Goodridge decision 'fascinating' say MBA officers

Issue December 2003 By Krista Zanin

Hailing the Supreme Judicial Court's decision declaring unconstitutional the state's ban on same-sex marriage, MBA leaders said they believe the landmark decision leaves little to no room for opponents to legislatively prevent such unions.

The 4-3 decision written by SJC Chief Justice Margaret H. Marshall came down Nov. 18 - nearly one year after the MBA submitted an amicus curiae brief in Goodridge v. Department of Public Health. The brief supported the position that excluding same-sex couples from the recognition of marriage violates equal protection under the Massachusetts Constitution, constitutes discrimination based upon sex and constitutes discrimination upon sexual orientation.

"The Massachusetts Bar Association House of Delegates has taken the position that the prohibition on same-sex marriage was in violation of equal protection guarantees in the Massachusetts Constitution," said MBA President Richard C. Van Nostrand. "This decision is in line with the position taken in the amicus brief we filed … In that sense the decision is very much a correct one on the basis of those constitutional principles."

The landmark decision declared same-sex couples have a legal right to marry by construing civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others." The court gave the Legislature 180 days to change state law to comply with the decision.

"Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions," Marshall wrote.

MBA Treasurer Mark Mason, chair of the association's Same Gender Marriage Task Force, praised the decision.

"The Goodridge decision is a landmark decision recognizing that all individuals are entitled to the protections, benefits and obligations of civil marriage. It is a decision with far-reaching consequences, which will not be fully felt for perhaps years to come.

"The majority decision represents a level of jurisprudence that our nation has not seen in decades and ratifies our opinion that our Supreme Judicial Court is among the finest in the country."

Van Nostrand praised the thoroughness of the decision in recognizing that the right to marry is a fundamental right.

"The majority opinion was worth the wait," Van Nostrand said. "Obviously we were all waiting a long time for this decision, but the product of delay was an extraordinary, articulate, comprehensive legal document. This case will undoubtedly be used by any number of litigants in any number of states as this issue moves outside of Massachusetts."

Mason and Van Nostrand said they believe the Legislature will be limited in its ability to challenge the decision.

Even if legislators attempt to pass a constitutional amendment to prevent same-sex couples from marrying, the earliest the amendment could pass would be in 2006, and would involve passing at two constitutional conventions as well as voter approval at the polls.

"As a result, we will have two and a half years of gay marriage in Massachusetts by the time any such referendum might be brought before the electorate, should the Legislature choose to put such a vote before the population," Mason said. "Many believe that society in Massachusetts will not have been turned on its head and that our two and a half years of experience with gay marriage will prove that, indeed, we have the strongest marriages in the nation."

Mason said any attempt by the Legislature to pass a defense of marriage act would de deemed unconstitutional.

And Mason said he does not believe the decision leaves any room for the Legislature to attempt to create civil unions.

"The issue before the SJC was marriage, not civil unions," Mason said. "The decision underscores the importance of extension of marital rights to same-gender marriage. Any laws providing benefits pursuant to something less than marriage would not comport with the court's decision."

Van Nostrand also said he believes the decision is narrowly tailored toward marriage - and that a possible legislative effort to avoid the decision by enacting a civil union bill would be unsuccessful.

"What the court did in its decision is to suggest that the Legislature remedy the constitutional defect in the marriage license statute by amending the law. It appears the court further recognized the real possibility that the controversial nature of the issue might prevent the Legislature from reaching a conclusion as to such an amendment and put an end date by which the effect of this decision would occur regardless."

As citizens throughout the commonwealth - and the nation - await what, if anything, the Legislature will do, debate will continue to swirl among proponents and opponents of the decision as the approximate May 15 deadline to change the statute approaches.

"Many criticize the majority decision for exercising what they deem to be judicial activism," Mason said. "To the contrary, the Goodridge decision represents the type of decision which is best left to the debate, deliberation and legal analysis of our appellate courts. On the other hand, the debate which we might envision in the Legislature will undoubtedly involve reflexive discrimination as well as arguments which, although born of emotional sentiment, are not helpful in analyzing the merits of same-gender marriage."

Van Nostrand called the SJC justices bold and courageous in their decision.

"It's just such a fascinating decision and the courage it must have taken … the majority certainly knew this decision would be met with extraordinarily strong contrary opinions. In my opinion, this decision is likely to be the legacy of Chief Justice Marshall for decades, if not centuries, to come."

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