SJC affirms gay marriage

The Supreme Judicial Court yesterday put Massachusetts on course to become the first state in the nation to allow gays to marry, deciding that a proposed civil unions bill for gay couples would establish "an unconstitutional, inferior, and discriminatory status for same-sex couples."

Saying that "separate is seldom, if ever, equal," four of the high court's seven justices said that the civil-unions bill produced by the state Senate would not pass muster under the court's Nov. 18 gay marriage ruling, which found the state's prohibition of gay marriage unconstitutional.

"For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain," said the court's advisory opinion. "The [civil unions] bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits."

Dissenting justices said the difference between civil marriages and civil unions was a largely semantic one, saying, "[W]e have a pitched battle over who gets to use the `m' word."

"Both sides appear to have ignored the fundamental import of the proposed legislation, namely, that same-sex couples who are civilly `united' will have literally every single right, privilege, benefit, and obligation of every sort that our State law confers on opposite-sex couples who are civilly `married,' " Justice Martha B. Sosman wrote. "Under this proposed bill, there are no substantive differences left to dispute -- there is only, on both sides, a squabble over the name to be used."

Sosman was joined in dissent by Justices Francis X. Spina and Robert Cordy. Chief Justice Margaret H. Marshall and Justices John M. Greaney, Roderick L. Ireland, and Judith A. Cowin made up the majority.

With the civil unions bill tossed out, opponents of gay marriage, including Governor Mitt Romney, stepped up their calls for a constitutional amendment to define marriage solely as the union of a man and a woman. The Legislature is set to take up a proposed constitutional amendment Wednesday, but Senate President Robert E. Travaglini said he is not sure whether debate will take place as scheduled.

"I want to have an opportunity to talk to my membership, have everybody stay in an objective and calm state, as we plan and define what's the appropriate way to proceed," Travaglini said in an interview. "There's a lot of anxiety out there, obviously, surrounding the issue, that I don't want to cloud or distort the discussion."

Both supporters and opponents of gay marriage said that yesterday's opinion left little doubt that the court's Nov. 18 ruling backed full-fledged marital rights for same sex couples.

"There is absolutely nothing" that can be done to stop gay marriages from taking place in Massachusetts, said Harvard constitutional law scholar Laurence Tribe. "It is as inevitable as the sunrise. There is, however, always the possibility of a sunset, if the constitution of the state is amended."

Attorney General Thomas F. Reilly said: "The SJC has clearly spoken. Same sex couples have the constitutional right to marry under Massachusetts law."

It appears likely that Massachusetts will join the Canadian provinces of Ontario and British Columbia, Belgium, and the Netherlands, as the only governments that offer full civil marriage rights for same-sex couples. The SJC's ruling is set to go into effect May 17. Even if lawmakers and the state's voters approve a constitutional amendment to ban gay marriage, the earliest it would go into effect until 2006. What's not clear is what would happen to those couples who were married in Massachusetts before the amendment passed.Some top politicians -- including Reilly, Travaglini, and US Senator John F. Kerry -- had indicated their support for a civil unions law for gay couples, similar to that in Vermont. In December, the state Senate produced a bill that would establish civil unions and provide many of the benefits extended to married couples, but that defined marriage as a heterosexual institution. The Senate then asked the SJC if the civil unions bill would suffice.Lawmakers and lobbyists have also been preparing for the constitutional vote on Wednesday. The Catholic Church, national conservative groups, and local advocates have been focusing on the upcoming debate, and yesterday they called for the constitutional convention to take place on schedule, especially because two previous debates were scuttled. "We welcome a full and fair hearing on the definition of marriage on Feb. 11," said Ronald A. Crews, spokesman for the Coalition for Marriage, an umbrella group of conservative organizations seeking the proposed constitutional amendment.

Thirty-seven states have already passed laws or constitutional amendments banning gay nuptials, and Ohio is expected to join them within the week. Several conservative groups are already urging Congress and President Bush to pass a federal constitutional amendment that would define marriage as a heterosexual institution, thus stripping states like Massachusetts of the right to define marriage within their own borders. Bush spoke favorably of the amendment in his recent State of the Union speech, but stopped short of endorsing the measure.

At a White House press briefing yesterday, Bush spokesman Scott McClellan called the SJC ruling "deeply troubling" and said the administration would review it, but again refrained from a full endorsement of a federal constitutional amendment.

"Activist judges continue to seek to redefine marriage by court order without regard for the will of the people," McClellan said.

Kerry, now leading in the race for the Democratic presidential nomination, said yesterday: "I believe the right answer is civil unions. I oppose gay marriage and disagree with the Massachusetts court's decision."

Those on both sides of the debate said the latest SJC ruling will push the national debate to the forefront.

"I think it's the beginning of the national phase," said Matt Daniels, president of the Alliance for Marriage, a Washington-based group pushing for the federal amendment. "The bottom line is, marriage in America is going to be defined in constitutional terms. The only question remaining is whether that will happen through the courts by unelected judges or through the amendment process set forth in the Constitution by the American people."

Mary Bonauto, the attorney who represented the seven same-sex couples who filed the case that led to the SJC's initial ruling, said at a press conference yesterday that the court's latest decision would have a "catalytic and favorable effect" on what happens in other states and at the federal level. But she suggested that making same-sex marriage legal across the country would be a "long-term proposition."

Some legal specialists have predicted that a Massachusetts gay marriage provision would eventually clash with the federal Defense of Marriage Act, signed into law by President Clinton. That law allows states to define marriage for themselves.

Former US Representative Bob Barr, the Georgia Republican who sponsored the Defense of Marriage Act, said in an interview yesterday he sees no need for a federal constitutional amendment or for states with existing gay marriage bans to worry that their own laws would soon be overturned. But Tribe said he believes the SJC's refusal to accept civil unions sets up a direct test of the Defense of Marriage Act, as gay couples who get married in Massachusetts attempt to exert their newfound rights elsewhere.Romney, in a statement yesterday, said voters should be given the chance to vote on a state constitutional amendment establishing marriage as the union of a man and a woman. "We've heard from the court, but not from the people," he said. To amend the state constitution, a majority of lawmakers in both houses, meeting in a constitutional convention, must approve the amendment in two consecutive legislative sessions, followed by a majority of the state's voters in a subsequent election. That means the earliest the proposed amendment could go before voters would be 2006.