The highest court in Massachusetts heard the case of seven same-gender couples who sued the state for the right to wed. The court ruled that the state had not proven why same-gender couples should not marry. The decision initiated an ongoing wave of lawsuits and legislation from proponents as well as opponents to same-gender marriage and same-gender civil unions.
On November 18, 2003, the Massachusetts Supreme Judicial Court (SJC) ruled, in Goodridge v. Department of Public Health, that the Massachusetts state constitution required the issuance of marriage licenses to same-gender couples. That decision, though surprising to many, represented the endpoint of a series of events that serve as background and context for the SJC ruling. It is important to acknowledge this background as foundational to the issue of same-gender marriage.
Even prior to this case, Massachusetts was regarded as a liberal state with respect to GLBT rights. It was the second state to have passed (in 1989) antidiscrimination protection based on a person’s sexual orientation. The state already had granted a degree of legal recognition to same-gender families by legalizing second-parent adoption.
An important context was building outside Massachusetts as well. Same-gender marriage had been a topic of public debate for more than a decade prior to the SJC ruling. In 1991, three same-gender couples in Hawaii sued for the right to marry. When their initial suit was denied, they appealed to the Hawaii Supreme Court. That court ruled in 1993 that the state must demonstrate a compelling state interest for refusing marriage to same-gender couples; in 1996, the court ruled that the state had not met that standard. In 1998, however, the citizens of Hawaii passed an amendment to their state constitution that allowed the state to circumvent its own equal protection clause in the case of same-gender couples wanting to marry.
The backlash that began with Hawaii’s constitutional amendment spread, as a number of states soon passed laws blocking same-gender couples from marriage. At the federal level, largely in reaction to the Hawaii case and the possibility that other states might move in similar directions, Congress passed the Defense of Marriage Act
Proponents of same-gender marriage were also busy in the wake of events in Hawaii. In 1997, attorneys Mary Bonauto, Beth Robinson, and Susan Murray filed a lawsuit on behalf of six plaintiffs challenging the exclusion of same-gender couples from marriage in Vermont. When they lost this case, the legal team appealed to the Vermont Supreme Court. The Supreme Court’s ruling, announced on December 20, 1999, concluded that the refusal of marriage to same-gender couples violated Vermont’s constitution, and then instructed the state legislature to fashion a remedy.
Vermont’s legislature, amid much acrimony, settled on the creation of civil unions—an arrangement that gave same-gender couples access to the privileges and responsibilities granted by the state to married couples, but without the social and psychological benefit inherent in the name and status of marriage. The first civil unions in Vermont took place on July 1, 2000. In the aftermath, legislators who had supported the creation of civil unions, as well as Vermont governor Howard Dean,
Another event that forms a significant backdrop for the Massachusetts ruling on same-gender marriage was the U.S. Supreme Court’s decision in the case of Lawrence v. Texas, issued on June 26, 2003. That decision held that GLB people have a constitutional right to form intimate relationships, including sexual relationships; the court ruled that sodomy laws were unconstitutional not just in Texas where the suit originated but also throughout the country.
In the Goodridge case, originally filed in April, 2001, two years before the Lawrence decision, seven same-gender couples, including lead plaintiffs Julie and Hillary Goodridge, complained that the state of Massachusetts violated its constitutional provision of equality for all citizens by blocking their access to marriage. After a trial court rejected this argument, the plaintiffs’ attorney, Bonauto, filed an appeal to the Massachusetts SJC. During her appearance before the SJC, Bonauto explicitly spoke against the creation of civil unions as a remedy for discrimination against same-gender couples. The very word “marriage,” she argued, has significant, positive meaning, and thus it plays a major part in making marriage, and the protections it affords, so meaningful to society.
The Massachusetts SJC had already heard arguments in the Goodridge case but had not yet issued their ruling by the time the Lawrence ruling was handed down. Perhaps because of the implications of this decision, the SJC justices delayed their ruling beyond their own internally imposed deadline for rendering the decision. On November 18, 2003, the SJC announced its decision: By a 4-3 vote, the Massachusetts high court ruled that the state could no longer deny marriage to same-gender couples. The court’s opinion, with Massachusetts chief justice Margaret H. Marshall writing for the majority, explicitly acknowledged the impact of the earlier U.S. Supreme Court ruling in the Lawrence case. The court stayed its ruling for 180 days in order to give the state legislature time to make necessary changes to laws and practices.
