Massachusetts High Court Rules In Favor of Gay Marriage

i think gay couples should be allowed to have all the rights of married straight couples. what you call it is largely a question of semantics, but forcing the issue and calling it marriage, then imposing that solution on the rest of the country seems to me a poor way of deciding the question. i wish, probably not possible, it could be left to the individual state legislatures to decide. i'm not sure there is a "right" to marriage, even for straight couples, but then i'm not a legal scholar. i don't understand what's so special about the term "marriage" under massachusettes law. why can't they have the same rights, but call it a civil union? as i said, why force the issue?

 

I'm serious about the new word thing.

And by the way, it is totally legal for us to pile on bama in the privacy of our own BBS, as long as we don't "garry" him.

 

i think it's an ab-fab idea, and a win-win. gays get their "rights", so-cons can keep the "sanctity" of marriage.

 

Let's make up a new word for women's votes, too. We could call them wotes. What should we call black people's diplomas?

 

About ****ing time.

 

BJ, that would be clever, BUT...

... who cares about the semantics in those cases? Society was worried about letting women vote.

Here, society is not all that worried (in sum) about letting gay people join together and letting them enjoy the same benefits of union. However, a few old schools are very worried about the stupid word. To be honest, if I was gay, I might want a new word, because we straight folks have mightily ****ed up the term marriage. Easy for me to say, for sure, and I would prefer we all call it marriage in all cases, but what do gay people think? Maybe the semantic fix is just as offensive as the examples you provide.

 

i want to be clear, i agree with this result, but it's the process that's the problem. after all, process is important in a democracy- i think that's why we all find the election of 2000 so unsatisfactory, even those of us who agree with the result.

 

B-Bob:

First off, I think you're wrong that most Americans are okay with civil unions. Most Americans are against (or, at the very least, uncomfortable with) homosexuality in general. They don't want to be reminded of it and they certainly don't want it legitimized in any way. When they say something's being forced down their throats by the courts, that's what they're talking about. As I always say when we talk about this here though, the trend is good and these backward people will have to get Jesus about this or be left behind. Whatever they might like to believe to the contrary, homophobia (like racism) is on the decline and there will not be a meaningful reversal of that.

I'm not gay so I can't speak with authority to your question, but I would think that being denied the use of the word and all that it means (let's not forget, gays and lesbians were raised with the idea of marriage too just like all us "normal" Americans - and it means the same heavy things to them as it does to us) would upset gay people, yes. Whether they want to get married or not. Most gays don't want to serve in the military either, but they don't want to be denied the right due to bigotry about who they choose to love or sleep with.

There is no such thing as separate but equal. That's what the court meant when they said civil unions were unconstitutional.

 

I don't have a problem with gay people in unions, but to call it marriage? Nah, I don't think so. Marriage has been and always be defined as a man and a woman. We don't want to go down that path, because of what it opens up legally.

Being opposed to gay marriage is not counter-current to my MOSTLY libertarian views (it's funny how you guys always throw this well, that isn't a libertarian view at my posts that deviate and yet you proclaim loudly your independence from the views of one party or the another. I go my own way instead of reading from some party platform.) because the law is imposing a perversion upon an accepted norm for eons, that marriage is between a man and a woman. The thing that really goads me about it is that basically, Massachusetts voters are forcing it upon the rest of the nation. Gay couples everywhere will fan out to states with populations opposed to it and sue and win because of Article IV, which Mr. Buckley discusses in greater detail below:

The Constitutional Defense
Gay marriage.
By William F Buckley

The talk of gay marriage brings up two points of grave political magnitude.

The first is that gay-marriage evangelists are ready to take advantage of that clause in the Constitution (the Full Faith and Credit Clause) that requires individual states to respect legislation and judicial findings of other states in respect of citizens of those states. A couple who are married in the State of Virginia must be treated, when traveling in Wisconsin, as married. The Constitution (Article IV) does say that "Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

That authority of Congress here is presumably evidentiary, not substantive. Certainly that position will be taken by those who will be citing Article IV as requiring every state to acknowledge as a marriage anything so deemed by the judiciary of the State of Vermont. One might rest easy at the prospect of Vermonters proceeding with their own tribal laws, but of course it would not be so. The Reno-Nevada formula would surely happen again. In the Thirties, people who wanted to be divorced even though the laws in the state where they lived wouldn't grant a divorce, traveled to Reno, and came back with their Full Faith and Credit divorces.

