Bay State Win For Gay Marriage

Kim McGinn of Somerville, Mass., left, and Jen Chiasson of Boston, right, embrace Tuesday morning, Nov. 18, 2003, after learning of the Massachusetts Supreme Judicial Court's ruling that same-sex couples are legally entitled to wed under the state constitution.
Massachusetts' highest court ruled 4-3 Tuesday that the state's ban on same-sex marriage is unconstitutional and gave lawmakers 180 days to fix the problem.

The court did not issue marriage licenses to the seven couples who sued and left the details to the legislature.

"Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual's liberty and due process rights," the majority opinion said. "And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations."

The Supreme Judicial Court left the details of the same-sex marriage issue to the Legislature. Advocates said the case took a significant step beyond the 1999 Vermont Supreme Court decision that led to civil unions in that state.

Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said the only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period.

Vermont-style civil unions would not be enough, she said, because that would fall short of marriage. A constitutional ban on gay marriage could not be enacted in Massachusetts until 2006 because it takes seveal years to change the state's constitution.

"This is a very good day for gay and lesbian families in Massachusetts and throughout the country," Bonauto said.

But the issue may find a hostile audience in the Massachusetts Legislature, which has been considering a constitutional amendment that would legally define a marriage as a union between one man and one woman. The state's powerful Speaker of the House, Tom Finneran of Boston, has endorsed this proposal.

And Republican Gov. Mitt Romney criticizing the court ruling, saying: "Marriage is an institution between a man and a woman. I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman."

CBS News Legal Analyst Andrew Cohen notes that the Court did not explicitly authorize gay marriages -- it merely handed the issue back to the state Legislature, which seems to be on record as supporting only heterosexual marriage. So this is an issue that easily could be back before the court.

Even if the legislature crafts some law that permits these types of unions -- I suggest that is a longshot -- it is unclear how much recognition those unions would get in other states. And it's also unclear what would happen if Congress passed a federal law that supported heterosexual marriage to the exclusion of same-sex unions. This area of the law looks to be getting quite messy, Cohen said, predicting that the issue will eventually land in the U.S. Supreme Court.

A key group of state lawmakers also has recently been working behind the scenes to craft civil union legislation similar to the law passed in Vermont.

Gay and lesbian advocates have been cheered by a series of advances this year, including a U.S. Supreme Court decision striking down anti-sodomy laws, the ordination of an openly gay bishop in the Episcopal Church, and a Canadian appeals court ruling that it was unconstitutional to deny gay couples the same marriage rights as heterosexual couples. Belgium and the Netherlands also have legalized gay marriage.

In addition to Vermont, courts in Hawaii and Alaska have previously ruled that the states did not have a right to deny marriage to gay couples. In those two states, the decisions were followed by the adoption of constitutional amendments limiting marriage to heterosexual couples. No American court has ordered the issuance of a marriage license — a privilege reserved for heterosexual couples.

The U.S. House is currently considering a constitutional ban on gay marriage. President George W. Bush, although he believes marriage should be defined as a union between one man and one woman, recently said that a constitutional amendment is not yet necessary.

The Massachusetts case began in 2001, when seven gay couples went to their city and town halls to obtain marriage licenses. All were denied, leading them to sue the state Department of Public Health, which administers the state's marriage laws.

A judge threw out the case in 2002, ruling that nothing in state law gives gay couples the right to marry. The couples appealed to the Supreme Judicial Court.

The plaintiffs argued that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

The state Attorney General's office, which defended the Department of Public Health, argued that neither state law nor its constitution created a right to same-sex marriage. The state also said any decision to extend marriage to same-sex partners should be made by elected lawmakers, not the courts.