The decision generated strong reaction both among supporters as well as opponents of same-gender marriage. Conservatives immediately initiated efforts to undermine the ruling. Massachusetts governor Mitt Romney made clear his intention to do what he could to ensure the ruling never took effect. Opponents of same-gender marriage seized on the 180-day stay as an opportunity to interrupt the progression toward full marriage rights. Members of the legislature made a formal request to the SJC for an opinion on creating civil unions rather than granting marriage to same-gender couples. The SJC response was unequivocal: Civil unions were not acceptable; same-gender couples would have access not only to the rights, privileges, and responsibilities of marriage but also to the name and status of marriage as well.
Members of the legislature who opposed same-gender marriage moved to take legislative control over the situation. In February, 2004, they convened a constitutional convention, a gathering of both houses of the Massachusetts legislature, to consider the issue. While the legislature met in session, legislators and lobbyists for both sides were engaged in political maneuvers and behind-the-scenes strategizing. Some opponents of same-gender marriage worked to fashion an amendment to the state constitution that would ban legal recognition for any same-gender relationships. Others preferred a constitutional amendment that would ban marriage but would create civil unions for same-gender couples. Proponents of same-gender marriage lobbied against any constitutional amendment. The constitutional convention closed without having agreed on an amendment; another meeting of the convention had been scheduled for March.
Political maneuvering continued between sessions, and just before the March convention, leaders of both chambers sent a joint letter to legislators, urging them to agree to a compromise amendment. During the convention, some legislators and lobbyists again engaged in legal wrangling, even as other legislators took to the podium to express their views on same-gender marriage. Throughout both meetings of the constitutional convention, hundreds of GLB citizens and their allies held watch outside the legislative chamber, and some legislators spoke of having been won over by their presence.
The second convention ended with the passage of a proposed amendment, one that would ban marriage and create civil unions for same-gender couples. This amendment reflected a compromise among three groups of legislators: those who wanted no state recognition of same-gender relationships, those who wanted full marriage rights for same-gender couples, and those who promoted civil unions at the expense of marriage for same-gender couples. According to Massachusetts law, the legislative passage of an amendment is only the first step in a multistage process. Before an amendment can become law, it must be approved by a second constitutional convention that would meet in a new legislative session, in this case, in 2005. The amendment then would have to be ratified by a majority of Massachusetts voters in 2006.
This extended time line for passing a constitutional amendment kept the legislature’s block of the SJC decision from going into effect: On May 17, 2004, same-gender marriage became legal in Massachusetts. Just after midnight on that date, Marsha Hams and Susan Shepherd applied for their marriage license in Cambridge, becoming the first same-gender couple to be granted a fully legal and uncontested license to marry in the United States. Later that same day, having received a waiver of the usual three-day delay between license and marriage, Hillary and Julie Goodridge became the first same-gender couple to marry. By the end of that day, at least nine hundred same-gender couples had been granted marriage licenses in the Commonwealth of Massachusetts.
Even as this milestone event occurred, efforts were underway to delimit access to marriage. Governor Romney invoked a 1913 state statute that prohibited issuing marriage licenses to out-of-state couples whose marriage would not be legal in their home states. The statute, originally designed to prevent out-of-state interracial couples from marrying in Massachusetts, had not been applied for decades. A number of city clerks defied the long-dormant statute and issued licenses to couples without proof of residency.
The long-term impact of the same-gender marriage decision in Massachusetts has yet to be felt. A brief review of the decision’s short-term impact might reflect what it could mean for the future, however.
Same-gender couples from other states have had a difficult time having their relationships recognized outside Massachusetts. Some who were able to slip past the 1913 statute have encountered resistance from agencies within their home states. Many whose licenses were voided by their home states filed a suit, with Mary Bonauto acting as their attorney. They lost the suit in court, but Bonauto appealled the ruling.