These stratagems for avoiding the law in the state in which you live are challenged as never before by that juggernaut determined to go all the way with the license given by the Supreme Court's Lawrence decision, illegitimizing de jure anti-gay legislation. The idiomatic compression of the legal argument would read: Since they can have sex, why can't they marry?

We have then the Full Faith and Credit Clause of the Constitution prospectively sanctioning a dramatic alteration in the basic social arrangements of the United States. Those who don't want such a change coming in from judicial syllogisms have now only the defense of a constitutional amendment.

Conservatives correctly tend to back off from such amendments. It is correct that amendments have frequently been proposed in the past to advance tactical objectives, among them the protection of the flag against desecration.

But the test now should be framed differently. It is: How does a self-governing republic proceed with a judiciary that has taken to writing basic laws?

Privacy advocates are perfectly free to reason that somehow, implicit in the . . . spirit of the Constitution . . . there is something that permits the destruction of fetal life in deference to the private rights of women. But that is on the order of saying that somewhere in the bowels of Christianity there must be some inchoate provision against consigning anybody to hellfire. Such a position might be taken, pleading the infinite exercise of God's love. But it lieth not in any Christian catechism, no more in any constitutional document that abortion is an absolute prerogative of a putative mother.

If the Supreme Court is going to continue to perform as a standing constitutional convention, then it becomes a conservative warrant to employ constitutional defenses. Seventeen amendments were passed after the Bill of Rights was promulgated, the most important of which were of course the amendments that forbade slavery and extended full rights of citizenship to women.

The necessary amendment need go no further, nor should go any further, than to limit the application of the Full Faith and Credit Clause to exclude any requirement to abide by laws or judicial findings authorizing same-sex marriage. If individual states wish to authorize civil unions between members of the same sex, they would be free to do so, but not free to plead immunities particular to their own state as extending to all 50 states.

This is a tough one for President Bush. But we usefully remind ourselves that the vote of the executive in irrelevant in constitutional amendments. The (required) two-thirds vote of the two branches of the legislature are outside the reach of a presidential veto. But, running for reelection, Mr. Bush's leadership in promoting this defense of marriage would figure prominently in the campaign for approval by three quarters of the state legislatures.

link

Sleight of Hand
Gay marriage and federalism — again.

By Hadley Arkes, Ney Professor of Jurisprudence at Amherst College, and a fellow of the Ethics & Public Policy Center
August 14, 2001 10:30 a.m.

I know that Jonathan Rauch would not take for himself the role of Slick Willie, or start offering us deals that hinge on what the meaning of the word "is" is. And yet, what would we make of his recent comeback in the exchange over gay marriage and federalism? I have charged him, in that exchange, with feigning a devotion to federalism while he would leave it in the power of activist judges in the states to impose gay marriage under the pretext of their own constitutions. At the same time, his friends have been busy litigating in federal courts to override the laws on marriage in the states. Rauch conceded that a constitutional amendment could be apt and warranted, and I invited him then to take an additional step: He "could add to his amendment a denial that anything in the constitutions of the separate states may be construed to require same-sex marriage. If he took that step, we might indeed have the grounds for a settlement." But when he took that step, I said, he would have backed into the text of the Federal Marriage Amendment.

Rauch affected to take me up on the invitation by making this counter-offer as an amendment: "Nothing in this or any state's Constitution shall require any state to recognize as a marriage any union but that of a man and a woman." To see the sleight of hand at work, one has to compare this formulation with the language already contained in the Marriage Amendment: "Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." The amendment explicitly bars any officer of the law from construing the constitution of a state to require, and therefore, impose same-sex marriage. Rauch, with a trick of the eye, adopts part of the language, but he still leaves the judges free to decide that the local Constitution "permits" gay marriage. From there, it is a short step to the conclusion that the legislature must make it clear that the laws are indeed open to this possibility, by altering the traditional laws of marriage, which now preclude this wholesome novelty.

But why the sleight of hand? If Rauch truly accepted our argument that the decision ought to be left in the hands of the voters in the separate states, he could simply have accepted the language of the amendment. The only rationale for resisting that language was that in fact he refused to join us in barring the judges from changing the laws on their own. Yet, in that case, why would he feign to offer a compromise that pretends to meet our concerns, while not meeting them at all? The gesture requires an added measure of chutzpah when, in the same essay, he makes clear that he is indeed determined to do nothing to restrict the role of the judges here. As Rauch puts it:

I may not have liked what Vermont's judges did, but the question is whether Vermont should be allowed to have a system in which the judges could do it. If the answer is no, then people outside Vermont could wind up deciding how many chambers the state legislature should have, whether state judges are elected or appointed, how often the board of prisons should meet — you name it.

