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SJC: Gay marriage legal in Mass.

Court gives the state six months to comply with ruling

The Supreme Judicial Court today became the nation's first state supreme court to rule that same-sex couples have the legal right to marry.

"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," Chief Justice Margaret Marshall wrote in the 4-3 decision.

The ruling won't take effect for 180 days in order to allow the Legislature "to take such action as it may deem appropriate in light of this opinion," the court ruled in its 50-page decision. Since the SJC is the ultimate authority on the state constitution, however, the Legislature cannot overturn today's decision -- nor would the US Supreme Court agree to interpret a state's constitution.

Opponents could fight for a constitutional amendment, but the soonest that could be placed on the ballot is 2006. The Legislature has already been considering several bills, including one that would allow gay marriage, that would grant benefits to same-sex couples.

The SJC ruling held that the Massachusetts constitution "forbids the creation of second-class citizens." The state Attorney General's office, which argued to the court that state law doesn't allow gay couples to marry, "has failed to identify any constitutionally adequate reason for denying civil marraige to same-sex couples," Marshall wrote.

The court rejected the claim of a lower court judge that the primary purpose of marriage was procreation.

Marshall was joined in the majority opinion by Justices John Greaney, Roderick Ireland, and Judith Cowin. Justices Francis Spina, Martha Sosman, and Robert Cordy opposed the decision.

In the dissent, Cordy wrote that the state's marriage statute historically described the union of one man and one woman. The law did not violate the Massachusetts constitution because "the Legislature could rationally conclude that it furthers the legitimate state purpose of ensuring, promoting and supporting an optimal social structure for the bearing and raising of children," Cordy wrote.

The SJC case began in 2001 after seven same-sex couples from Boston to Northampton to Orleans went to their local city or town offices and applied for marriage licenses. When their requests were rejected, they filed a lawsuit in Suffolk Superior Court.

The couples sued the state Department of Public Health, which administers marriage laws and requires blood tests. In May 2002, Suffolk Superior Court Judge Thomas E. Connolly threw out the case before it went to trial.

Connolly ruled that the state constitution does not give same-sex couples the right to marry. Children have long been considered central to marriage, he wrote, and same-sex couples cannot bear children. The seven couples appealed to the SJC, and the justices agreed to hear the case.

The court battle drew national attention as the latest battleground for gay marriage. Hundreds of groups from Dorchester to Australia weighed in on the case, filing more than two dozen friend-of-the-court briefs.

State attorney generals in Utah, Nebraska, and South Dakota opposed the seven couples. So did religious groups from Catholics to fundamental Protestants to Orthodox Jews. Dozens of groups, including state and local bar associations, also supported the seven couples.

Since the SJC heard the case in early March, there have been significant legal developments in gay rights. In June, Canada voted to allow same-sex marraige after the Ontario Court of Appeals declared prohibitions against homosexual marriage unconstitutional.

"The restriction against same-sex marriage is an offense to the dignity of lesbians and gays, because it limits the range of relationship options open," the Canadian court wrote.

At the end of June, the US Supreme Court struck down a Texas anti-sodomy law in a 6-3 decision, ruling that gays have the constitutional right to make fundamental choices about "intimate conduct."

The Supreme Court decision was sweeping in its endorsement of gay rights. Justice Antonin Scalia, one of the dissenters, argued that the majority decision would likely pave the way for gay marriage.

Today's decision capped months of anticipation that recalled a similar drama in Vermont, the first state in the country to establish civil unions for gay couples. Three gay couples sued that state in the late 1990s after being denied the right to marry.

Five days before Christmas in 1999, the Vermont Supreme Court ruled that the Vermont constitution mandated equal treatment of heterosexual and homosexual couples. The court left it to the legislature to decide whether to allow gay marriage or to create a parallel institution for gay couples.

Then-Gov. Howard Dean immediately announced he would support the latter, declaring himself uncomfortable with explicit gay marriage. The debate split the state's normally liberal electorate in a bitter debate, but the legistlature acted quickly. Four months after the court ruled, Dean signed civil unions legislation in a private ceremony that did not defuse opponents' anger.

That fall, campaigning for re-election in a state famed for its small-town civility, the governor donned a bullet-proof vest. Dean, who had won four previous landslides, barely got 50 percent of the vote, the level needed under Vermont law to avoid a run-off in the legislature.

Effects from Vermont's law rippled around the country. Gay couples forbidden to codify their partnerships in any other state flocked to the Green Mountains for civil unions. The debate has prompted some American newspapers to include civil union announcements in their wedding pages. And Dean touts his signing the law as part of his presidential campaign platform.

Kathleen Burge can be reached at kburge@globe.com

Partners Gina Smith (left) and Heidi Norton of Northampton embrace during a news conference on the court's decision Tuesday. Partners Gina Smith (left) and Heidi Norton of Northampton embrace during a news conference on the court's decision Tuesday. (AP Photo)
Jarrett Barrios, an openly gay state senator from Cambridge, talks to reporters about the decision before entering the Senate chamber. Jarrett Barrios, an openly gay state senator from Cambridge, talks to reporters about the decision before entering the Senate chamber. (Globe Staff Photo / John Tlumacki)
Text of the decision
Gay population
The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.
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