Mass. court affirms gays' right to wed

Civil unions not enough, justices tell state senators

Bias `against a defined class'

Lawmakers may pursue constitutional amendment

February 05, 2004|By Frank Langfitt | Frank Langfitt,SUN STAFF

In a ruling certain to fuel the national debate over gay marriage, the Massachusetts high court made it crystal clear yesterday that the state must make marriage accessible to same-sex couples.

If the state legislature complies with the court's ruling - and many observers think it has little choice - marriage licenses could become available for same-sex couples for the first time in the United States as early as May.

"Unless some last-minute legal work can stay this proceeding, I think Massachusetts will be at the point of having to pass legislation redefining marriage," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a public interest law firm opposed to gay marriage.

In its 11-page advisory opinion, the state's Supreme Judicial Court rejected a proposal from the Massachusetts Senate to create "civil unions," which would have provided the legal benefits of marriage without the title.

Some legislators had supported such unions - which are recognized by neighboring Vermont - after the court ruled in November that the state could not deny gay couples the right to marry.

"For no rational reason, the marriage laws of the commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain," the court said yesterday. The civil unions bill being considered by legislators "would have the effect of maintaining and fostering a stigma of exclusion that the [state] Constitution prohibits."

In Washington, President Bush issued a statement that called the decision "deeply troubling" and renewed a threat to support a constitutional amendment banning gay marriage if state courts approved the institution.

"Marriage is a sacred institution between a man and a woman," Bush said. "If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage."

The Massachusetts legislature has scheduled a constitutional convention next week to consider an amendment that would ban gay marriage, but yesterday's ruling left lawmakers unsure of their next move. Such an amendment would have to be approved by two successive legislatures and a required referendum could not be held until 2006.

Although the drive for a national constitutional amendment has gained some support on Capitol Hill, passing such a measure is difficult. It requires a two-thirds vote of Congress and ratification by three-quarters of the state legislatures.

Even some staunch opponents of gay marriage question changing the constitution over the matter, saying they are wary of altering such an important national document.

Instead, 37 states have passed so-called Defense of Marriage Acts, which define marriage as a union between a man and a woman. They create a considerable legal hurdle for same-sex couples who might, in the future, ask one state to recognize a marriage license from another, such as Massachusetts.

On Tuesday, the Ohio legislature enacted one of the broadest same-sex marriage bans. Republican Gov. Bob Taft is expected to sign the measure.

Maryland does not recognize same-sex marriages but has not approved a Defense of Marriage law either.

Observers said yesterday's decision in Massachusetts could galvanize opposition to gay marriage, which national polls show that most Americans oppose. However, gay rights advocates see the opinion as another significant victory in what has been a banner year for their cause.

The Massachusetts ruling has no direct bearing on other states, but it could influence judges in jurisdictions where advocates are litigating for a gay marriage law, said David Buckel, head of the marriage project at Lambda Legal, a gay and lesbian civil rights organization.

For example, New Jersey judges hearing a suit that Lambda is litigating there are certain to read the Massachusetts decision. And if Massachusetts issues same-sex marriage licenses this year, Buckel said, Americans will see firsthand that there is no threat.

"Same-sex couples will get married, their children will be better off, and everybody is going to turn around and say: `This isn't such a bad thing,'" Buckel said.

In Annapolis, Del. Emmett C. Burns Jr., a Baltimore County Democrat, again introduced a bill that would bar Maryland from recognizing same-sex marriages or civil unions performed in other states.

Burns, pastor of Rising Sun First Baptist churches in Woodlawn and Catonsville, called the Massachusetts's decision "legislating by decree."

"If my bill passes, even if Massachusetts permits gay marriages, they can't come here and have those marriages recognized," said Burns, who has submitted the bill twice before.

Other religious leaders in Maryland said yesterday's ruling might help gay rights advocates within their churches but would cause further polarization.

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