Justices' opinions reveal deep division

With emphatic, direct, and at times sharp language, the Supreme Judicial Court's advisory opinion yesterday ended debate about the meaning of its November ruling: Only full marriage rights for gay and lesbian couples can meet the state's constitutional guarantee of liberty and equality, the court said.

But the 4-3 ruling also revealed a court deeply divided, included unusually pointed barbs between the justices, and reflected some frustration among the justices who disagreed.

As the four members of the majority -- Chief Justice Margaret H. Marshall and Justices John M. Greaney, Roderick L. Ireland, and Judith A. Cowin -- rebutted Justice Martha B. Sosman's argument that the debate over civil unions versus marriage is nothing more than a dispute about the name of the institution, their frustration is clear. Sosman "so clearly misses the point that further discussion appears to be useless," opined the majority.

Sosman called the majority justices "activist" in their support for same-sex marriage and decried the "dogmatic tenor" of yesterday's opinion, which she argued "merely repeats the impassioned rhetoric" of friend-of-the-court briefs supporting gay marriage. In her dissenting opinion, Sosman called the debate "a squabble over the name to be used" and not an issue of constitutional rights.

"It highlights the divisiveness on the Supreme Judicial Court," said Peter Zupcofska, a lawyer who wrote an amicus brief for the Human Rights Campaign and other groups supporting same-sex marriage.

The tone of yesterday's opinion also reflects a shift from the court's landmark ruling in November, which was respectful and almost deferential to legislators. In forthright language, the four justices yesterday repeatedly stressed that nothing short of marriage for gays would meet the state's constitutional guarantee of liberty and equality.

After describing the question the court received from the state Senate, which asked whether a civil unions bill would meet constitutional muster, the majority offered a point-by-point rejection of civil unions and ended its 12-page opinion with a terse statement: "The answer to the question is `No.' "

While the November decision went to lengths to acknowledge the important role the Legislature has in "deciding social and policy issues" and included language saying that the ruling approving gay marriage would be delayed for 180 days "to permit the Legislature to take such action as it may deem appropriate," the ruling yesterday was more forceful. Lawmakers have no immediate option other than to adjust existing laws to reflect the SJC decision, the court said.

"The purpose of the [180-day] stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the decision," the majority wrote.

And the justices called the Senate civil-unions bill "an attempt to circumvent the court's decision."

"Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status," the court wrote. "The history of our nation has demonstrated that separate is seldom, if ever, equal."

And unlike the November decision, which copiously cited legal cases in Massachusetts and elsewhere in the country to buttress its argument, yesterday's opinion read more like a guide to carrying out the earlier ruling.

Richard C. Van Nostrand -- president of the Massachusetts Bar Association, which urged the court to uphold gay marriage -- said: "I think what the SJC was saying this time around was, we gave you the legal analysis and the legal opinion last time, and we meant what we said. We have not rethought our position because there has been a public outcry since the last decision."

The justices' approach in the November decision may have been a deliberate attempt to avoid alienating the public and the Legislature, as the court introduced a momentous change in state marriage law, while using gentle, persuasive, and at times ambiguous language.

Or, one legal analyst suggested, the earlier tone may have reflected the effort of justices who supported marriage to build a majority for their side. The November ruling was authored by Marshall.

"My own personal opinion was there was a bit of fudging in that earlier decision, because one or more of the justices in the majority had somewhat cold feet," said Paul J. Martinek, a lawyer and editor of Lawyers Weekly USA. "Perhaps they were testing the waters a bit, seeing how the public responded to it."

When the SJC ruled in November that seven same-sex couples who sued the state had the right to marry, many supporters argued that the decision's strong language about the importance of marriage left no doubt about the justices' intent. But others, especially opponents of gay marriage, puzzled over the wording of the opinion and suggested that it contained wiggle room for establishing civil unions.

But yesterday, both supporters and opponents had the same interpretation of the court's latest opinion: Nothing short of marriage will satisfy the SJC majority.

Dwight G. Duncan, a lawyer for the Massachusetts Family Institute and other groups opposed to same-sex marriage, said the language was excessively pointed and excessively dismissive of Sosman's dissent.

"From a political point of view, they've adopted a total no-compromise position," said Duncan.

In dissent, Sosman argued that civil unions are constitutional because gay and lesbian couples who unite in civil unions will receive all the tangible benefits of marriage. She invoked Shakespeare in a footnote, arguing that history recognizes that names are not important. "That which we call a rose/By any other name would smell as sweet," she wrote, citing the most famous opposite-sex love story, "Romeo and Juliet."

Kathleen Burge can be reached at kburge@globe.com.