In a landmark decision, the Massachusetts Supreme Judicial Court ruled last Tuesday that gay and lesbian couples are no longer excluded from obtaining civil marriages in Massachusetts. The 4-3 ruling in Goodridge v. Department of Public Health, filed by New England's Gay and Lesbian Advocates and Defenders (GLAD), is the first of its kind by a final appellate court in the United States.

The only other state to come close is Vermont, which ruled in favor of same-sex civil unions in the summer of 2000. The Vermont Supreme Court held that it was a violation of the Common Benefits Clause of Chapter I, Article 7 of Vermont's constitution to deny same-sex couples the right to marry or enter into a substantially comparable and legally recognized relationship.

GLAD Staff Attorney Karen Loewy '96 said the Goodridge case was filed by GLAD in April 2001 on behalf of seven gay and lesbian couples living in Massachusetts.

GLAD filed a complaint after these couples were denied marriage licenses. Loewy said that these couples applied for marriage licenses to strengthen their families, gain legal protection, and provide greater security for their children and their surviving partner.

Loewy said that the Court's ruling is based on the principles of due process and on equality provisions of the state constitution. Calling on the constitution's "free and equal" clause, the court held that there is no rational reason for discrimination, and marriage is a right deserved by all.

"The (Massachusetts) Supreme Court ruled that civil marriage is a civil right and that same-sex couples share in that right," Loewy said.

Coordinator of Shalem, Brandeis Hillel's GLBT Organization, Kerri Sheingold '04 said that Justice Margaret Marshall, who wrote the opinion for the Court, used several other cases to justify her position. Among others, Marshall referred to Loving v. Virginia (1967) and Brown v. Board of Education (1954). In Loving v. Virginia, a federal court case for interracial marriage, the US Supreme Court declared that Virginia needed eliminate a law prohibiting interracial marriage.

The defendants, Richard and Mildred Loving, had married in 1958 in Washington, D.C. because their home state of Virginia still upheld the antimiscegenation law, which deemed interracial marriages illegal.

In Brown v. Board of Education, the Supreme Court unanimously declared that separate educational facilities are inherently unequal and violate the 14th Amendment to the United States Constitution, which guarantees all citizens "equal protection of the laws."

This same principle applies to gay marriages. "Because marriage confers so many rights and privileges, to deny certain couples those rights is not equal treatment under the law," Sheingold said.

"They're now going to have access to all the protections marriage brings. One of those protections is being able to say they are married and have the ability for their relationship to be recognized as the intimate committed relationship it is. Being married communicates to the world who you are to each other," she continued.

Justin Gelfand '05, co-editor of the Brandeis conservative-libertarian magazine Concord Bridge, also said he lauded the Court's decision.
"I think it's an unambiguously great decision. It's absolutely ridiculous not to extend the institution of marriage to specific demographics of people."

Marshall Miller, co-founder of the Alternatives to Marriage Project, a national organization for unmarried people, said he was thrilled with this ruling.

"I think it's really wonderful news, since everyone should have the right to be able to marry if they choose," he said. Miller described the Alternatives to Marriage Project as a group of those who can't marry, choose not to marry, or live together and don't marry.

"(The ruling) recognizes the family diversity that exists today, and that there are many different types of families," Miller added.

Other states may follow

"There are similar court cases going on it other states (dealing with this issue)," Sheingold said. "Now that it started, I think we will see more states follow."

"It's been a long time coming. They've had this fight in a lot of states because a lot of LGBT (Lesbian/gay/bisexual/transgender) defense groups had brought similar court cases in other states, and judges have thrown it out and said that gay people don't have the right to civil marriage," Triskelion Outreach Coordinator Andrew Wiechert '06 said.

"This is one step in a long road of recognizing and supporting family diversity. It's definitely been a year of great news," Miller said, noting that the U.S. Supreme Court struck down sodomy laws over the summer.

Nothing Set in Stone

The Massachusetts ruling, however, is still subject to change. Loewy explained that the court stayed its decision for 180 days to give the state legislature time to conform state marriage laws with the Court's decision.
Sheingold said that her joy about the ruling is tinged with some nervousness.

"We're all very nervous that this decision will not stick, that it will be turned from marriage into civil union.

