Posted 10:28am December 2
by Ilana Weinberg
U-WIRE Washington Bureau
The Massachusetts Supreme Court ruled last Tuesday that the ban on gay marriage is unconstitutional, catalyzing a debate, which will likely become a key issue in the 2004 presidential election.
The 4 to 3 ruling was the most conclusive decision on same-sex marriage ever determined by a state court. The majority opinion, written by Chief Justice Margaret H. Marshall, stated that the Commonwealth “has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”
“The court’s decision is a long-overdue step towards realizing real legal equality, and bringing an end to the second-class citizen status to which gays and lesbians have been relegated,” said James Harold, a professor of philosophy at Mount Holyoke College.
The Massachusetts decision has gone further than both Hawaii’s 1993 high court decision that marriage laws were discriminatory, and Vermont’s 1999 high court ruling that required marriage-like benefits and protections for same-sex couples in civil unions, but did not entitle them to actual marriage licenses.
The ruling included a 180-day stay allowing the state legislature to react and rewrite the state’s marriage laws. During that time, the Massachusetts legislature could try to amend the state constitution, which would require a ratifying vote by the people.
“The real day of reckoning will come when the high court of some state declares that gays and lesbians are entitled to civil marriage itself,” said Andrew Seligsohn, assistant professor of Political Science at Hartwick College.
An amendment of the state constitution wouldn’t go into effect until at lest 2006, meaning there could be at least two years for gay and lesbian couples to obtain marriage licenses in Massachusetts before voters could strip those rights.
The ruling will likely have a ripple effect on states around the nation, going in one of two directions. It is expected to encourage the political and legal efforts of activists in many states to bring about similar rulings.
The conservative response is, however, expected to be just as strong. “It is likely that some states will assert the public policy exception to the Full Faith and Credit clause, arguing that they need not recognize a marriage that is against the ‘public policy’ of their state,” said Kellye Y. Testy, associate professor of law at the Seattle University School of Law.
The Defense of Marriage Act, signed into law by President Clinton in 1996, could allow any legislation passed to be contained to Massachusetts. Under the exception of the Full Faith and Credit clause of the Constitution, DOMA says that a state has the right to refuse to recognize same-sex marriages performed in other states.
President Bush publicly denounced the ruling. “Marriage is a sacred institution between a man and a woman,” he said. “Today’s decision of the Massachusetts Supreme Court violates this important principle.”
Republicans in Congress will likely respond to the ruling by pushing the passage of the Federal Marriage Amendment, which 96 members of the House of Representatives are currently sponsoring. Of these members, only eight are Democrats, all from the South and the rural Midwest. The FMA states that “Marriage in the United States shall consist only of the union of a man and a woman.” According to a study released last week by the Pew Research Center for the People and Press, opposition to gay marriage in America has increased since the summer, growing from a slight 53 percent majority in July, to a 59 percent majority in October.
More than three quarters of voters who favor the re-election of President Bush in 2004 oppose gay marriage, while voters who are hoping to see a Democrat in the White House are split with 46 percent in favor of gay marriage, and 48 percent opposed. “This issue could have a great impact on the 2004 Presidential Election; Bush thought he had California in the bag [in the 2000 election], but 50,000 fundamentalists stayed home,” said Professor Vincent Samar of the Illinois Institute of Technology’s Chicago-Kent College of Law. “This would be a galvanizing issue that would get a lot of people to come out and vote on the right.”
Samar predicted that the case may end up in the Supreme court in six or seven years. The decision in a case such as this would greatly depend on the judges sitting on the federal bench, which would in turn depend on who is in the White House. Right wing conservative voters will make it a priority to get out and vote when they realize what may be at stake, said Samar.
Leading Democratic candidates are likely to push this issue as the 2004 election draws closer. The frontrunners of the Democratic campaign have all issued statements in support of equal rights for homosexuals, to varying degrees, in attempts of unifying the party’s sentiments.
“As a society we should be looking for ways to bring us together and as someone who supports the legal rights of all Americans regardless of sexual-orientation, I appreciate today’s decision,” said General Wesley Clark.
Although most of the Democratic candidates have come out in favor of equal rights, many are weary of giving clear cut support to same-sex marriage. This is a familiar political issue for former governor Howard Dean, who signed Vermont’s civil unions bill into law himself.
“There will be those who try to use the decision today to divide Americans. Instead, this decision should be viewed as an opportunity to affirm what binds us together — a fundamental belief in the equality of human beings, regardless of race, gender, or sexual orientation,” said Dean.
