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SJC taking lead on social issues

Gay marriage ruling latest redefining the family

A decade ago, the Supreme Judicial Court was the second state supreme court to rule that a lesbian could adopt the biological daughter of her partner. Six years later, the justices were among the first to grant visitation rights to a gay woman who had helped raise her former partner's child.

And last year, the SJC became the first state supreme court to rule that children who are conceived with the frozen eggs or sperm of deceased parents can still be considered legal heirs.

To those who have watched the court's forays into the evolving legal landscape of nontraditional families, Tuesday's ruling endorsing same-sex marriage was the end point in a string of cases redefining social institutions.

"I think this court has been in the forefront of the expansion of the definition of family, the protection of children, and the protection of those who are in a family-like setting which may not have yet been formally acknowledged," said Elaine M. Epstein, a Boston lawyer specializing in family law.

Tuesday's 4-3 ruling, which found that banning same-sex marriage violates the Massachusetts Constitution, will undoubtedly shape the legacy of a relatively young court; four of its seven members have been appointed since 1999.

Former governor Paul Cellucci, a Republican, appointed more justices to the SJC -- he named four and promoted Margaret H. Marshall to chief justice -- than any governor in nearly three decades. That imprimatur convinced many legal observers that the court would veer to the right. The gay marriage decision has made some reconsider.

"I had thought that this was a more conservative court than mine -- but it may not be," said former chief justice Herbert Wilkins, who retired in 1999 after 27 years on the court.

Unlike this week, when the SJC essentially changed state marriage law and told the Legislature to make it possible, in other cases in recent years the SJC has deferred to the Legislature. The court refused to tamper with the state law limiting legal damages against charitable organizations to $20,000, or allow the City of Boston to extend health benefits to the unwed partners of city employees. In both cases, the court said that the Legislature was the proper venue to make those changes to state law.

"This court has tended not to engage in judicial lawmaking," said Wendy Baker, a lawyer at the Marriage Law Project at The Catholic University of America, which filed a brief with the SJC opposing same-sex marriage. Baker studied the SJC's track record and concluded that despite the state's liberal political culture, its highest court rarely engaged in judicial activism -- as she believes it did this week.

Some analysts say that for all of the court's groundbreaking on family law, those cases represent the confines of the court's cutting-edge jurisprudence. "This court has been more mainstream than past courts," said Paul Martinek, editor of Lawyers Weekly USA.

Although the SJC has taken positions on criminal defendants' rights that are more liberal than the positions of the US Supreme Court, lawyers say that difference stems from the fact that the state constitution offers greater procedural protections for criminals than the US Constitution.

For example, the SJC has upheld throwing out evidence seized with faulty search warrants in criminal cases, even if law enforcement officers sought the warrants in good faith.

"The Massachusetts Declaration of Rights gives Massachusetts citizens greater protections than the Fourth Amendment of the US Constitution," defense attorney John C. McBride said. In the Commonwealth, it's easier to get convictions overturned because of prosecutors' mistakes or questionable suspect search warrants than in federal court, McBride said.

On issues such as tax law, torts, personal injury damages, and insurance claims -- the types of cases that matter to business -- the SJC's record has been decidedly moderate.

In a study this year, the US Chamber of Commerce ranked Massachusetts 22d in the country -- just about in the middle -- in terms of its legal climate for business, judging it "fair" to business on tort, contract, and class-action litigation.

For instance, the SJC drew harsh words from plaintiffs' lawyers and others when the court refused this year to strike down the state's charitable immunity law, which limits legal damages against nonprofit institutions, including many hospitals, to $20,000.

The court overturned rulings by two judges and the state Appeals Court in the case of Dylan Keene, a teenager left severely brain-damaged by infections that set in when he was a newborn at Brigham and Women's Hospital. A jury had awarded Keene and his family $4.1 million.

The justices acknowledged the decision caused "an usually harsh result," but ruled that even though the hospital lost records essential to the case, it was still protected by the $20,000 cap. Only the Legislature, the justices argued, could change the cap.

Lawyers who have closely watched the SJC said that with an influx of new members and Marshall's leadership, the court has taken a more energetic approach to cases, aggressively questioning attorneys and engaging issues with a fresh eye. The new justices have also been handing down more split decisions and writing more dissents.

While the gay marriage decision has clearly plunged the SJC into uncharted legal territory, in family law and gay rights issues the court had planted itself firmly in a "progressive" camp, along with supreme courts in Vermont, New York, New Jersey, California, and Wisconsin. Gay marriage is such a political lightning rod that much analysis of Tuesday's decision ultimately rests in the eye of the observer.

"This is a controversial decision, there's no getting around that," said Richard L. Neumeier, a Boston attorney who represents many corporate clients before the SJC. "The people who don't like the decision will say this is an activist court reaching out and doing things that shouldn't be done. It really depends on whose ox is being gored whether it's an activist court or not."

Kathleen Burge and Thanassis Cambanis can be reached at kburge@globe.com and tcambanis@globe.com

Ross Ozer and his partner, Scott Gortikov Ross Ozer (left) and his partner, Scott Gortikov, took their 18-month-old son, Sam Ozer-Gortikov, to a celebration of the court ruling at the Old South Meeting House. Gortikov proposed marriage to Ozer after hearing of the decision. (Globe Staff Photo / Matthew J. Lee)
Dan Avila and Maria Parker Dan Avila and Maria Parker of the Mass. Catholic Conference denounced the ruling. (Reuters Photo)
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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