She said, "The problem with (civil union) is it confers a second-class citizenship upon same-sex couples. The civil unions are a step in the right direction, but they are still not full and equal treatment under the law because Brown v. Board of Education states that separate but equal is inherently unequal," Sheingold said.

"It will be very interesting to watch the debate that follows, but I think the court has made clear what its wishes are, and public opinion is shifting in favor of recognizing same-sex marriage," Miller commented.

"One of the biggest issues is that civil union doesn't transfer between states, but marriage does and states currently recognize marriages from other states, and it's going to cause a lot of issues and problems if they only recognize certain marriages," Sheingold said, adding that legal and paperwork problems are sure to develop.

Right-wing religious groups have already condemned the ruling. Wiechert noted that political groups associated with the religious right-wing have pressured legislators in the Bay State to amend the constitutions to forbid same-sex marriage in Massachusetts. The Family Research Council has thus far been the main organization to take a stance against the ruling. This organization says it champions marriage and family as the foundation of civilization. It values human life, upholds the institutions of marriage and the family and believes that God is the author of life, liberty and the family.

"While we are certainly relieved that the court stopped short of granting marriage licenses to the homosexual couples demanding them, 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," Family Research Council President Tony Perkins said at a press conference in Washington , D.C. on the day of the ruling.

Perkins continued, "This is the wake-up call for both the American public and our elected officials. 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."

Samuel Dewey '06, an aspiring attorney, who said he looked at the ruling in a purely legal manner, said the Court's decision was an error. "As a legal manner, I think the decision was an error. I think the court was wrong to hold that there was no rational basis for the state to limit marriage to heterosexual couples. This decision was highly out of the mainstream jurisprudence, which is amply demonstrated by several examples."

Dewey continued to say that the Court's dissent gives rational bases for the existing statute. One he specified was the preservation of the traditional nuclear family geared toward child-rearing. "The extreme nature of the Court's opinion in this regard can be demonstrated by the fact that the most cogent argument I have ever heard in favor of finding a rational basis for heterosexual marriage laws was delivered by Professor (Lawrence) Tribe (of Harvard Law School) arguing for Hardwick in Bowers v. Hardwick."

In Bowers v. Hardwick (1986), the defendant Michael Hardwick was a bartender in a gay bar in Atlanta. He was targeted by a police officer let into Hardwick's home. The officer entered the bedroom where Hardwick was engaged in oral sex with his partner. The men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward to have the sodomy law declared unconstitutional.
Bowers was a response to a particularly insulting police action, and repeal advocates hoped that the case would put an end to sodomy laws in the United States when it reached the Supreme Court. But the 5-4 decision found that nothing in the constitution would extend to the fundamental right to homosexuals to engage in acts of consensual sodomy.

"Every other court to consider this question had upheld a rational basis for the limiting of marriages to heterosexual couples," Dewey said.
Also, he added, "the judges who dissented in this case were appointed by Republican governors, but they are still moderate judges. There are no Justice (Antonin) Scalias on the Massachusetts Supreme Judicial Court, and I think the fact is indicative to how far out of the mainstream this opinion is."

Another issue in the presidential race

Since this decision was affirmed shortly before the start of the Democratic presidential primaries and exactly a year prior to the 2004 presidential election, many say that gay rights will undoubtedly be part of the campaigns.

"It's going to be a bitter issue on both sides," Wiechert said. "It's already taking center stage in the 2004 presidential election, so people are looking for a candidate that's going to take one side or another."

"It's obviously something that President Bush and Republican candidates on the whole oppose and, surprisingly, any Democrat that stands a chance on the Democratic ticket also opposes," Gelfand said.

Wiechert said that all Democratic candidates for president approve at least civil unions for same-sex couples.

"A lot of religious right-wing conservative groups are going to be pushing the angle that (same-sex marriage) destroys the concept of marriage that it be between and man and woman," Wiechert continued.

Miller says he feels that younger people will be able to identify with this issue during the elections.

"Younger people tend to favor same-sex marriage much more than older people do," he said. He said that generational shifts make a difference; younger people, he explained, tend to be more accepting.
Miller concluded, "This is a great moment for college students to say ... we think it's OK to be gay, and we think if committed, same-sex couples want to get married, they should be able to.