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The Massachusetts Supreme Court, on
Nov. 18, 2003
, by a vote of four to three, struck down all state laws limiting marriage
to members of the opposite sex. The
Massachusetts
legislature has 180 day to bring all laws into compliance with their ruling.
The entire opinion, when
printed out in 12-point type with standard margins, is 62 pages long.
It can be found at
http://www.masslaw.com/archives/ma/opin/sup/1017603.htm
The following are quotations that express the rationale
of the court.
MARSHALL
,
C.J. [writing for the majority] Marriage is a vital social institution. The
exclusive commitment of two individuals to each other nurtures love and
mutual support; it brings stability to our society. For those who choose to
marry, and for their children, marriage provides an abundance of legal,
financial, and social benefits. In return it imposes weighty legal,
financial, and social obligations. 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. We conclude that it may
not. The Massachusetts Constitution affirms the dignity and equality of all
individuals. It forbids the creation of second-class citizens. In reaching
our conclusion we have given full deference to the arguments made by the
Commonwealth. But it has failed to identify any constitutionally adequate
reason for denying civil marriage to same-sex couples. Page 3
We conclude that it may not. The
Massachusetts Constitution affirms the dignity and equality of all
individuals. It forbids the creation of second-class citizens. In reaching
our conclusion we have given full deference to the arguments made by the
Commonwealth. But it has failed to identify any constitutionally adequate
reason for denying civil marriage to same-sex couples.
Page 3
"Our obligation is to
define the liberty of all, not to mandate our own moral code."
Page 3
Whether the Commonwealth may use
its formidable regulatory authority to bar same-sex couples from civil
marriage is a question not previously addressed by a
Massachusetts
appellate court.[3]
It is a question the United States Supreme Court left open as a matter of
Federal law in Lawrence, supra at 2484, where it was not an issue. There,
the Court affirmed that the core concept of common human dignity protected
by the Fourteenth Amendment to the United States Constitution precludes
government intrusion into the deeply personal realms of consensual adult
expressions of intimacy and one's choice of an intimate partner.
Page 4
The plaintiffs argue that
because nothing in that licensing law specifically prohibits marriages
between persons of the same sex, we may interpret the statute to permit
"qualified same sex couples" to obtain marriage licenses, thereby
avoiding the question whether the law is constitutional. Page 6
The everyday meaning of
"marriage" is "[t]he legal union of a man and woman as
husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the
plaintiffs do not argue that the term "marriage" has ever had a
different meaning under
Massachusetts
law. Page 6
We have recognized the
long-standing statutory understanding, derived from the common law, that
"marriage" means the lawful union of a woman and a man. But that
history cannot and does not foreclose the constitutional question.
Page 7
Simply put, the government
creates civil marriage. In
Massachusetts
,
civil marriage is, and since pre-Colonial days has been, precisely what its
name implies: a wholly secular institution. Page 8
In a real sense, there are three
partners to every civil marriage: two willing spouses and an approving
State. Page 8
The United States Supreme Court
has described the right to marry as "of fundamental importance for all
individuals" and as "part of the fundamental 'right of privacy'
implicit in the Fourteenth Amendment's Due Process Clause." Page 11
Laws may not "interfere
directly and substantially with the right to marry." Page 11
For decades, indeed centuries,
in much of this country (including
Massachusetts
)
no lawful marriage was possible between white and black Americans. That long
history availed not when the Supreme Court of California held in 1948 that a
legislative prohibition against interracial marriage violated the due
process and equality guarantees of the Fourteenth Amendment, Perez v. Sharp,
32 Cal. 2d 711, 728 (1948), or when, nineteen years later, the United States
Supreme Court also held that a statutory bar to interracial marriage
violated the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967).[16]
Page 11
The Massachusetts Constitution
protects matters of personal liberty against government incursion as
zealously, and often more so, than does the Federal Constitution, even where
both Constitutions employ essentially the same language. See Planned
Parenthood League of Mass., Inc. v. Attorney Gen., 424
Mass.
586, 590 (1997); page 12
And
central to personal freedom and security is the assurance that the laws will
apply equally to persons in similar situations. "Absolute equality
before the law is a fundamental principle of our own Constitution."
Page 12
The
plaintiffs challenge the marriage statute on both equal protection and due
process grounds. Page 12
For
the reasons we explain below, we conclude that the marriage ban does not
meet the rational basis test for either due process or equal protection.