Jonathan Rauch is well versed in the Constitution, and he knows quite well that, under the Constitution, it has indeed been legitimate and necessary to put restraints on the power of judges. In the 1930's, liberals led the move to restrict the power of federal judges to intervene in disputes with unions, and make ready use of injunctions to break the backs of strikes. That legislation sprung from the power of Congress, under the Constitution, to alter the jurisdiction of the federal courts — and even determine whether there will be lower federal courts in the first place. If a state used devices to bar blacks from being selected as judges, Rauch knows that there would indeed be a move into federal court and a willingness to interfere with the authority of the state to arrange the selection of its own judges. If we think that there is a distinct danger right now of judges misusing their authority to reshape the very matrix of our laws on marriage and the family, there is nothing in the Constitution or the federal structure that bars us from dealing with that danger. We can deal with it while leaving quite unimpaired the authority of the states to determine the number of houses in their legislatures or whether their judges are elected or appointed.

Rauch raises the question of whether my own side is feigning: We profess our willingness to take our chances with the electorate, while at the same time we are seeking to establish, in the fundamental law, the essential meaning of marriage as the union only of a man and a woman.

We are not seeking local options, or the varieties of federalism, on that sovereign point. After all, when we speak of amending the Constitution, or fixing the terms of the fundamental law, the purpose is to secure something of substance, beyond the shifts and vagaries of local politics. But Rauch, with his criticism, misses a couple of critical points that run to the heart of things.

He curiously overlooks the fact that, in moving into the arena with a constitutional amendment, we are indeed taking our chances with the electorate. In order to succeed, we need to persuade two-thirds of the Congress and the people in three quarters of the states. Rauch's friends, in contrast, hope to accomplish their own ends by recruiting to their side about a dozen judges. Still, Rauch would charge us with being insincere friends of federalism because we would actually seek a policy of securing the substance of marriage. He would counsel to be neutral or detached on the things that are chosen in the separate states, and to affirm instead the importance of leaving the states free to make their own choices. That is an ancient lure, and by this time in the seasons of our experience, we should know what is wrong with it. Consider the form of the argument stated differently: "You think that it is wrong to burn widows on the funeral pyres of their husbands. We think it is a matter of private choice. Therefore, let us have a 'neutral' rule: If people think it wrong, let them refrain from doing it; but if they think it right, they should be free to honor their own judgments. Let us be, then, 'pro-choice.'"

But of course, there is nothing the least "neutral" in this arrangement. It merely installs the premises of one side, the side that insists that there is no moral right and wrong here that can override anyone's personal choice. When Jonathan Rauch asks us to join him in a neutral rule of federalism, he does not ask us merely to accept a set of procedures. He asks us to accept a policy that installs his own premises; an arrangement that virtually gives the victory to his side. To put it another way, his notion of federalism is that the states are free to decide, within a framework built upon the notion that no form of marriage is more rightful than another.

As Rauch knows, there is a continuing argument, even among conservative friends, as to whether the Amendment could do more to ban domestic partnerships and civil unions under various names. But the authority to devise those alternatives does not spring from anything in the Amendment. It finds its source in the legislative powers of the states themselves, and there may be no practicable way of removing that power to invent all kinds of new names for alliances that look like marriage. We have said, however, that we are willing to face that question, and make the argument, state-by-state, in defending marriage. What we are not willing to do is enter into a scheme of local options, or a false federalism, that begins from the premise that we leave the decision to the states because there is no truth to declare, no sense of right and wrong that finally commands our judgment. The Marriage Amendment contemplates an active politics in the states, but it begins with the proposition that "Marriage in the United States shall consist only of the union of a man and a woman." That is the central point of substance that we seek to plant in the law. That is the step that Jonathan Rauch is determined to resist, and no verbal formulas can finally cover over, or get around, that decisive point.

