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November 19, 2003

Gay 'Marriage' OK'd by Massachusetts Court

by Pete Winn, CitizenLink associate editor

Pro-family activists say the ruling spotlights why the Massachusetts and U.S. constitutions must be amended to protect the traditional definition of marriage.

The much-anticipated decision on homosexual "marriage" from the Massachusetts Supreme Judicial Court arrived today — and it was just as bad as pro-family activists feared.

"We declare that barring an individual from the protections, benefits and obligations of civil marriage, solely because that person would marry a person of the same sex violates the Massachusetts Constitution," the court wrote.

Relying in part upon the recent U.S. Supreme Court decision in Lawrence v. Texas — which found a state ban on homosexual sodomy unconstitutional — the 4-3 decision from the Bay State's highest court defined "civil marriage" to mean "the voluntary union of two persons as spouses, to the exclusion of all others." As such, justices found no rational basis for prohibiting same-sex "marriage."

The court, which took months longer than expected to issue its decision, said it was "mindful" that the ruling "marks a change in the history of our marriage law."

"The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry," Chief Justice Margaret Marshall wrote in her majority opinion. "We conclude that it may not.

"Simply put, the government creates civil marriage," Marshall added. "In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution."

There was one silver lining in the otherwise black day: The court's ruling will not mean the immediate issuance of marriage licenses to homosexual couples. Justices stayed their order for 180 days to allow the Massachusetts Legislature to decide what action it might take to bring state law in line with the ruling.

'Blood Boiling' Judicial Tyranny

Pro-family groups and legal activists have been expecting something like this decision, and they weren't surprised.

Ron Crews, executive director of the Massachusetts Family Institute, said he takes some comfort in the fact that the Legislature will have a say in the matter.

"I'm very disappointed that the court did not uphold marriage as it has always been defined," Crews told CitizenLink. "But at least they left the ultimate decision to our state Legislature which, I believe, is the proper venue for decisions of this magnitude."

Family Research Council President Tony Perkins also took encouragement from the fact that the court stopped short of granting marriage licenses to gay couples. Still, the decision is a prime example of judicial tyranny, he said.

"It is inexcusable for this court to force the state Legislature to 'fix' its state constitution to make it comport with the pro-homosexual agenda of four court justices."

Conservative legal analysts spoke with one voice, saying the decision goes far beyond mere judicial activism. Jan LaRue, chief counsel at Concerned Women for America, said the extent of it "made her blood boil."

"It's not the court's decision to decide policy," LaRue said. "The court has no authority to make demands of the Legislature, they're violating the separation of powers mandated in the state constitution . . . These are the court jesters of the century."

"They have created a constitutional right to destroy marriage as [between] a man and a woman," said Matt Daniels, president of the Alliance for Marriage.

Mat Staver, president of Liberty Counsel, said the Supreme Judicial Court was absolutely correct only when it admitted that its decision flies in the face of American history and civil society. He also said a state court can't just rule arbitrarily that marriage is merely a civil institution.

"Massachusetts has gone further than any other court or legislature in the history of this country — and that is to actually grant marriage to same-sex couples," Staver said. "They granted the state's seal of approval of marriage of one man and woman, that's historically been part of the system in every civilized culture, to same-sex couples — and in doing so, they have irrevocably changed our society, unless something is done to combat this decision."

It's like Vermont, only different

The actual lawsuit behind the decision, Goodridge v. Massachusetts Dept. of Public Health, was filed by seven homosexual couples in 2001, after they were denied marriage licenses.

A lower court judge originally dismissed their suit in May 2002, and the couples appealed.

The Massachusetts Court had three basic options: 1) to order the state to give marriage licenses to the couples, as a Canadian court did; 2) to hold that same-sex couples don't have the right to wed, as at least one other state supreme court has done; or 3) to refer the matter to the Legislature.

In some ways, Massachusetts now finds itself in a situation similar to Vermont's in 1999, according to Pepperdine University Law School professor Douglas Kmiec, one of America's top constitutional scholars.

The Vermont Supreme Court told state lawmakers that year to take into account homosexuals' right to marry.

