HISTORY OF SAME-SEX MARRIAGE IN MASSACHUSETTS

In April 2001, Hillary Goodridge, together with several other plaintiffs, commenced a civil action in Superior Court seeking the right to obtain marriage licenses for same-sex marriages.  While the lower court denied the plaintiffs’ request, the Supreme Judicial Court (SJC), Massachusetts’ highest court, granted the plaintiffs’ application for direct appellate review. The SJC then considered the question of whether the denial of a marriage license to same-sex couples was in harmony with the Massachusetts Constitution. In November 2003, the SJC ruled that  no constitutionally adequate reason existed justifying the denial of civil marriage to same-sex couples, and that the constitution affirms the dignity and equality of all individuals and forbids the creation of second-class citizenship. The SJC’s decision went on to state that the Massachusetts courts could not control persistent prejudices against homosexuals in society, but that the court would not tolerate such prejudices. The SJC then set a date in May 2004 for the commencement of the issuance of marriage licenses to same-sex couples in the Commonwealth.

              In the winter of 2004,Representative Travaglini, as Speaker of the House, proposed an amendment to the legislature which called for a ban on same-sex marriage but also called for the establishment of civil unions for same-sex couples. The amendment passed the first of two legislative votes that would be required for its ultimate submission to public referendum. Meanwhile Governor Mitt Romney attempted through every way possible to delay the implementation of the SJC’s decision before the May deadline, when that court mandated that marriage licenses must be granted to otherwise qualified same-sex couples who applied. Governor Romney ultimately failed in this stalling tactic because neither the legislature, nor the Speaker of the House (despite the fact that the Speaker was against same-sex marriage) would cooperate with Governor Romney.

              On May 18, 2004, the first same-sex couples were married in Massachusetts. During the next few months several momentous events in other places showed that the winds of change were not just confined to the Commonwealth. In July 2004, both Canada and Spain legalized same-sex marriages, joining two other countries which had already long-since done so: the Netherlands and Belgium. In September 2004, the Connecticut legislature, without judicial prompting, instituted civil unions for same-sex couples, and also recognized the civil unions and domestic partnerships of those few states that already allowed some form of recognition for same-sex couples: Vermont, which allows Civil Unions; and California, New Jersey and Maine, each of which allow some form of recognized domestic partnership. The Connecticut law did not, however, recognize the marriages in Massachusetts, as their constitution did not recognize same-sex marriage. However, Connecticut couples who had been married in Massachusetts would be given civil union status in Connecticut, if they so applied.

              At the same time, invoking a long disused law that had been passed in 1913, Governor Romney declared that marriage licenses could only be issued to Massachusetts residents, as the law stated that marriages of out-of-state couples could not take place in Massachusetts if the marriage would not be legally recognized in the couple’s state of residence. Since no other state allowed same-sex marriages, the 1913 law applied to all residents of the U.S. who did not reside in Massachusetts. A suit was filed in June 2004 challenging this law as discriminatory based on its original purpose of preventing interracial couples from states where such marriages were illegal, to marry in Massachusetts. Later in March 2006, the SJC upheld the law.  As a result, couples cannot marry in Massachusetts if their marriage would be invalid in their state of residence.  However, residents of states that did not have clear-cut prohibitions against same-sex marriages were not affected by the 1913 law.  For example, Rhode Island neither specifically allowed nor specifically prohibited such marriages. Since the SJC’s ruling on the 1913 law, several states in the union have enshrined discrimination in their constitutions by specifically prohibiting same-sex marriages by constitutional amendment.

              At about the same time that the 1913 law was being challenged, a bill to legalize same-sex marriage in California passed the legislature, but was vetoed by the governor.  At the time of his veto, however, Governor Schwarzenegger stated that he would also veto any attempts to rescind the domestic partnership laws already in effect, as some anti-gay-union opponents in the California legislature were contemplating.

              Meanwhile there was much controversy in religious circles about the Massachusetts SJC ruling. This controversy would lead in the months to come to attempts at political influence by religious institutions. The Roman Catholic Church and most of the more conservative Protestant denominations expressed their dismay and began encouraging lobbying efforts within their congregations by stating that such marriages were not allowed and that they must be fought in the political arena. The Episcopal Diocese of Massachusetts declared its support for the SJC ruling and the concept of civil marriage for same-sex couples; Bishop Shaw stated that, though the Canons of the church did not at this time allow Episcopal priests to perform the civil marriage itself, individual priests in the Diocese of Massachusetts would be allowed to bless such marriages at the individual priest’s pastoral discretion. Clergy in the more liberal Protestant denominations and the Unitarian Church also supported the SJC ruling, as did many Jewish congregations.

