Ten Years Ago Today: The SJC Declares Marriage Equality the Law of the Commonwealth

We all know Massachusetts is not perfect, and our political process at times leaves much to be desired. But I’ve long been proud of my roots here, in one of our most liberal states and a place that has been in forefront of many important social and political movements in our nation’s history – including the one that created our nation in the first place. In my own lifetime, I’ve rarely been more proud of Massachusetts than I was ten years ago today: the day the first United States court decision mandating marriage equality was issued right here in Boston. As we appreciate how far things have come in a decade, it’s worth taking a look back at how we got there.

Hawaii

By November 18, 2003, marriage equality was an idea that had been percolating for some time. As early as 1990, civil rights pioneers were setting events in motion. That’s when three same-sex applied for marriage licenses at the Hawaii Department of Health and, after the state health director consulted with Hawaii’s Attorney General, had their applications denied. On May 1, 1991, they filed a lawsuit challenging that determination: Baehr v. Lewin. The lawsuit alleged that denying a marriage license on the sole ground that the members of the couple were of the same sex violated the United States Constitution and the Hawaii Constitution (each state’s constitution, in theory, can grant rights wholly independent of the federal constitution; indeed, state courts are final arbiters of the state constitution’s meaning and may interpret a clause differently from how the U.S. Supreme Court interprets an identically-worded clause in the U.S. Constitution, although some state courts are reluctant to so rule).

The trial court dismissed the case and the plaintiffs appealed to the Supreme Court of Hawaii, which ruled in May 1993 (74 Haw. 530) that the state’s refusal to grant marriage licenses to the same-sex couples constituted discrimination on the basis of sex (other courts have rejected this reasoning, arguing that two men would be denied exactly equally to two women). Accordingly, the Hawaii Supreme Court held, the exclusion of same-sex couples could only pass muster under Hawaii’s Equal Protection Clause if it could satisfy the “strict-scrutiny test,” a high bar to meet: the state would bear the burden of establishing that denial of marriage licenses to same-sex couples “further[ed] compelling state interests and [was] narrowly drawn to avoid unnecessary abridgments of constitutional rights.” The case was sent back to the original court for trial based upon that standard.

The political response to the court’s ruling was swift. Hawaii’s legislature passed a law restricting civil marriage in the state to one man and one woman, but creating a commission to consider granting certain practical benefits of marriage to same-sex couples. In late 1995 the Commission actually recommended that the legislature open marriage to same-sex couples and that it create as well a comprehensive domestic partnership act to be open to all couples without respect to sex.  Action was not taken on those recommendations right away, but some practical benefits of marriage were extended to same-sex couples in 1997.

The federal reaction was more severe: in 1996 the Republican-led Congress passed (with plenty of Democratic support), and President Bill Clinton signed (to his everlasting shame), the “Defense of Marriage Act,” or DOMA. This ignominious statute, Section 3 of which was struck down earlier this year, provided that the federal government would not recognize same-sex marriages for purposes like federal tax status, and that no state would be required to recognize a same-sex marriage performed in any other state.

Meanwhile, back in Honolulu, the trial got underway in 1996 under the name Baehr v. Miike (Lawrence Miike having replaced John Lewin as Hawaii’s Director of Health). The state identified five “compelling state interests” that, in its view, justified excluding same-sex couples from marriage. They were: (1) protecting the health and welfare of children and other persons; (2) fostering procreation within a marital setting; (3) securing or assuring recognition of Hawaii marriages in other jurisdictions; (4) protecting the State’s public fisc from the reasonably foreseeable effects of State approval of same-sex marriage in the laws of Hawaii; (5) protecting civil liberties, including the reasonably foreseeable effects of State approval of same-sex marriages, on its citizens.

To my mind, these purported interests were no more compelling in 1996 then they are now. Numbers 1 and 2 are laughable. Number 3 amounts to “we can’t have our own public policy until everyone else is OK with it.” Number 4 says “we have a compelling interest in discriminating because it would cost us money to give same-sex couples ‘married’ tax status.” Number 5 is the trope about religious freedom not to perform same-sex marriages, which has nothing to do with civil marriage.  The trial judge rejected all of these arguments, but stayed his ruling that marriage licenses be issued to otherwise-qualified same-sex couples pending appeal.

While the case was back in the appellate courts, the voters of Hawaii approved a state-constitutional amendment (Article I, Section 23) allowing the legislature to “reserve marriage to opposite-sex couples,” which it had already done. The Supreme Court ruled in 1999 that this amendment defeated the plaintiff’s claims. Marriage equality would not come to Hawaii until last week.

Alaska

A similar situation unfolded in Alaska. In a lawsuit captioned Brause v. Bureau of Vital Statistics (1998 WL 88743), the Alaska Superior Court ruled that the state needed a compelling reason to deny marriage licenses to same-sex couples and ordered a trial on the question. The Alaska legislature immediately placed on the ballot an initiative to amend the state constitution to limit marriage to “one man and one woman.” It passed in 1998 with 68% of the vote to become Article I, Section 25 of the Alaska constitution, and the court case was dismissed as a result. Alaska still does not have marriage equality.