In Massachusetts, a familiar comment in the face of so many newly married same-gender couples is the simple declaration: The sky has not fallen. Nonetheless, a very significant backlash is evident in the state and throughout the country. Efforts to roll back the freedom to marry continue in Massachusetts. Some of these efforts have been spearheaded by national organizations. The Roman Catholic Church
Elsewhere, the backlash has been dramatic as well. Beginning even before the marriages of same-gender couples in Massachusetts, and often explicitly in response to the Massachusetts decision, many states had considered legislation and citizen referenda to institute new or to strengthen existing prohibitions against same-gender marriage. Eleven states voted on such referenda in the November, 2004, election, passing legislation banning same-gender marriage.
The backlash also occurred at the federal level. President George W. Bush
The backlash has been significant, but so, too, have efforts in support of same-gender marriages. In February, 2004, San Francisco’s mayor Gavin Newsom, a Republican, authorized clerks in that city to issue licenses to same-gender couples. More than four thousand couples—including longtime partners and lesbian activists Del Martin and Phyllis Lyon—received licenses before judges in the state stopped the mayor’s mandate. The city has since sued the state of California, challenging the state’s ban on same-gender marriages.
Also in February, 2004, Mayor Jason West
Lawsuits challenging prohibitions on same-gender marriage made their way through the courts in a number of states, and the new laws against same-gender marriage passed in eleven states in the November, 2004, elections, despite the Supreme Court’s refusal to overturn the Massachusetts case that same month, will make the challenge against these prohibitions more difficult and complex.
-
Bonauto, Mary L. “Civil Marriage as a Locus of Civil Rights Struggles.” Human Rights 30, no. 3 (Summer, 2003): 3-7. -
Cahill, Sean. Same-Sex Marriage in the United States: Focus on the Facts. Lanham, Md.: Lexington Books, 2004. -
Curry, Hayden, Denis Clifford, and Frederick Hertz. A Legal Guide for Lesbian and Gay Couples. Berkeley, Calif.: Nolo Press, 2004. -
Goldberg, Suzanne B. “A Historical Guide to the Future of Marriage for Same-Sex Couples.” Columbia Journal of Gender & Law 15 (2006): 249-272. -
Graff, E. J. What Is Marriage For? The Strange Social History of Our Most Intimate Institution. Boston: Beacon Press, 1999. -
Jordan, Mark D. Blessing Same-sex Unions: The Perils of Queer Romance and the Confusions of Christian Marriage. Chicago: University of Chicago Press, 2005. -
Kotulski, Davina. Why You Should Give a Damn About Gay Marriage. Los Angeles: Alyson, 2004. -
Massachusetts Trial Court Law Libraries. “Mass. Law About Same-Sex Marriage.” http://www.lawlib.state.ma.us/gaymarriage.html. -
Moats, David. Civil Wars: A Battle for Gay Marriage. Orlando, Fla.: Harcourt, 2004. -
Samar, Vincent J. “Privacy and the Debate over Same-Sex Marriage Versus Unions” DePaul Law Review 54 (2005): 783-804. -
“Same-Sex Marriage: A Selective Bibliography of the Legal Literature.” Law Library, Rutgers School of Law. http://law-library.rutgers.edu/SSM.html. -
Wolfson, Evan. Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. New York: Simon & Schuster, 2004.
1981: Gay and Lesbian Palimony Suits Emerge
1993-1996: Hawaii Opens Door to Same-Gender Marriages
August 6, 1994: Japanese American Citizens League Supports Same-Gender Marriage
September 21, 1996: U.S. President Clinton Signs Defense of Marriage Act
December 20, 1999: Baker v. Vermont Leads to Recognition of Same-Gender Civil Unions
February 21, 2003: Australian Court Validates Transsexual Marriage
April, 2003: Buenos Aires Recognizes Same-Gender Civil Unions
June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage
November 18, 2004: United Kingdom Legalizes Same-Gender Civil Partnerships
April 4, 2005: United Kingdom’s Gender Recognition Act Legalizes Transsexual Marriage
June 30, 2005: Spain Legalizes Same-Gender Marriage