Misreading the SJC on gay marriage

By James M. Shannon, 11/30/2003

It is hard to understand how any of our political leaders can argue that the recent Supreme Judicial Court decision could mean anything but extending civil marriage to same-sex couples. The constitutional principle applied by the court was simple, but profound - that all citizens must be treated equally. Chief Justice Marshall wrote with plain-spoken eloquence: "The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second class citizens." The court stated that it views civil marriage as an institution that does more than determine legal rights over tangible things like the way couples may own real estate and what tax breaks they are entitled to. Rather, the court takes a view of marriage as something far more important, "because it fulfils yearnings for security, safe haven, and connection that express our common humanity - and the decision whether and whom to marry is among life's momentous acts of self definition."

To guarantee that right to all, the court said it was specifically redefining marriage to include same-sex couples. Say what you will about the decision, but its language and purpose are clear: to allow gay and lesbian couples to marry under the laws of Massachusetts.

That is why it is troubling that some of our state's officials are arguing that the decision leaves room for something short of civil marriage, a Vermont-style civil union statute, to satisfy the Constitution's requirement of equal protection under the law. While civil union addresses many of the tangible legal concerns raised by denying gays and lesbians the right to marry, no one suggests that it is equal to marriage in every respect or accorded by society the same status as marriage. But these officials seem to be saying that a separate system of civil union for gay and lesbian couples would be equal to civil marriage.

The window that they crawl through to argue that the court's use of the word "marriage" did not really mean "marriage" is a 180-day period given to the Legislature to tidy up some references to marriage in state law that would seem to exclude same-sex couples. It is not reasonable to argue that this language negates the lengthy discussion by the court of why denying marriage to gays and lesbians is constitutionally impermissible.

Many in the legal community view the decision as a milestone in line with the great tradition of the civil rights decisions of the last century. But three justices of the court strongly disagreed with the majority and wrote dissents lamenting that the court was intruding in an area reserved for the Legislature; some legal scholars agree with their reasoning.

We can expect the debate that has been stimulated by the case over the role of the courts in society to go on for a long time. Those who disagree with the court will try to influence future courts through the force of their arguments. A more radical approach might be pursued by other opponents of the decision who have signaled their intention to seek to amend the Constitution to undo the decision.

But a reasoned, vigorous criticism of the court or a campaign to amend the Constitution to reverse what some opponents view as an overly expansive application of constitutional protections are quite different from an effort by public officials to make this decision go away by misreading its plain purpose.

Polls show substantial support for the court's decision among Massachusetts residents. Still the prospect of same-sex marriage has elicited a strong emotional response from people in our state and around the country who are against it for one reason or another. Groundbreaking civil rights cases have usually had that effect but it is up to the Supreme Judicial Court to make final constitutional determinations, not the governor or the attorney general or the Legislature.

Six months from now in Massachusetts marriage licenses will be issued to gay and lesbian couples for the first time anywhere in America. The country will want to see whether we can accept Justice John Greaney's challenge to extend to those members of the gay and lesbian community who choose to marry "our full acceptance, tolerance, and respect." Responsible public officials, even those who disagree with the court's reasoning, should understand how important it is that we fairly implement this decision.

James M. Shannon is a former Massachusetts attorney general.

'Freedom to Marry Rings' image upper right © H. Mitchell.