December 4, 2003
Opinion/Editorial (page 9)
Not Elsewhere Classified
A recent ruling by the Supreme Judicial Court of Massachusetts was the cause of much rejoicing. The ruling, of course, stated that it violates the state constitution to deny a couple the right to marry based on the fact that they are both of the same sex. This is a big step forward for gay rights, but it is not perfect. As those who have been following the case closely have noticed, although the plaintiffs met all the requirements an opposite-sex couple must meet, they have still not been granted marriage licenses.
The court gave the legislature 180 days to comply with this ruling. Vermont’s ruling in 1999 was very similar, but the Vermont legislature complied by passing a bill setting up a parallel institution to marriage: civil union. I admit to not having read the entire text of the Massachusetts decision, but the consensus seems to be that such a compromise would not pass muster with the court. The state could of course abolish civil marriage altogether, but that will not happen. As I understand it, the legislature can either allow same-sex marriage or on the 181st day the court will order them to do so.
One key point here is that the court cannot actually make any laws. It can only judge whether pre-existing laws violate the constitution. In 1998, rulings in Hawaii and Alaska were rendered moot by the passage of constitutional amendments limiting the institution of marriage to opposite-sex couples. Massachusetts governor Mitt Romney declared that he will pursue such a measure in this state. However, Massachusetts requires that two consecutive legislatures must approve any potential constitutional amendment before it can be presented to voters for ratification, so the earliest the amendment could be make it to the ballot is November 2006. One imagines that by then it will be obvious that gays have not ruined the institution and such an amendment will seem foolish.
Assuming the Massachusetts legislature allows same-sex couples to participate in civil marriage, such couples will still be only half married, as the federal government does not recognize their marriages as legitimate thanks to the federal Defense of Marriage Act (DOMA). Whether any other state would recognize the marriage were the couples to travel is something which will be tested by time. Article IV, Section 1 of the U.S. Constitution states that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” but the U.S. Supreme Court has given indications that the clause applies to legal judgments in “adversarial proceedings” such as lawsuits, and not such things as a marriage license. Also, 37 states have passed DOMAs of their own, defining marriage as a union of a man and a woman, though these states often recognize civil unions. Until the Supreme Court ruled in Loving v. Virginia in 1967 that members of different races must be allowed to marry, many states refused to recognize any inter-racial marriages that were made in other states, so gay couples will likely face similar obstacles until the U.S. Supreme Court steps in.
The federal level is the area of greatest concern right now. An amendment to the constitution codifying marriage as an institution between a man and a woman is in the works. Both liberals and conservatives have decried this move for a variety of reasons, but the Massachusetts decision gives the reli-
Marriage supports gay rights
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gious right even more impetus to push for the passage of such an amendment.
I have heard some people complaining that marriage has become the gay rights issue in current political campaigns, obscuring more pressing concerns like affordable anti-AIDS drugs and making all schools safe for our children regardless of their real or perceived sexual orientation or gender identity. I agree that these and others are very important issues which need attention. However, I think the religious right is onto something when they get all worked up about marriage. Allowing same-sex marriage says that society en masse validates that kind of love. This kind of symbolism is why people on both sides get so passionate about it.