What Rauch seems to ignore is that a federal structure is the structure, nevertheless, of an integrated polity. As the Supreme Court itself suggested, the prospect of wives being burned on funeral pyres could not be permitted by the civil law even if it were taking place under the auspices or religion — or even if the practice were confined to one state. The Court made this argument in the course of explaining why the federal government was justified in repressing polygamy even though this novelty in the laws of marriage was confined to Utah. Somehow there seemed to be an awareness in the country that the effects of polygamy could not be confined in that way. Once it were admitted into the laws of the United states, the federal constitution would make it hard to cabin that practice in one or two states. Jonathan Rauch knows himself that, on anything he regards truly as a wrong, he would not waive his objection if the wrong were confined to one state. He would not find human sacrifice something he could tolerate if it took place only in New Jersey. And on the other side, if he thought he had a rightful freedom to enter into a marriage with another man, he would not think much of that franchise if he lost it when he crossed the border into another state. It is illusory to think that the gay activists would settle for that arrangement, even if Jonathan Rauch would. But if gay marriage is installed in any state, how could there not be seepage if we adopted Rauch's premise and said, "We are farming these decisions out to local choice precisely because there are no rightful and wrongful notions of marriage that deserve to be enforced in the laws." To accept a premise of that kind is not to firm up marriage in the states that hold back from adopting same-sex marriage.

It is to plant, rather, the premises that would surely undermine the institution of marriage by eroding the convictions that sustain the idea of marriage as a distinct, intrinsic good. As Maggie Gallagher has remarked, it is not free love, but the marriage vow, that is daring. We are at the edge of a grave, flippant mistake if we discount how easy it may be to undercut conventions long established simply by switching from veneration to mild scoffing; by suggesting that the vow has become implausible because, in the end, no form of marriage is more rightful than another.

 

"I'm a bigot" would have used up less server space.

 

There was a time when you could say " marriage is, and always has been defined as a property arrangement." Or "a matter of ownership ( man owning woman)". Or "only between people of the same racial origin"...etc. Would traditionalism extend so far as to want to revive these customs in the interest of consistency?

 

...am I alone in thinking that this gay marriage thing isn't that important an issue? It's not important to me, anyway.

 

If someone could please outline this for me. Not rhetorically -- literally -- where does it say marriage is a sacred bond between a man and a woman, not a man and a man? I don't know.

This issue baffles me. If you want to protect the sanctity of marriage via legislation or a constitutional ammednment, wouldn't you make divorce and adultery felonies? How do strip clubs fit into the sanctity of marriage? I do no understand how including loving people into an institution weakens the institution. It just seems like divorce is a much bigger threat to marriage. That and Tivo.

For the life of me I do not follow this one. What the hell is the president all revved up about it for? What is the foundation of the anti-gay-marriage position? Anyone can answer.

Thanks
cbfc

 

How about in the wedding vows? I doubt that that kind of language is in the statutes.

I think the result is good but I'm confused about more than just the process. I agree with RM95; heterosexuals have done enough damage to the institution of marriage that they have no ground to stand on when they try to "protect" it from homosexuals.

You all spent so much time insulting bamaslammer that no one answered the question he raised: what is the difference between a civil union and a marriage?

On the surface it would appear that a marriage involves the ceremony, support and endorsement of a recognized church. Is this decision forcing churches to perform these ceremonies? That would be bad. Let's hear that all-too-familiar chorus extolling the virtues of separation of church and state.

Does that mean that our mommies and daddies who were married at the courthouse were not actually married? They were only "civilly united."

My mom and dad eloped and were married by a Justice of the Peace in Beaumont. Does that make me a b*stard?

How exactly does the second-class status of a civil union get expressed?

 

Ridiculous. And this argument of "if we want to be traditional, lets just bring back slavery as well" is ridiculous too. There is nothing "bigotted" about thinking that marriage should be between a man and a woman. I believe the federalism argument, about one community imposing its standards on the rest of the country via judicial fiat and the fact that it will open the door for our laws to be unable to govern even more abberant behavior like polygamy. Thanks BJ for re-confirming that you are a total tool. Thanks for simply being a bunch of followers, folks. Debate and Discussion my ass.

 

No civility discussing civil unions.

Ah, the irony is thick today, my friends.

 

So will single people get those extra benefits too????

It is about benefits
to me .. the religious, moral, social arguments at smoke screens

Rocket River
I want the Bennies

 

My biggest issue is simple

THE MANDATE OF MARRIAGES BY LAW
IMO
VIOLATES THE SEPERATION OF CHURCH AND STATE

Marriage started as a religious covenant
a Religious event
whatever you want to call it

To make ANY LAWS governing it is IMO
a Violation . . . ..

QUESTION: If you are for this particular issue
are you for Poligamy?

If not . . . . why?

