Massachusetts top court to hear marriage case

By Advocate.com Editors

Originally published on Advocate.com March 05 2003 12:00 AM ET

Massachusetts's highest court was set to consider on Tuesday whether state law gives same-sex couples the right to marry. The supreme judicial court is considering an appeal of a lower court ruling that said the legislature, not the courts, should decide whether same-sex couples should be allowed to marry. A ruling is not expected for several months. The case stems from a lawsuit brought by seven same-sex couples who sought marriage licenses from their town and city clerks in 2001. When they were denied
licenses, they sued the state Department of Public Health. Last May, Suffolk superior court judge Thomas E. Connolly dismissed the lawsuit, ruling that nothing in state law gives same-sex couples a constitutional right to marry. The case will hinge upon the supreme judicial court's interpretation of the state constitution, the world's oldest functioning written constitution.

The attorney general's office, which defends state agencies and laws, argues that marriage laws apply to the union of a man and a woman and that any shift in that public policy must come from the legislature. "What is not at issue is whether permitting same-sex couples to marry would be good public policy," the attorney general's office said in a statement. "The legislature, not the courts, should decide if, when, and how to make such a far-reaching change in Massachusetts law."

Gay and Lesbian Advocates and Defenders says prohibiting same-sex marriage violates the state constitution's equality provisions. "From our perspective, the exclusion of same-sex couples should fail because it violates the basic promises of liberty and equality of all people under our constitution," said Mary Bonauto of GLAD. She said the case would not be appealed to the U.S. Supreme Court if her clients should lose, because her legal argument is based on the state constitution.

The court has 26 advisory briefs on the issue from advocates for and against gay marriage, religious groups, other states, and law professors from as far away as Australia. Proponents say same-sex couples and their children deserve the same legal protections that are available to traditional married couples and their families. Opponents argue that the state should not tamper with the traditional one-man, one-woman definition of marriage.

"Marriage, like all things, must have a definition," a coalition of religious groups, including the Massachusetts Catholic Conference and the Greek Orthodox Diocese of Boston and New England, said in a brief. "It cannot mean everything, or it will ultimately mean nothing. Throughout all history, marriage has been heterosexual."

A brief from the attorneys general of Utah, Nebraska, and South Dakota asks that Massachusetts should not become "the source of profound friction among states and the federal government by radically rewriting marriage and exporting the controversy to other states. "Massachusetts is a good and responsible participant in the national community of states," wrote Brent A. Bennett, Utah's assistant attorney general. "To legalize same-sex marriage would mar that record and wreak havoc."

The legislature may deal with the issue regardless of what the high court decides. Several lawmakers have proposed bills, similar to a law passed in Vermont in 2000, that grant gay and lesbian couples virtually all the rights and responsibilities of marriage that are granted by state law. Last year a proposed anti-gay marriage amendment to the Massachusetts constitution died when the state constitutional convention adjourned without taking up any of the proposed amendments.