Vermont

The next battleground was Vermont, another place where I have deep roots (my grandmother’s ancestors were among the first English settlers in Vermont in the 1760s). A largely tolerant state, Vermont had enacted hate crimes legislation including sexual orientation protections as early as 1990, and had added sexual orientation to its anti-discrimination statute in 1992. Previous Vermont court decisions, on issues like adoption, had been favorable to same-sex couples as well.

The Vermont case, Baker v. State of Vermont, however, was dismissed by the trial court on the theory that state law afforded no relief, because marriage statutes clearly excluded same-sex couples. The trial judge further ruled that the statutes were constitutional because they furthered “the link between procreation and child rearing.” The case was appealed to the Vermont Supreme Court, which issued its decision in 1999 (744 A.2d 864).

The state’s high court agreed with the trial judge that Vermont’s marriage statutes were best read to limit marriage to one man and one woman, but found that, read that way, they violated the “Common Benefits Clause” of the Vermont constitution, which requires that “exclusions from publicly-conferred benefits and protections must be ‘premised on an appropriate and overriding public interest.’” As the Hawaii trial court did, the Vermont Supreme Court unanimously rejected the alleged “public interests” suggested by the state, including the one the trial judge had accepted.

The court divided, however, on the question of remedy: a majority directed the legislature to grant same-sex couples “equivalent statutory rights and privileges to male-female couples,” but left the door open for doing so via “domestic partnerships” rather than extending full marriage to those couples. Justice Denise Johnson expressed her disagreement with this remedy, arguing that the court was “abdicating” its duty to declare equal access to marriage the only suitable remedy.

Interestingly, Chief Justice Jeffery Amestoy, writing the majority opinion, cited the Alaska and Hawaii circumstances in defense of his “civil unions” solution, suggesting that going too far would open the court’s decision up to a political backlash as it had in those states and leave same-sex couples worse off. In my view, this is not an appropriate consideration for a judicial opinion. Judges are supposed to say what the law is, not craft decisions for the specific purpose of avoiding a backlash.

In 2000, the Vermont Legislature responded to the Baker decision by instituting civil unions for same-sex couples, but took the opportunity expressly to limit “marriage” to “a man and a woman” for the first time ever. Civil unions supporters faced a tough election season at the polls, but civil unions endured. In 2009 Vermont’s legislature adopted full marriage equality – the first state to do so by legislation rather than court mandate – with no backlash to speak of.

Massachusetts

Which brings us back to Massachusetts. The Massachusetts case, Goodridge vs. Department of Public Health, was filed shortly after civil unions began in Vermont. The plaintiffs were seven long-established same-sex couples who lived in Massachusetts and had been denied marriage licenses. As in Vermont, the trial judge ruled in favor of the state in 2002. He cited procreation and child-rearing, as well as “tradition,” as “rational” bases for the legislature’s limitation of marriage to one man and one woman. Note that the “rational basis” test applied by the court is a far easier standard to satisfy than the “strict scrutiny” test required by the Hawaii Supreme Court. The case was appealed directly to the Supreme Judicial Court (SJC), with arguments held on March 4, 2003. By mid-November word trickled out that the decision would be coming soon. And that’s why, ten years ago today, my attention was focused on the beautiful John Adams Courthouse in Pemberton Square.

On November 18, 2003, the court issued its opinion (440 Mass. 309). In a 4-3 decision, Chief Justice Margaret Marshall (who, most of us know, fought against apartheid in her native South Africa and later married the great Constitutional scholar Anthony Lewis) wrote that the case turned on whether Massachusetts “may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”

Chief Justice Marshall concluded that the court need not address whether the trial court should have applied “strict scrutiny,” as the Hawaii Supreme Court had suggested was appropriate, because the state’s purported interests in discrimination did not even satisfy “rational basis” review. She demolished the “procreation” argument, writing that “[f]ertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.” Likewise the “optimal setting for child rearing” claim was turned on its head. First, the Chief Justice wrote, allowing same-sex couples to marry did nothing to harm marriage rights for opposite-sex couples. Second, “the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws…It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.”

The Chief Justice paid no attention to arguments that the decision would bring Massachusetts into conflict with other states, writing “We would not presume to dictate how another State should respond to today’s decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution. The genius of our Federal system is that each State’s Constitution has vitality specific to its own traditions, and…each State is free to address difficult issues of individual liberty in the manner its own Constitution demands.”

