Ruling extends 20 years of cases

Going far beyond the 1999 Vermont Supreme Court decision -- which held that same-sex couples could not be denied the benefits married couples receive -- the majority on the Massachusetts court ruled that the institution of marriage itself is a fundamental civil right, guaranteed by the state constitution's equal protection and due process clauses.

The SJC "relied on the fundamental right to equal dignity for all citizens," said Harvard Law professor Laurence H. Tribe. "They carefully showed that of all the interests the state has, none are advanced by refusing a marriage license to a couple because they are of the same sex."

The majority in the 4-3 decision based its ruling on the Massachusetts Constitution, which served as a model for the US Constitution and included equal protection guarantees 88 years before the federal Constitution's 14th Amendment was ratified.

But the decision is also heavily influenced by the US Supreme Court's decision in June to strike down laws banning sodomy and outlining a constitutional basis for gay rights, in the case Lawrence v. Texas.

The US Supreme Court decided the sodomy case based on rights to privacy, due process, and equal protection, avoiding the political debate over homosexuality. Quoting that decision, Chief Justice Margaret H. Marshall wrote for the SJC majority that "our obligation is to define the liberty of all, not to mandate our own moral code."

The court, Marshall wrote, wanted to directly resolve whether laws that restrict marriage to heterosexual couples "offend the Constitution's guarantee of equality before the law."

She described marriage as a unique social institution that bestows "enormous" advantages, and legal, financial, and social benefits that are inextricably linked to "the dignity and equality of all individuals."

Using strong language, the court ruled that marriage itself is a fundamental individual civil right that cannot be denied to any resident of the Commonwealth based on sexual orientation or gender.

By contrast, the Vermont Supreme Court in 1999 relied on an equal benefits clause unique to the Vermont Constitution to require that the state Legislature confer the same benefits on same-sex couples as on heterosexual married couples.

The Massachusetts decision leaves far less room for the Legislature to maneuver, said Paul Martinek, an attorney and editor of Lawyers Weekly USA. "The Vermont court gave the Legislature an open invitation to create civil unions as an alternative to out-and-out gay marriage," Martinek said.

Marshall wrote for the majority that "without the right to marry, one is excluded from the full range of human experience and denied full protection of the laws."

While legal scholars supportive of the decision said it was soundly rooted in state constitutional law, others called it a radical power grab by the SJC, and a usurpation of the Legislature's authority.

"It's judicial activism in its most sinister form," said attorney Chester Darling, who filed a brief against same-sex marriage on behalf of the Massachusetts Citizens Alliance.

Marshall compared the SJC's decision to the first court ruling in America that allowed interracial marriage, which was issued by the Supreme Court of California in 1948. The US Supreme Court followed suit in 1967.

"The right to marry means little if it does not include the right to marry the person of one's choice," Marshall wrote. "History must yield to a more fully developed understanding of the invidious quality of the discrimination."

Legal analysts said the decision continues a Massachusetts high court tradition of extending civil liberties further than the US Supreme Court. State constitutions cannot contradict or violate the federal US Constitution, but states are free to offer more protections than federal law. Massachusetts laws, for example, limits drug testing in highly regulated industries more than federal law does, and has gone far beyond federal law by requiring state Medicaid to pay for medically necessary abortions.

"This [decision] is the end result of states' rights," said Lawrence Friedman, a constitutional expert and lecturer at Harvard Law School.

The gay marriage ruling also follows a long trend in Massachusetts of redefining the traditional concept of family. In 1999, the SJC granted visitation rights to lesbian and gay partners who were "de facto" parents. In 1993, the court allowed gay couples to adopt children together. Last year, the SJC upheld grandparent visitation rights.

"It's certainly in keeping with the decisions of this court in terms of expanding the definition of what constitutes a family in Massachusetts," Martinek said. "The court has redefined the legal definition of the family to comport with the practical changes we've seen, to make sure our legal definitions keep up with common practice."

Although Congress passed in 1996 the Defense of Marriage Act, which defines marriage as the union of a man and a woman, the US Constitution does not ban same-sex marriage.

Because the justices based their decision on the state constitution, opponents of same-sex marriage cannot appeal to the US Supreme Court, which has no jurisdiction over how state courts interpret state constitutional questions.

However, if other states refuse to honor same-sex marriages from Massachusetts, it could set the stage for a legal challenge that would force the US Supreme Court to decide whether Massachusetts marriages must be recognized across the nation.

Nationwide, most states have not yet confronted, much less settled, the question of whether same-sex couples can marry. While courts in Alaska in 1998 and Hawaii in 1993 ruled in favor of gay marriage, those decisions were superseded when the states amended their constitutions.

For a new legal framework, Massachusetts justices looked to the Court of Appeal for Ontario, in Canada, which earlier this year refined the province's definition of marriage to apply to same-sex couples.

"We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering the court to refine a common law principle in light of evolving constitutional standards," Marshall wrote. "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."

That simple reformulation of the definition of marriage, according to the court, "leaves intact the Legislature's broad discretion to regulate marriage."

All three dissenting justices argued that only the Legislature has the authority to alter the institution of marriage to include same-sex couples.

"As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society," Justice Martha B. Sosman writes. "As a matter of constitutional jurisprudence, however, the case stands as an aberration."

James Knudsen, an attorney who helped five Massachusetts legislators file a brief against same-sex marriage, said that ultimately the SJC decided, effectively, to make its own law.

"They are making up new rights,"' Knudsen said.

Thanassis Cambanis can be reached at tcambanis@globe.com.