Originally published on Advocate.com November 21 2003 12:00 AM ET
Massachusetts governor Mitt Romney and some key state lawmakers are hoping that ambiguous wording in the Supreme Judicial Court's ruling endorsing gay marriage will allow the state to get away with adopting civil unions instead. Gay rights advocates and legal scholars argue that the court decision
instructs the state to recognize nothing short of marriage for gays and lesbians. But Romney said Wednesday that he believes the state could adopt civil unions, similar to those allowed in Vermont, then continue working toward a constitutional amendment to ban same-sex marriages.
"I believe their decision indicates that a provision which provides that benefits, obligations, rights, and responsibilities which are consistent with marriage but perhaps could be called by a different name would be in conformity with their decision," Romney said. "Under that opinion, I believe a civil union-type provision would be sufficient."
At the heart of the confusion over Tuesday's 4-3 ruling is the 180-day stay contained within the court decision. Was it designed simply to give the legislature time to comply, or, as some have speculated, did it give legislators some leeway to come up with a solution short of gay marriage?
"I think that there is deliberate ambiguity left in at the end of the opinion that is meant to float indirectly the idea of civil unions," said Paul Martinek, editor of Lawyers Weekly USA. "I think, clearly the SJC could have simply closed the door on any option other than gay marriage if they had wanted to. I think they needed to get a fourth vote." If the legislature does nothing by the end of the 180-day period, Massachusetts will become the first state in the country to issue marriage licenses to gay couples.
By treading into uncharted territory, the state's highest court raised a myriad of legal, ethical, and logistical questions: If voters amend the state's constitution--which could happen no earlier than 2006--and ban gay marriage, what would happen to those couples who married before then? And if one state allows same-sex marriages, must other states recognize them?
Experts say it could take years for lawsuits challenging gay marriage to wind their way through state and federal courts before ending up at the U.S. Supreme Court. Some of the litigation may center on the "full faith and credit" clause of the U.S. Constitution, which says states must accept other states' judicial proceedings.
"People in very short order will move back to Alabama and Tennessee and demand that marriages be recognized," said Gary Bauer, president of American Values, a conservative group. "At that point you have got a constitutional crisis."
Experts, however, generally believe the "full faith and credit" argument favors opponents of gay marriage. What little interpretation the U.S. Supreme Court has provided thus far indicates that the clause applies to legal judgments in "adversarial proceedings" such as lawsuits, not marriages. Strangely, since divorce is an adversarial proceeding, the divorce of a gay couple from Massachusetts could be recognized in other states more easily than their marriage.
The Massachusetts decision also could open the door for challenges to "defense of marriage acts" passed by Congress and 37 states, on the grounds that laws against the recognition of gay marriages violate the rights of gays to equal protection under the Constitution. That was the basis for the U.S. Supreme Court's recent decision striking down Texas's sodomy law.
"The meta thing hanging over all of this is the general constitutional question of whether or not states can discriminate against same-sex couples," said William Eskridge, a law professor at Yale University. "In the near term it's a state constitutional question. In the longer term, it will loom as a U.S.
At least one Massachusetts community wasn't going to wait for the legislature to act. The city council in Cambridge, home to Harvard University and known for its liberal politics, planned to consider allowing its clerk to begin issuing marriage licenses to same-sex couples as soon as next week. "It's very clear that the court has found that there is a fundamental right to marry under the Massachusetts constitution," said city councilor Brian Murphy. "Given that, how can you deny someone the right to marry?"