The majority opinion further noted that constitutional law’s story is “the story of the extension of constitutional rights and protections to people once ignored or excluded.” It continued:

Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

The majority opinion further stated, “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.” The state’s marriage law, as currently written, “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.”The court stayed the implementation of its ruling for 180 days to allow the state legislature to “take such action as it may deem appropriate in light of this opinion.” The 180 days, in my opinion, was no accident: it set a deadline of May 17, 2004, the 50th anniversary of the landmark Brown v. Board of Education decision declaring public school segregation unconstitutional.

In Massachusetts, unlike in the federal courts, the legislature may ask the state courts for an advisory opinion. In this case, it did so, asking the SJC whether a civil unions law, like the one in Vermont, would satisfy the state constitution. Marriage equality advocates had been ready for that one.  Lead attorney Mary Bonauto of the Boston-based Gay and Lesbian Advocates and Defenders (GLAD), which had litigated the Vermont case as well, had emphasized in the Massachusetts litigation the inherent value of marriage itself, in terms of dignity and equality, rather than the practical benefits like preferential tax treatment.

Responding to those arguments, the Massachusetts SJC (by the same 4-3 split) issued its Opinion of the Justices to the Senate (440 Mass. 1201) on February 3, 2004. The court concluded that nothing short of full marriage equality would do: “The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status…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 Massachusetts court had gone where the Vermont court dared not to go. The legislature complied, amending the state marriage statutes to include same-sex couples, and the first same-sex marriages in the United States were performed all across Massachusetts on May 17, 2004. The sky did not fall. God did not punish Massachusetts. Hell, the Red Sox won the World Series that fall for the first time in 86 years that fall.

Developments After Goodridge

That’s not to say there was no backlash. President George W. Bush mentioned the issue in his State of the Union address in January 2004 and in February lent his support to a “Defense of Marriage” amendment to the United States Constitution. Numerous states  placed constitutional amendments to limit marriage to one man and one woman on the ballot; social conservatives came out in droves to support these initiatives, and the issue may have cost Massachusetts’s own John Kerry the presidency in 2004.

There was some degree of backlash here at home too. Then-Governor Romney (his election in the annus horribilius of 2002 is NOT a moment in Massachusetts history I’m proud of, but we usually learn from our mistakes) came out strong against same-sex marriage, saying publicly that the state would be better off with the anti-gay bigot running the South Boston St. Patrick’s Day Parade as Chief Justice of the SJC. He sided with the protestors who came out regularly to the steps of the State House, and those who twice tried to amend our state constitution (a harder thing to do here than in many Western states) to overrule the SJC’s decision.

There are two ways to amend the Massachusetts constitution, and opponents tried each. First, an amendment can pass both houses of the legislature by majority vote in two successive sessions, then must be approved by the people in a referendum. A coalition of hostile and skittish legislators first tried a compromise that amended the state constitution to prohibit same-sex marriage, but allowed civil unions.  It passed the legislature in 2004, but failed in 2005.

Opponents next tried an outright ban on same-sex marriage that did not mention civil unions at all. By collecting the requisite amount of signatures, they lowered the threshold in the legislature to just 25% of the combined houses. Again, it “passed” once but failed on the second go-round in June 2007, by a vote of 45 for and 151 against. In the interim, several legislators who’d fought same-sex marriage were voted out: here, people had seen over two years that the earth did not open up and swallow opposite-sex couples, and the backlash went the other way. Marty Walsh, despite representing a district lukewarm on the issue at best, did heroic work cajoling fellow legislators to vote “no.”

We had other things to tackle, like repealing that 1913 law prohiibiting non-resident couples who would not be allowed to marry in their state of residence from marrying here. You’ll all recall that this law, designed to prevent Massachusetts from becoming a forum of choice for interracial marriages prohibited in Southern states, was used by the Romney administration to restrict same-sex marriages here to Massachusetts residents. But outright repeal of marriage equality has not been an issue here since the second attempted amendment was killed in the legislature in June 2007.

And, you know what, the Red Sox won the World Series AGAIN in 2007. And this year, when the U.S. Supreme Court struck down DOMA’s Section 3 and our Attorney General’s office had taken the lead on challenging it in the courts, the Red Sox won the World Series AGAIN. I’m starting to see a pattern here.

As we all know by now, the tide has turned on this issue. Section 3 of DOMA is gone, and marriage equality is the law not only in Massachusetts, but in Connecticut, Rhode Island, Maine, Vermont, New Hampshire, New York, New Jersey, Delaware, Maryland, the District of Columbia, Illinois, Iowa, Minnesota, California, Washington state, and Hawaii. And two Mexican States, Canada, Iceland, England, Wales, France, Belgium, the Netherlands, Denmark, Norway, Sweden, Spain, Portugal, Australia, New Zealand, South Africa, Argentina, Brazil, and Uruguay. Public opinion moves more in favor, and more jurisdictions adopt marriage equality each year.

The idea of marriage equality may not have been born ten years ago today in Massachusetts, but it took a huge step forward when the Goodridge decision was released. And for that I’m proud. I’m also hopeful that other policy goals that seem unattainable today will be realized sooner than anticipated.