Massachusetts court supports equal marriage
But remedy is delayed 180 days and in question

"This has been a ticking time bomb in America for the last several months that has exploded in Massachusetts. Not only is this decision a Massachusetts decision, but this will affect the New Hampshire primary and the election itself."
Ray Flynn, former Boston mayor and ambassador to the Vatican, reflecting on Presidential politics, Associated Press, Nov. 18, 2003

Today the Massachusetts Supreme Judicial Court issued their long-awaited judgment in the Goodridge vs. Department of Public Health case, declaring that same-sex couples have the right to civil marriage. We are thrilled at the prospect of adding the United States to the growing list of countries that respect the right of equal marriage for same-sex couples. Congratulations to our friends in Massachusetts, and through-out the U.S.!

"The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry," today's judgment stated. "We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

"We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

As we had hoped, our Ontario marriage case contributed to the success in Massachusetts, particularly in demonstrating the empowerment of the courts to reformulate law. The Massachusetts Supreme Judicial Court noted:

"We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada's Federal Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v. Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at, quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite- sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity). We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."

However, unlike our case in Ontario, the court, in a 4-3 ruling, did not give immediate remedy to the couples seeking access to marriage. Instead, the court ordered the Massachusetts Legislature to adjust the state laws, to be consistent with the court's decision, within 180 days.

A group of lawmakers are already working to develop civil union legislation, similar to the law passed in Vermont, but this would, be inconsistent with the court's decision to enable civil marriage. State legislatures are likely to call for a DOMA or amendment to the state's constitution to enforce discrimination. Further, the U.S. House is considering a constitutional ban on same-sex marriage, with the support of President Bush, in order to maintain discrimination against gays and lesbians.

Fasten your seatbelt, but enjoy this important U.S. victory for equality!

Read the Goodridge vs. Department of Public Health decision