridge
itself recognized that the Legislature could abolish the institution of marriage
if it chose, id. at 326 n.14, it is hard to identify how the Constitution
would be violated if the Legislature chose merely to rename it. Rather than
imbuing the word "marriage" with constitutional significance, there is much
to be said for the argument that the secular legal institution, which has
gradually come to mean something very different from its original religious
counterpart, be given a name that distinguishes it from the religious sacrament
of "marriage." Different religions now take very differing positions on such
elemental matters as who is eligible to be "married" within that faith, or
whether (and under what circumstances) the bonds of that "marriage" may be
dissolved. The Legislature could, rationally and permissibly, decide that
the time has come to jettison the term "marriage" and to use some other term
to stand for the secular package of rights, benefits, privileges, and obligations
of couples who have entered into that civil, secular compact. Retaining the
same term merely perpetuates and adds to the confusion as to what the term
means. Whatever the nature of this constitutional right "to choose to marry,"
Goodridge, supra at 326, there is no right to have the State continue to
use any particular term with which to describe that legal relationship.
6 This assumption is most explicit in the answer's invocation of the concept
of "separate but equal," suggesting that the different naming of the statutory
scheme contains the same type of constitutional defect as that identified
in Brown v. Board of Educ., 347 U.S. 483, 495 (1954). See ante at . Of course,
that landmark case involved a classification (and resulting separation) based
on race, a classification that is expressly prohibited by our Constitution
(art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments
of the Massachusetts Constitution) and has long been recognized as a "suspect"
classification requiring strict scrutiny for purposes of equal protection
analysis under the Fourteenth Amendment to the United States Constitution.
See McLaughlin v. Florida, 379 U.S. 184, 191-192 (1964), citing Bolling v.
Sharpe, 347 U.S. 497, 499 (1954), and Korematsu v. United States, 323 U.S.
214, 216 (1944). Classifications based on race, and hence any separate but
allegedly equal treatment of the races, "must be viewed in light of the historical
fact that the central purpose of the Fourteenth Amendment was to eliminate
racial discrimination emanating from official sources in the States." McLaughlin
v. Florida, supra at 192. It is that "historical fact" concerning the "central
purpose" of the Fourteenth Amendment, id., not how "elegantly [it] decries
the denial of equal protection of the laws 'to any person,'" ante at n.3,
that subjects racial classifications to strict scrutiny. Here, we have no
constitutional provision that has, as either its "central" or even its peripheral
purpose, the elimination of discrimination based on sexual orientation. And,
notwithstanding the "elegant and universal pronouncements" of our Constitution,
id., all but a very few classifications are reviewed under the mere rational basis test.
I agree with the opinion of Justice Sosman.
Francis X. Spina
"Shorn of [its] emotion-laden invocations," Goodridge v. Department of Pub.
Health, ante 309, 361 (2003) (Sosman, J., dissenting), and reduced to its
legal essence, the court's Goodridge decision held that "[l]imiting the protections,
benefits, and obligations of civil marriage to opposite-sex couples violates
the basic premises of individual liberty and equality under law protected
by the Massachusetts Constitution." Goodridge v. Department of Pub. Health,
supra at 342. This holding, while monumental in effect, rested on the slender
reed of the court's conclusion that the Department of Public Health had failed
to articulate a rational basis for denying civil marriage to couples of the
same sex, while permitting civil marriage under Massachusetts law for similarly
situated heterosexual couples.
What was before the court, in fairness, was a yawning chasm between hundreds
of protections and benefits provided under Massachusetts law for some, and
none at all for others. That a classification with such attendant advantages
afforded to one group over another could not withstand scrutiny under the
rational basis standard does little to inform us about whether an entirely
different statutory scheme, such as the one pending before the Senate, that
provides all couples similarly situated with an identical bundle of legal
rights and benefits under licenses that differ in name only, would satisfy
that standard. A mere difference in name, that does not differentiate on
the basis of a constitutionally protected or suspect classification or create
any legally cognizable advantage for one group over another under Massachusetts
law, may not even raise a due process or equal protection claim under our
Constitution, and the rational basis test may be irrelevant to the court's
consideration of such a statute, once enacted.
Assuming, however, that a difference in statutory name would itself have
to rest on a rational basis, I would withhold judgment until such time as
the Legislature completed its deliberative process before concluding that
there was or was not such a basis. Although in normal circumstances, "[t]he
[L]egislature is not required to justify its classifications, nor provide
a record or finding in support of them," id. at 379 (Cordy, J., dissenting),
quoting Paro v. Longwood Hosp., 373 Mass. 645, 750 (1977), and its enactments
need only be supported by a "conceivable" rational basis, Goodridge v. Department
of Pub. Health, supra, quoting Fine v. Contributory Retirement Appeal Bd.,
401 Mass. 639, 641 (1988), it would not be surprising, in light of the Goodridge
decision, to find ample documentation of its reasoning and objectives in
the proceedings leading up to the legislation's enactment.
In sum, if the new statutory scheme is subjected to and passes the rational
basis test, it would be constitutional, and while one could speculate now
as to what conceivable bases might exist to justify the difference (see,
e.g., ante at (opinion of Sosman, J.), there is no reason to prejudge the
point, and no basis on which to pronounce the task to be impossible.
Robert J. Cordy
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