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Gay and lesbian ("same-sex") Marriage

 

This article has been written by laurie Israel.  Laurie Israel has a website that can be found online at  http://gaymarriagelawyers.com/Massachusetts.htm

Gay and lesbian ("same-sex") Marriage

Goodridge v. Dept. of Public Health:

Gay and lesbian ("same-sex") Marriage

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Same-sex marriage permitted in Massachusetts
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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 ruling.

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."

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The Court's jurisdiction to determine the present marriage laws unconstitutional
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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.

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Why the Massachusetts Legislature Cannot Reverse Goodridge
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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.

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Why the Massachusetts Legislature cannot enact "Civil Union" laws to comply with the SJC ruling
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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