This article has been written
by laurie Israel. Laurie Israel has a website that can be found online
and lesbian ("same-sex") Marriage
Goodridge v. Dept. of Public Health:
Gay and lesbian
Same-sex marriage permitted in Massachusetts
On Tuesday, November 18, 2003, the
Massachusetts Supreme Judicial Court (SJC) in Goodridge v. Dept. of Public
Health, ruled that the Massachusetts must permit same-sex couples to marry
in Massachusetts on the same basis as heterosexual couples.
This ruling has ramification in many areas
— estate planning, real estate, inheritance rights, elder law, child-raising,
divorce, all of which are very important, which will inevitably flow from this
The Court called civil marriage a
"deeply personal" commitment to another human being and a celebration
of the ideals of mutuality, companionship, intimacy, fidelity, and family. Its
hallmark, according to the court, is the "voluntary union of two persons as
spouses, to the exclusion of all others".
The SJC stated that the marriage ban for
gays and lesbians "works a deep and scarring hardship on a very real
segment of the community" and that the marriage restriction is rooted in
persistent prejudice again homosexuals. The court concluded that the same-sex
marriage ban "violates the basic premises of individual liberty and
equality protected by the Massachusetts Constitution."
The Court's jurisdiction to determine the present marriage laws unconstitutional
Much of the Goodridge decision used
federal Supreme Court cases as precedents. However, the Massachusetts SJC is not
restricted by federal law; rather, federal law may establish a minimum level of
rights. These can be exceeded (but not diminished) by state law. Thus, even if
there were a federal Supreme Court decision stating that there was no federal
constitutional right to same-sex marriage (which there is not), the highest
court in any state could find an additional right to include gays in
"marriage" by construing its own constitution. Because in Goodridge
the SJC is construing the Massachusetts (not the federal) Constitution, the Goodridge
decision in not appealable by any court, including the U.S. Supreme Court.
Why the Massachusetts Legislature Cannot Reverse Goodridge
One of the hallmarks of our legal system the
doctrine of "separation of powers". Under this doctrine, it is the
courts' domain to interpret laws. Courts make decisions about whether or not a
particular law is "constitutional" (i.e., whether it comports with the
jurisdiction's constitution). The highest court of a state also determines how
to "construe" or interpret laws passed by a legislature. The Supreme
Judicial Court is Massachusetts' highest court — therefore its opinions are
binding on the Massachusetts legislature and the legislature cannot override it
by passing any contrary laws.
If the legislature were to pass into law a
"defense of marriage" act that forbade same-sex marriage, the SJC
would deem this law unconstitutional for the same reason that the SJC has just
declared unconstitutional the present Massachusetts laws excluding
individuals in committed same-sex relationships from the marriage law —
because it is unconstitutional.
Why the Massachusetts Legislature cannot enact "Civil Union" laws to
comply with the SJC ruling
Enforcement of the SJC's Goodridge
decision has been stayed (held in abeyance) until May 16, 2004, to permit the
legislature to take such action "as it may deem appropriate" in light
of the SJC opinion.
In Goodridge, the SJC provided the
legislature with the new definition of "civil marriage" as "the
voluntary union of two persons as spouses, to the exclusion of all others. The
result of this decision is that there is only one kind of marriage for everyone
in the Commonwealth . It is called "civil marriage" and is subject to
the same laws for everyone — whether straight or gay. This way the
Commonwealth will avoid making same-sex couples who wish to marry into second
class citizens, which the SJC said is not permissible under the Massachusetts
constitution. Even if our legislature had previously passed "civil
union" legislation, this legislation would have now been found to be
unconstitutional under the Goodridge ruling.
If the Massachusetts legislature makes no
changes in the multitude of marriage laws (and other laws dealing with
"husbands" and "wives") prior to May 16, 2004, all these
laws will be construed by the Goodridge decision to mean "spouse
and spouse". Same-sex couples will be able to marry and will have the
identical protections, rights and responsibilities associated with marriage as
straight people. If the Massachusetts legislature decides to enact any changes
in the laws pertaining to marriage, the changes required by the Goodridge
ruling are purely ministerial — to change all references to
"marriage" to "civil marriage" and all references to
"husbands" and "wives" to references to "spouse"
and "spouse". Under this unappealable ruling, the legislature has no
discretion to do anything else.
Because there are over two hundred laws
dealing with "marriage" and "husbands and wives", my sense
is that the legislature will leave the present wording of the laws alone (for
now) and that Massachusetts residents will follow the new law by reconstruing
the words of the present statutes.
For more information, read the SJC decision Goodridge
v. Dept. of Public Health.
This article has been written by laurie
Israel. Laurie Israel has a website that can be found online at http://gaymarriagelawyers.com/Massachusetts.htm