"It's like the Vermont decision in so far as it declares that the reservation of the benefits and privileges of marriage to the concept of traditional marriage between a man and a wife is unconstitutional under the Massachusetts state constitution," Kmiec said.

But the Massachusetts decision is also different than Vermont's, said Glen Lavy, an attorney with the Alliance Defense Fund (ADF).

"In Vermont, the court said that the Legislature must create some marriage equivalent status for same-sex couples," Lavy said. "In Massachusetts, the court simply redefined marriage. The court said that marriage is the voluntary union [of] spouses, to the exclusion of all others. The court claimed that it agreed that it is for the Legislature to decide social and policy issues, but then took upon itself the right make a change in the basic marriage laws. It redefined the basic institution of society; the court knew that it was doing that, and that it was rejecting history when it did it. It's amazing."

In addition, Crews pointed out there is a key difference between Massachusetts and Vermont, at least in terms of how lawmakers may react.

"Our Legislature has exhibited a little bit more backbone than the Vermont Legislature in terms of understanding the separation of powers," Crews said. "There have been some prior Supreme Judicial Court decisions that our Legislature just said no to. In fact, in a couple of situations just last year involving campaign finance, lawmakers just said 'No. We're not going to do what the court wants.' "

It's important to note that three justices wrote dissenting opinions, pointing out that the decision to allow same-sex "marriages" should be left to the Legislature, Crews added.

But now, the legal assault will intensify, according to ADF President Alan Sears.

"Radical homosexual activists have made their intentions clear — 'couples' will now converge on Massachusetts, 'marry,' and return to their respective states to file lawsuits to challenge Defense of Marriage Acts (DOMAs) and try to force the states to recognize their 'marriages,' " Sears said.

The ADF's Lavy said it is important to note that state courts in Arizona, Georgia, Indiana and New Jersey have settled similar cases differently than Massachusetts. That might be helpful not only for Massachusetts lawmakers, but for other states — and Congress — in dealing with this issue.

"The closest situation we had was in Georgia, in which a lesbian claimed that her civil union from Vermont was a marriage, and she was asking the Georgia courts to recognize it as a marriage," Lavy explained. "The Georgia Supreme Court essentially said, 'No, not even Vermont recognizes it as a marriage,' and besides that, 'even if Vermont did recognize it as a marriage, we wouldn't because we don't have to.' "

Indeed, 37 states already have DOMAs that say they will not recognize same-sex marriages. But most legal experts believe those laws will be challenged. And that's when the U.S. Supreme Court is likely to enter the picture.

"To the extent that Massachusetts creates a form of same-sex marriage, to the extent that people from other jurisdictions obtain it and then want to enforce it — at that point there is a federal interest in understanding whether or not states can object to the importation of this miscreation," Kmiec said. "That's a federal issue. That will go into the federal courts and ultimately end up in the U.S. Supreme Court. Not quickly — but ultimately."

A Wake-Up Call

The question now is: What needs to be done?

For FRC President Tony Perkins, the answer is clear.

"If we do not amend the Massachusetts state Constitution so that it explicitly protects marriage as the union of one man and one woman, and if we do not amend the U.S. Constitution with a federal marriage amendment that will protect marriage on the federal level, we will lose marriage in this nation."

Response from politicians who will be key to the defense of marriage is at least hopeful.

Massachusetts Gov. Mitt Romney said he would support an amendment to the state constitution protecting the traditional definition of marriage as the union of one man and one woman. And President Bush issued the following statement: "Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."

Focus on the Family's chairman, Dr. James C. Dobson, also weighed in, pointing out that if we don't protect marriage now, it may be lost for our children and our grandchildren -- perhaps lost forever.

"The dire ramifications of what is happening in the United States and other Western nations cannot be overstated," Dobson said. "For millennia, traditional marriage — the union of one man and one woman — has been celebrated by every culture on Earth as the cornerstone of society. But now, we have this activist court that is arrogant enough to say that those thousands of years of culture are simply wrong. We simply must act."

For suggestions on how you can help protect the traditional definition of marriage, including contact information for all 200 Massachusetts state legislators, visit our Web extra.

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