MASS SUPREMES ORDER GAY MARRIAGE

USA Today: Mass court: Same-sex couples entitled to marriage

The Massachusetts high court ruled Wednesday that only full, equal marriage rights for gay couples—rather than civil unions—would be constitutional, erasing any doubts that the nation’s first same-sex marriages could take place in the state beginning in mid-May.
The court issued the opinion in response to a request from the state Senate about whether Vermont-style civil unions, which convey the state benefits of marriage—but not the title—would meet constitutional muster.

“The history of our nation has demonstrated that separate is seldom, if ever, equal,” the four justices who ruled in favor of gay marriage wrote in the advisory opinion. A bill that would allow for civil unions, but falls short of marriage, makes for “unconstitutional, inferior, and discriminatory status for same-sex couples.”

The much-anticipated opinion sets the stage for next Wednesday’s constitutional convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman. Without the opinion, Senate President Robert Travaglini had said the vote would be delayed.

The soonest a constitutional amendment could end up on the ballot would be 2006, meaning that until then, the high court’s decision will be Massachusetts law no matter what is decided at the constitutional convention.

Very interesting. This will certainly bring the issue to a head quickly.

I don’t see why the US Supreme Court would get involved in this, since it’s purely a state issue. The question would seem to be whether the “Defense of Marriage Act,” passed under President Clinton, will stand Constitutional scrutiny or be deemed to violate the Full Faith and Credit Clause. I don’t know the background case law precedent–I’m led to believe the Court has previously allowed states not to recognize marriages perfomed in other states that violate local public policy–but a plain meaning reading would certainly seem to call for the overturning of DOMA. If that happens, then a stark decision will be upon us: we can either get used to the idea of gay marriage very quickly or try to block it with an amendment to the U.S. Constitution.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. McGehee says:

    It could actually push Bush into full support of the marriage amendment that he declined to embrace fully only two weeks ago.

    That would have the effect of defusing any revolt among those religious conservatives who were upset about his lukewarmness on the issue.

    But if Bush continues to hang back, the restiveness among his base would only increase. But it remains to be seen whether that would remain problematic for him all the way until November.

    I can imagine ways this could hurt him in the long run, but only if something unforeseen happens this summer or fall.

  2. Bithead says:
  3. James Joyner says:

    BH,

    I’m not sure what bearing the Ohio situation has on this–although I had forgotten about it.

    This was a ruling by the Massachusetts Supreme Court about the Massachusetts constitution. The question is whether gays wishing to get married but who live in other states won’t start flocking to Massachusetts and then return home and force their states to accept their marriages. Preventing that was the rationale behind DOMA.

  4. Bithead says:

    James;
    The question being asked was why the USSC would get involved. I can’t imagine that with two such directly opposing state laws, the SC would NOT get involved…. if say, the ‘couple’ moves to Ohio, and demands the ‘rights’ they had in Mass…

    Can you imagine the more militant among the homosexual ‘rights’ movement not doing exactly this?

  5. Bithead says:

    re-re-reading…

    Sorry James, you did understand the point; we were aproaching it from different angles, and I didn’t see that.

    I suspect though, that a challange against the National DOMA will take place… and fail.

  6. dw says:

    The one reason why the SCOTUS will avoid the DOMA is because it’s a FF&C issue, not an issue of morality. If they uphold it it’ll reinforce the impression among the liberals that Bush v. Gore was a purely political decision. If they overturn it they will reinforce the perception among religious conservatives that it’s a Godless court.

    If I were Scalia, I’d be hoping that they can push through the amendment before anyone tries to take the federal route to overturn DOMA.

  7. phil massey says:

    Always leave a third option James.
    Failing either of the 2 options you suggested (the first one is pretty much out the window for me), we can alway fall back on plan C AKA Secession from the Union. Besides the mere threat of seceding could cause the constitutional ammemdment to pass more quickly, especially if can get our neighbors in Georgia and Missisippi onboard.

    The Free State of Alabama has a nice ring to it.

  8. James Joyner says:

    phil,

    I believe I read somewhere of something like that having been tried before without much success.

  9. James,

    More gay marriage?

    Man! You’re so single minded!!!

    🙂

  10. James Joyner says:

    Heh. I’m getting into a rut, to be sure. I blame Andrew Sullivan.

  11. Kate says:

    It won’t be long now before the courts will be deliberating on same sex pairs figure skating.

    Mark my word.

  12. Paul says:

    If they uphold it it’ll reinforce the impression among the liberals that Bush v. Gore was a purely political decision.

    You would think that after the court ruled the Sodomy was protected by the constitution, that would never be said again… Of course the people saying it are delusional so I guess facts really don’t enter into it.

  13. Jim says:

    Here is a 4th solution that isn’t quite a extreme as sucession: end marriage in Mass. To add a little explaination to my remarks: redefine the term civil marriage to civil union and allow the term marriage to take place in the relgious sector. Let the church pronounce someone married but file the result as a civil union.

  14. rd says:

    Its at least arguable that the Defense of Marriage Act doesn’t conflict with the plain meaning of the Constitution, since the full text of the relevant clause reads:

    “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    Arguably Congress is given to determine what the effect a state’s public acts will have in other states, and to hold in certain cases that they have no effect.

  15. phil says:

    James
    Ok, I’ll state it a different way since you don’t like the term ‘secession.’
    Replace ‘secede from the union’ with we ‘declare independance from the US’. Does that have more positive historical connotations in your view?
    The Revolutionay War was a civil war too. The union lost that one. Then the rebels became a diferent union.

  16. James Joyner says:

    phil,

    The Revolution was neither a civil war nor, properly speaking, a revolution. We didn’t overthrow the government of the UK, we declared our independence from it.

  17. No easy answers
    Apropos of the Massachusetts Supreme Court’s latest salvo in the Bay State’s same-sex marriage war, I suppose I should have something to say about the topic. From a sort of policy-wonkish point of view, I tend to agree with Steven…