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Gay marriage: Will the SJC follow the law or cave in to politics?
Seven same-sex couples have sued for the right to marry in Massachusetts. Their case is now before the state’s highest court, and the outcome could transform family law.
BY KRISTEN LOMBARDI

FOR MONTHS NOW, gay-rights advocates — along with lawyers, judges, and general court enthusiasts — have kept a close eye on the Massachusetts Supreme Judicial Court. The state’s highest judicial body — the oldest state supreme court in the nation — is currently weighing a landmark lawsuit with the potential to reshape family law as we know it.

At first blush, the case, known as Goodridge et al. v. Department of Public Health, seems simple enough. It involves seven same-sex couples who are petitioning the Supreme Judicial Court (SJC) for the right to wed legally. Their side has the Massachusetts Constitution behind it, specifically its guarantees of equality and liberty. And the state’s marriage statute currently lists only two requirements to wed: that the pair is not closely related and that neither party is already married or underage. There’s no mention of gender, nor any stipulation that couples must consist of a man and a woman. On the other side, however, the centuries-old tradition of limiting marriage to heterosexual couples bolsters the arguments of those opposed to permitting same-sex couples to wed legally.

The court’s decision could make the Bay State the first in the nation to sanction same-sex marriage. But the impact of such a decision would ripple far beyond Massachusetts. What would happen to out-of-state couples who marry in Massachusetts and expect their home states to honor their marital status under the US Constitution’s Full Faith and Credit Clause, which provides that " [f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state " — a clause now understood to ensure that heterosexuals who legally wed outside their resident states do not have to remarry at home to make it legal locally? Legally married gay and lesbian couples in this state would also be able to file joint income-tax returns and apply for federal marital benefits, such as Social Security survivor benefits. In 1996, the federal Office of Management and Budget identified more than 1400 discrete benefits accorded married couples; an SJC ruling that opens up the institution of marriage to same-sex couples in Massachusetts could grant access to some of these benefits, which are a mix of federal and private provisions ranging from hospital-visitation rights to pension benefits and inheritance rights. It's true that the 1996 federal Defense of Marriage Act, which defines marriage as between a man and a woman, currently prevents access to federal benefits in the event that a state expands marriage to same-sex couples. Still, the children of these couples would be legally recognized as " marital children " — setting up immediate relationships to both parents that are currently available to gay couples only through " second-parent " adoption. And gay couples who split up would be legally recognized as " divorced " — giving them certain rights regarding everything from property division to alimony and child custody. As Joyce Kauffman, a Cambridge family-law attorney who co-chairs the Massachusetts Gay and Lesbian Bar Association, observes, " There are lesbian and gay families in the world, yet no way for the law to support them. A lot is at stake here. "

The Goodridge case ranks among the most politically charged ever to come before the SJC. It has captured attention well beyond the state’s borders, in such far-flung places as Australia and London and here at home from Washington, DC, to California. The 26 friend-of-the-court (amicus curiae) briefs, filed by organizations on both sides of the debate, offer one gauge of the interest excited by this case. Groups opposing same-sex marriage have joined in 15 such briefs. The attorneys general of Utah, Nebraska, and South Dakota, for instance, warn that Massachusetts would become a " source of profound friction " with other states if it were to redefine the traditional institution of marriage. And Catholic, Protestant, and Orthodox Jewish groups contend that gay marriage is an immoral affront to nature, while conservative groups argue that the seven couples who filed the suit are trying to obtain " by judicial fiat " what they cannot obtain by legislative statute.

Meanwhile, supporters of gay marriage have authored 11 amicus briefs. These supporters include nine top scholars in Massachusetts constitutional law from Harvard and Rutgers, among other universities; local and state bar associations; and 16 international human-rights organizations. In their amicus briefs, mental-health and child-welfare groups have laid out the scientific consensus that gay men and lesbians are as good at parenting as heterosexuals. And the Unitarian Universalist Association and the Jewish Reconstructionist Federation, along with clergy from 13 other denominations, have filed amicus briefs endorsing the right of gay people to marry under civil laws.

The spotlight on the case intensified last month, when the SJC held its only public hearing on the debate March 4. Those who attended the event recall that hundreds of people turned out to listen to oral arguments. As the seven justices queried attorneys, spectators packed the courtroom. Those without a seat spilled into the hall. Everyone, regardless of what he or she actually wants the SJC to do, is anxious to know what the SJC is going to do. Early signs point toward extending marriage rights to same-sex couples. Based on the court’s own precedents, in fact, the seven couples have an excellent shot at prevailing. In the words of one long-time court observer, " There is no good reason for denying same-sex marriage under the state’s constitution, other than animus against gays and lesbians. " But there’s more at play here than just the facts of the matter. There’s also politics. House Speaker Tom Finneran, who has wielded the state budget as a weapon against the judiciary in the recent past, has vowed to defeat any attempt to legalize same-sex marriage with a constitutional amendment specifically outlawing such unions. " The big dilemma, " explains Gary Todd, a Boston attorney who specializes in family law and who has argued before the SJC in the past, " is whether the SJC is going to recognize same-sex marriage. Or will it defer to the legislature to create a statute? "

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Issue Date: April 17 - 24, 2003
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