              In September 2004, after much debate, the second vote was taken on the Travaglini amendment, leading to its defeat. Same-sex marriage was still legal, and civil unions were rejected. At the same time, a citizens’ petition seeking to put a proposed constitutional amendment on the ballot that would define marriage as between a man and a woman was announced. Signatures for this petition were actively solicited by anti-same-sex marriage groups such as the Family Institute using an out-of-state professional organization to canvass and obtain signatures. The Massachusetts Roman Catholic Dioceses also actively advised their congregants to sign this petition, which was actually circulated at masses on a particular Sunday in October, though not all priests cooperated with this assault on their gay parishioners. As time went by, it was discovered that the company soliciting the signatures used bait-and-switch tactics, as well as out-and-out fraud, in its pursuit of signatures. As a result, many signers were led to believe that they were signing a petition to allow the sale of beer and wine in supermarkets. There was no legal remedy for such tactics so that signatures filed properly and not directly discredited by the signer were considered valid. Upon discovering this loophole, legislators introduced bills that would tighten controls on such petitions and impose penalties for obtaining signatures through fraudulent methods.

              Both the passage of time and the debates in the legislature over the Travaglini Amendment brought the whole issue into perspective for many of the legislators. Those legislators supporting what they considered a civil rights matter were being joined by others who had been on the fence – especially if civil unions were not being proposed as an alternative to civil marriage. Even many legislators who had been thoroughly opposed were feeling uneasy for several reasons: altering the Constitution in a way that would be perceived as diminishing the civil rights of individuals was not taken lightly, even by gay marriage opponents; though opposed to the concept of “civil marriage” some legislators did not have strong objections to “civil unions”; many legislators found the unethical obtaining of signatures to be unnerving; and finally too much legislative time had already been devoted to this issue when other more pressing issues, especially health care and education, were being ignored.  Representative Eugene O’Flaherty, who vehemently opposes gay marriage, is an example of such thinking. He has stated that he would not be among the fifty legislators who would vote to bring the marriage amendment to ballot when the petition reached the House.

              In January 2006 a lawsuit was filed challenging the allowance of the petition at all, on the grounds that such petitions may not be honored when they “relate to the reversal of a judicial decision.” The lawsuit went on to argue that any law that would reverse a judicial decision must be done through the legislature itself, not by means of a ballot question. The Attorney General allowed the petition on the grounds that the proposed amendment would not reverse the Goodridge decision itself, that same-sex civil marriages already performed would still be valid, and that any new law or amendment to the Constitution would only affect those who wished to marry after the amendment took effect. The result the proposed amendment, of course, would create two classes of citizens within the Commonwealth and would be open for future challenges. The Attorney General was also asked officially in January 2006 to investigate the apparent fraudulent methods used in obtaining the signatures for the ballot petition.

              Ultimately, the Massachusetts Supreme Judicial Court upheld the Attorney General’s decision and the ballot petition was allowed to proceed on the basis that the proposed amendment would prohibit future same-sex marriages, but would not nullify the Goodridge decision.  In other words, already existing marriages would not be dissolved by this amendment after the fact.  However, the Court stated that such an amendment could not be said “to further a proper legislative objective”, one of the criteria for amending the Constitution. The Court stated: “The only effect of a positive vote [to enact the amendment] will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form.”  Such discrimination is prohibited by the Constitution.  Thus the enactment of this amendment would create a circular inconsistency within the Constitution which would definitely lead to legal challenges for years to come.

              Once the petition was recognized, the next steps were to obtain approval of the proposed amendment from at least twenty-five percent of the joint legislature at a Constitutional Convention during two separate sessions, and then be passed by a majority of the voters on a public ballot in the following election cycle. Historically, such amendment petitions have only gone to a vote of the legislature twice since the petition procedure was adopted.  Voting on petitions which the legislature deemed ill-advised were customarily postponed or tabled until the time limit had past, thus killing the amendment.  However the anti-same-sex marriage forces were determined that this would not happen in this case.

              Those opposed to same-sex marriage filed a lawsuit with the SJC seeking to force the legislature to vote on the merits of the proposed amendment.  They argued that the law stated that the legislature “shall vote” rather than “may vote”.  The SJC upheld this interpretation, stating that the legislature was constitutionally obligated to vote on the merits of the petition, but that the Court could not force them to vote.  Taking this to heart, and despite the newly-elected governor’s stating that legislators should not vote on this discriminatory issue, the Great and General Court in Constitutional Convention voted on January 2, 2007.  The measure passed with slightly over the required twenty-five percent.  The vote was called for reconsideration and after recess it passed again.  The proposed amendment now must be brought before the Constitutional Convention one more time within the next year.  If it passes again, the proposed amendment will be included on the next ballot in 2008. In the meantime, the 2006 election has intervened resulting in the defeat of several anti-gay marriage legislators. Even so, the post-election shift in the legislature still may not be enough to provide the seventy-five percent of negative votes required to defeat this reprehensible proposition.