Because the statute does not survive rational basis review, we do not
consider the plaintiffs' arguments that this case merits strict judicial
scrutiny. Page 13
The judge in the Superior Court
endorsed the first rationale, holding that "the state's interest in
regulating marriage is based on the traditional concept that marriage's
primary purpose is procreation." This is incorrect. Our laws of civil
marriage do not privilege procreative heterosexual intercourse between
married people above every other form of adult intimacy and every other
means of creating a family. Page 13
The "marriage is
procreation" argument singles out the one unbridgeable difference
between same-sex and opposite-sex couples, and transforms that difference
into the essence of legal marriage. Like "Amendment 2" to the
Constitution of Colorado, which effectively denied homosexual persons
equality under the law and full access to the political process, the
marriage restriction impermissibly "identifies persons by a single
trait and then denies them protection across the board." Romer v.
Evans, 517
U.S.
620, 633 (1996). In so doing, the State's action confers an official stamp
of approval on the destructive stereotype that same-sex relationships are
inherently unstable and inferior to opposite-sex relationships and are not
worthy of respect.[25]
page 14
"The demographic changes of
the past century make it difficult to speak of an average American family.
The composition of families varies greatly from household to
household." Page 14
The "best interests of the
child" standard does not turn on a parent's sexual orientation or
marital status. Page 14
Recognizing the right of an
individual to marry a person of the same sex will not diminish the validity
or dignity of opposite-sex marriage, any more than recognizing the right of
an individual to marry a person of a different race devalues the marriage of
a person who marries someone of her own race.[28]
Page 16
We also reject the argument
suggested by the department, and elaborated by some amici, that expanding
the institution of civil marriage in
Massachusetts
to include same-sex couples will lead to interstate conflict. Page 17
Several amici suggest that
prohibiting marriage by same-sex couples reflects community consensus that
homosexual conduct is immoral. Yet
Massachusetts
has a strong affirmative policy of preventing discrimination on the basis of
sexual orientation. Page 17
The marriage ban works a deep
and scarring hardship on a very real segment of the community for no
rational reason. The absence of any reasonable relationship between, on the
one hand, an absolute disqualification of same-sex couples who wish to enter
into civil marriage and, on the other, protection of public health, safety,
or general welfare, suggests that the marriage restriction is rooted in
persistent prejudices against persons who are (or who are believed to be)
homosexual.[33]
"The Constitution cannot control such prejudices but neither can it
tolerate them. Private biases may be outside the reach of the law, but the
law cannot, directly or indirectly, give them effect." Palmore v.
Sidoti, 466
U.S.
429, 433 (1984) (construing Fourteenth Amendment). Limiting the protections,
benefits, and obligations of civil marriage to opposite-sex couples violates
the basic premises of individual liberty and equality under law protected by
the Massachusetts Constitution. Page 18
We construe civil marriage to
mean the voluntary union of two persons as spouses, to the exclusion of all
others. Page 19
In their complaint the
plaintiffs request only a declaration that their exclusion and the exclusion
of other qualified same-sex couples from access to civil marriage violates
Massachusetts
law. 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. We vacate
the summary judgment for the department. We remand this case to the Superior
Court for entry of judgment consistent with this opinion. Entry of judgment
shall be stayed for 180 days to permit the Legislature to take such action
as it may deem appropriate in light of this opinion. See, e.g., Michaud v.
Sheriff of Essex County, 390
Mass.
523, 535-536 (1983).
So ordered.
Page 19
GREANEY, J. (concurring). I
agree with the result reached by the court, the remedy ordered, and much of
the reasoning in the court's opinion. In my view, however, the case is more
directly resolved using traditional equal protection analysis. (Page 19)
The restriction creates a
straightforward case of discrimination that disqualifies an entire group of
our citizens and their families from participation in an institution of
paramount legal and social importance. Page 19
Because our marriage statutes
intend, and state, the ordinary understanding that marriage under our law
consists only of a union between a man and a woman, they create a statutory
classification based on the sex of the two people who wish to marry. Page 20
The equal protection infirmity
at work here is strikingly similar to (although, perhaps, more subtle than)
the invidious discrimination perpetuated by
Virginia
's
antimiscegenation laws and unveiled in the decision of Loving v.
Virginia
,
supra. In its landmark decision striking down Virginia's ban on marriages
between Caucasians and members of any other race on both equal protection
and substantive due process grounds, the United States Supreme Court soundly
rejected the proposition that the equal application of the ban (i.e., that
it applied equally to whites and blacks) made unnecessary the strict
scrutiny analysis traditionally required of statutes drawing classifications
according to race, see id. at 8-9, and concluded that "restricting the
freedom to marry solely because of racial classifications violates the
central meaning of the Equal Protection Clause."
Id.
at 12. That our marriage laws, unlike antimiscegenation laws, were not
enacted purposely to discriminate in no way neutralizes their present
discriminatory character. Page
20
But, as matter of constitutional
law, neither the mantra of tradition, nor individual conviction, can justify
the perpetuation of a hierarchy in which couples of the same sex and their
families are deemed less worthy of social and legal recognition than couples
of the opposite sex and their families.
Page 22
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