We now have the right to marry anyone [male or female above the legal age]

Are we oppose to marrying MULTIPLE people?

Rocket River
Man . . . imagine the PALIMONY SUITS!

 

For the record, a Tivo-like device (ReplayTV is the brand name) brought my wife and I closer together.

 

When my father married for the third time, his new bride was catholic and the church annuled his marriage to my mother, even though that marriage lasted 20 years and produced 5 children, and there was an interveneing marriage of 12 years. So, i woke up one morning at the age of 33 to discover I was indeed a b*stard! of course, many people had long suspected as much...

here're yesterday's thoughts of the junior senator from Mass:

"I believe the right answer is civil unions. I oppose gay marriage and disagree with the Massachusette's court's decision."

and there's a long article in today's WSJ from the governor, Mitt Romney:
--
One Man, One Woman
A citizen's guide to protecting marriage.

BY MITT ROMNEY
Thursday, February 5, 2004 12:01 a.m.

No matter how you feel about gay marriage, we should be able to agree that the citizens and their elected representatives must not be excluded from a decision as fundamental to society as the definition of marriage. There are lessons from my state's experience that may help other states preserve the rightful participation of their legislatures and citizens, and avoid the confusion now facing Massachusetts.

In a decision handed down in November, a divided Supreme Judicial Court of Massachusetts detected a previously unrecognized right in our 200-year-old state constitution that permits same-sex couples to wed. I believe that 4-3 decision was wrongly decided and is deeply mistaken.

Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government.

Marriage is a fundamental and universal social institution. It encompasses many obligations and benefits affecting husband and wife, father and mother, son and daughter. It is the foundation of a harmonious family life. It is the basic building block of society: The development, productivity and happiness of new generations are bound inextricably to the family unit. As a result, marriage bears a real relation to the well-being, health and enduring strength of society.

Because of marriage's pivotal role, nations and states have chosen to provide unique benefits and incentives to those who choose to be married. These benefits are not given to single citizens, groups of friends, or couples of the same sex. That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.

It is important that the defense of marriage not become an attack on gays, on singles or on nontraditional couples. We must recognize the right of every citizen to live in the manner of his or her own choosing. In fact, it makes sense to ensure that essential civil rights, protection from violence and appropriate societal benefits are afforded to all citizens, be they single or combined in nontraditional relationships.

So, what to do?

• Act now to protect marriage in your state. Thirty-seven states--38 with recent actions by Ohio--have a Defense of Marriage Act. Twelve states, including Massachusetts, do not. I urge my fellow governors and all state legislators to review and, if necessary, strengthen the laws concerning marriage. Look to carefully delineate in the acts themselves the underlying, compelling state purposes. Explore, as well, amendments to the state constitution. In Massachusetts, gay rights advocates in years past successfully thwarted attempts to call a vote on a proposed constitutional amendment banning gay marriage. This cannot happen again. It is imperative that we proceed with the legitimate process of amending our state constitution.

• Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature's job to pass laws. As governor, it is my job to carry out the laws. The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the constitution. This is not simply a separation of the branches of government, it is also a balance of powers: One branch is not to do the work of the other. It is not the job of judges to make laws, the job of legislators to command the National Guard, or my job to resolve litigation between citizens. If the powers were not separated this way, an official could make the laws, enforce them, and stop court challenges to them. No one branch or person should have that kind of power. It is inconsistent with a constitutional democracy that guarantees to the people the ultimate power to control their government.

With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That's wrong.

• Act at the federal level. In 1996, President Clinton signed the Defense of Marriage Act. While the law protects states from being forced to recognize gay marriage, activist state courts could reach a different conclusion, just as ours did. It would be disruptive and confusing to have a patchwork of inconsistent marriage laws between states. Amending the Constitution may be the best and most reliable way to prevent such confusion and preserve the institution of marriage. Sometimes we forget that the ultimate power in our democracy is not in the Supreme Court but rather in the voice of the people. And the people have the exclusive right to protect their nation and constitution from judicial overreaching.

People of differing views must remember that real lives and real people are deeply affected by this issue: traditional couples, gay couples and children. We should conduct our discourse with decency and respect for those with different opinions. The definition of marriage is not a matter of semantics; it will have lasting impact on society however it is ultimately resolved. This issue was seized by a one-vote majority of the Massachusetts Supreme Judicial Court. We must now act to preserve the voice of the people and the representatives they elect.

Mr. Romney is governor of Massachusetts.