Massachusetts Ruling Heats Up Battle Over Gay Marriage
By Jeff Gannon
Talon News
February 5, 2004

Four justices on the Massachusetts Supreme Judicial Court issued a majority advisory opinion Wednesday, saying a bill that would allow for civil unions but not marriage, makes for "unconstitutional, inferior, and discriminatory status for same-sex couples."

"The history of our nation has demonstrated that separate is seldom, if ever, equal," the justices said in the opinion.

With that, the battle lines sharpened in the culture war over homosexual rights and instantly made "gay marriage" an issue in the 2004 elections. The subject has been difficult for Democrats seeking the presidential nomination, recognizing that a majority of Americans oppose gay marriage. But at the same time, they realize that Democrats receive nearly all of the political support of gay rights activists.

None of Democrat candidates for president have unequivocally come out in favor of gay marriage, but all support civil unions. Even Rep. Dick Gephardt (D-MO) did not endorse gay marriage, despite the fact that his lesbian daughter Crissy was actively involved in his campaign for the nomination.

Democrat front-runner John Kerry (D-MA) may be in the most tenuous position since the decision was rendered in his home state. It will likely give Republicans the opportunity to cite this as further evidence that Kerry is a "Massachusetts liberal" and out of touch with mainstream American values. His vote against the Defense of Marriage Act (DOMA) may haunt him throughout the campaign.

The Republican position is clear and was articulated by President Bush in his State of the Union Address and reiterated in a statement issued shortly after the ruling was announced.

"Today's ruling of the Massachusetts Supreme Judicial Court is deeply troubling," Bush said. "Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining 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 president's pronouncement on Wednesday left little doubt that state legislatures will be scrambling to amend their constitutions to preclude gay marriage. On Wednesday, the Ohio Legislature gave final approval to one of the most sweeping bans on same-sex unions in the country. The new law would bar state agencies from giving benefits to both gay and heterosexual domestic partners, the 38th state to prohibit the recognition of same-sex unions. Republican Gov. Bob Taft is expected to sign the bill into law within the coming week.

Advocacy groups on both sides of the issue wasted no time in either applauding or denouncing the ruling.

Cheryl Jacques, a former Massachusetts state senator and president of a pro-gay rights group called Human Rights Campaign, released a statement saying, "It comes as no surprise to most people that the court upheld its earlier ruling for equality and fairness... The state's highest court did the only thing it could do in the face of such glaring discrimination against hard-working, taxpaying couples and their children in Massachusetts."

Carol Rose, Executive Director of the ACLU of Massachusetts, said in a statement, "Massachusetts's highest court has now made it clear that two people who fall in love and form a committed relationship should not be denied the right to protect their relationship through marriage just like any other couple."

Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project, explained, "The Court says that a 'civil union' system can never be really equal. If you give all couples the same state legal protections, the only possible explanation for saying same-sex couples are in a 'union' instead of a marriage is to say they are less worthy."

The Massachusetts court's pronouncement is galvanizing a conservative movement that has been dissatisfied with the Republican Party's positions on federal spending and immigration. President Bush stands to benefit by taking a strong stand to protect traditional marriage.

Rev. Louis P. Sheldon, Chairman of the Traditional Values Coalition, called the affirmation of homosexual marriage "a bad decision which is attempting to thwart government by the people and is yet another egregious example of judicial tyranny."

"Rather than trying to coax the Massachusetts courts and the legislature to do what is right, I believe the hour is at hand to introduce a Constitutional marriage amendment which defines marriage simply and clearly," Sheldon added.

Massachusetts Gov. Mitt Romney (R) said, "We've heard from the court, but not from the people. The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

Family Research Council President Tony Perkins said in a statement, "Today's decision by the SJC leaves no doubt what is at stake in Massachusetts. Either the institution of marriage will be protected, or it will be redefined out of existence."

Perkins chastised politicians who have played both side of the issue.

"The SJC has not left any wiggle room for state legislators who were hoping to bypass the controversial debate by simply granting homosexual couples civil union partnerships," Perkins said. "Instead each and every one of them will have to decide whether the people will be ruled by an unaccountable judiciary, or whether they will be given the power to overrule the SJC's decision."

Perkins indicated how high he thinks the stakes are when he said, "We are not just fighting to preserve marriage in Massachusetts. This case will determine the future of marriage throughout America. If same-sex couples 'marry' in Massachusetts and move to other states, the Defense of Marriage Act will be left vulnerable to the same federal courts that have banned the Pledge of Allegiance and sanctioned partial-birth abortion."

Roberta Combs, President of the Christian Coalition of America, said of the decision, "Congressional leadership needs to schedule hearings in both the House and Senate before the George Washington Birthday recess. They also need to schedule votes before the Independence Day recess. Christian Coalition is also calling on Massachusetts State Senate President Robert Travaglini to hold a vote on the Marriage Affirmation and Protection Amendment on February 11th during their constitutional convention."

Sandy Rios, president of Concerned Women for America, also called on Massachusetts legislators to uphold their role as the authors of the state's laws and to amend the state Constitution to defend marriage.

"The people are not going to let a few renegade judges destroy the fundamental institution of marriage," Rios said. "The founders of this state were patriots committed to the cause of liberty and equality. The people will not stand by and let the state become a dictatorship ruled by tyrannical judges."

Jan LaRue, chief counsel for CWA, dismissed the notion that same-sex "marriage" was now inevitable in Massachusetts.

"The court expressly refused to strike down the state's marriage laws," LaRue said. "They are still on the books. The court did not order the Legislature to grant same-sex marriage. It gave the Legislature 180 days to take whatever action 'it deemed appropriate in light of the ruling.' Amending the Constitution is appropriate action. If the amendment is passed, the Governor should issue an executive order forbidding the issuances of licenses except to opposite-sex couples in accordance with the marriage laws."

Sen. John Cornyn (R-TX) called for hearings on a constitutional amendment to defend traditional marriage.

In a statement, Cornyn said, "In September, I chaired a hearing that asked whether that important legislation and other traditional marriage laws were in peril due to judicial activism. Following today's ruling, the answer increasingly appears to be 'yes.'"

"Americans instinctively and laudably support two fundamental truths: that every individual is worthy of respect, and that the traditional institution of marriage is worthy of protection. Some opponents of traditional marriage laws, however, accuse ordinary Americans of intolerance because they support marriage. Such accusations are outrageous," Cornyn added.

Cornyn noted that even Sen. Edward Kennedy commented in 1996, "[T]here are strongly held religious, ethical, moral beliefs that are different from mine with regards to the issue of same-sex marriage which I respect and which are not indications of intolerance."

The Texas Republican, who previously served as the state's Attorney General, Texas Supreme Court Justice, and Bexar County District Judge finds the ruling "baffling."

He said, "There is no basis in law for this ruling, but these judicial activists don't let law stop them from imposing their political values on the American people by judicial fiat."

"Today, that same court charged supporters of traditional marriage with 'invidious discrimination,' in two separate passages," Cornyn added. "That court even called traditional marriage a 'stain' on our laws that must be 'eradicate[d].'"

Cornyn concluded, "The Congress must now act to protect the will of the people as expressed through their elected representatives."