Joining Belgium, the Netherlands, and the Canadian provinces of Quebec, Ontario, and British Columbia, on May 17, Massachusetts became one of a very few places where same-sex couples can legally marry. Although same-sex couples have recently been issued marriage licenses elsewhere in the U.S., those licenses have not been state-sanctioned and are currently the focus of legal battles.¹ Marriages in Massachusetts will likely also be subject to court challenges and attempts at legislative override, but same-sex couples and their supporters are prepared to defend their right to marry.

In November 2003, the Massachusetts Supreme Judicial Court decided Goodridge v. Department of Public Health in favor of the plaintiffs, same-sex couples who had been denied marriage licenses. In her opinion for the court, Chief Justice Margaret Marshall wrote that "the right to marry means little if it does not include the right to marry the person of one’s choice." She concluded that "the benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death," and that "the marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."²

The Massachusetts Supreme Judicial Court gave the legislature 180 days to bring state laws into accord with the ruling. These 180 days expired on May 17 and same-sex couples across the state exercised their right to marry.

In the state legislature, those opposed to same-sex marriage instigated the process to amend the state constitution to define "marriage" as a "union between one man and one woman" as well as restrict same-sex couples to forming "civil unions."³ Although some argue that "civil unions" are an adequate substitute for marriage, others argue civil unions are inherently unequal.

Massachusetts’ constitutional amendment passed the legislature this spring and will be revisited by policymakers in the next session before being put to a state-wide public vote in 2006.

According to the National Gay and Lesbian Task Force (NGLTF), the federal government alone accords 1,138 benefits and responsibilities based on marital status. These include Social Security survivor and spousal benefits, the ability to sponsor one’s partner for immigration purposes, eligibility for Family and Medical Leave, and tax treatment of pension and retirement plans. NGLTF states that these are benefits and responsibilities that will be completely denied to same-sex couples if governments recognize civil unions but not marriage.⁴

Governor Mitt Romney (R) has attempted to stop out-of-state same-sex couples from flocking to Massachusetts for marriage certificates by reviving a 1913 law originally adopted to impede interracial marriages. The law prohibits Massachusetts officials from issuing certificates for marriages that would be illegal in a person’s home state. The governor has explicitly warned clerks they could face fines or jail time if they violate this law. Nevertheless, officials in at least four communities-Provincetown, Somerville, Worcester, and Springfield-have decided to issue marriage licenses to out-of-state couples.

Surrounding states are also addressing the issue. Connecticut’s attorney general, Richard Blumenthal, issued a two-part opinion that said state law forbids same-sex couples from marrying in Connecticut, but it stopped short of saying whether residents who wed elsewhere would be denied marital status at home. Courts in Rhode Island have not yet decided whether same-sex couples can marry, according to state attorney general Patrick C. Lynch. Lynch said that "validly performed" marriages in other states would be recognized unless they contradicted public policy, noting that Rhode Island law appeared to void mainly marriages involving bigamy, incest, or mental incompetence. New York’s attorney general, Eliot Spitzer, issued a similar opinion.⁵

Despite legal uncertainties, same-sex couples who reside in other states are traveling to Massachusetts to get married. In Provincetown, Christopher McCary and Michael John from Alabama were the first in line to file for a marriage certificate. According to an interview with the Cape Cod Times, Sullivan said, "Our marriage license may not be worth anything in Alabama today, but it will someday." McCary, an attorney, argued Alabama recognizes marriages in other states and that this one should have the same significance.⁶ Many couples expect to challenge their home states to recognize the legality of their marriages.

Under current federal law, other states are not required to give full marriage benefits to resident same-sex couples who married in Massachusetts. The Defense of Marriage Act (DOMA), signed by President Clinton in 1996, denies federal recognition of same-sex marriages and allows states to refuse to recognize same-sex marriages licensed in other states.⁷ Many advocates working on same-sex marriage rights believe substantial challenges to DOMA will likely be on the horizon.

Reacting to the recent action towards equal marriage rights, President Bush said, "There is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city."⁸ In order to secure a one-man-and-one-woman definition of marriage nationwide, the President called for a constitutional amendment.

Many advocates for same-sex marriage rights believe this is a politically motivated endeavor with little hope of success. Amending the Constitution is a long and arduous process. The amendment must pass by a two-thirds majority in both the House and the Senate and then proceed to the states where three-fourths of the state legislatures must ratify it before it becomes part of the Constitution. Typically, Congress will place a seven year time limit for amendments to be ratified.

"This is an attempt to change the Constitution from a vessel for freedom to a tool of discrimination," said Human Rights Campaign President Cheryl Jacques. She added, "Fair-minded Americans oppose changing the Constitution to discriminate. President Bush wants to change the Constitution because he can’t change his falling poll numbers."⁹

More information at the National Gay and Lesbian Task Force.

More information at Mass Equality.

References

1. P. Belluck, "Same-Sex Couples Wed Across Massachusetts," New York Times, May 18, 2004. Available on-line.
2. GOODRIDGE, et al. v. DEPARTMENT OF PUBLIC HEALTH, et al., 440 Mass. 309, SJC-08860, Suffolk. March 4, 2003. – November 18, 2003. Available on-line.
3. Mass Equality, "Current amendment to be considered in 2005: The final proposed language of the amendment." Accessed on-line on June 9, 2004.
4. "How unequal are civil unions? Unequal in 1,138 ways and counting," National Gay and Lesbian Task Force. Accessed on-line June 9, 2004.
5. P. Belluck, "Same-Sex Couples Wed Across Massachusetts," New York Times, May 18, 2004. Available on-line.
6. E. C. Dooley, "Crowds line up to make history," Cape Cod Times, May 18, 2004. Available on-line.
7. "Anti gay marriage act clears Congress," CNN, September 10, 1996. Available on-line.
8. President Bush, President Calls for Constitutional Amendment Protecting Marriage, Office of the Press Secretary, February 24, 2004. Available on-line.
9. Changing the Constitution Can’t be Concealed with Tweaks and Maneuvering, (DC: Human Rights Campaign, March 22, 2004). Available on-line.