Landmark ruling on gay marriage

Massachusetts high court rules that same-sex marriage is a constitutional right and tells the legislature to resolve the issue.

By , Staff writers of The Christian Science Monitor , Staff writers of The Christian Science Monitor

The landmark decision by the Massachusetts Supreme Judicial Court Tuesday went further than any court yet toward legalizing gay marriage in the United States.

But couples eager to make their union official can't start lining up at the courthouse Wednesday. The tribunal stopped short of ordering the state to start issuing marriage licenses. Instead, it ruled the state's denial of gay marriage unconstitutional - and gave the legislature 180 days to resolve the issue. This marks the first time a high court has ruled that civil marriage between a same-sex couple is a state constitutional right.

The ruling means that the cultural divide over one of the most contentious issues in America will likely only deepen from here. Gay rights activists hope it will bolster their cause in other parts of the country, while conservative groups are equally determined to use it to solidify a growing backlash. "This is the preeminent wedge issue," says independent pollster John Zogby. Now it has even greater "potential to be a wedge issue in 2004."

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In its 4-to-3 ruling, the court held that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."

Unlike court decisions in Hawaii and Vermont, the Massachusetts tribunal didn't send the decision back to a trial court or explicitly allow the legislature to create its own solution. Instead, the court gave legislators and state regulators 180 days to adapt state law to the more expansive definition of marriage set out in its decision. "It's a victory" for same-sex marriage advocates, says Kate Silbaugh, a family-law professor at Boston University. "This is the most expansive decision there has been."

The court redefines marriage as the voluntary union between two persons - a definition adopted earlier by a court in the Canadian province of Ontario. The ruling emphasizes the "enormous private and social advantages" that only marriage brings.

As a result, Ms. Silbaugh, says the Massachusetts high court is not likely to accept civil union as an acceptable alternative if offered by the legislature.

Only a state constitutional amendment redefining marriage as between a man and a woman could block the court's decision. But the earliest that could get on the ballot in Massachusetts would be 2006.

Reaction to the court's ruling was predictably mixed. Some gay rights advocates were disappointed the decision didn't immediately allow same-sex couples to get married. But many still considered it an important step forward. "The Massachusetts supreme court today made history," says Winnie Stachelberg of the Human Rights Campaign, a gay-rights group.

Unlike the Vermont decision in 1999, in which the court told the legislature to find a solution and which ultimately led to the 2000 civil-union law, the Massachusetts court "made it fairly clear that anything short of civil marriage would violate the equal-protection clause of the Massachusetts constitution."

The ruling is likely to thrust the explosive gay-marriage issue even more to the forefront in next year's election. "It could very well be that the ultimate decider in the election is something like the Ten Commandments or gay civil marriages," says Mr. Zogby.

In fact, some Republicans are already heralding the decision as a political victory. "The fact that this is the headline in the news is something you can't pay enough for if you're Bush," says one senior Republican Senate aide. "It raises the profile of a controversial social issue that Republicans believe will work to their advantage, particularly against a certain former governor of Vermont. This is turf the Republicans feel comfortable playing on."

Family-values groups are similarly optimistic. "This will hopefully serve as a wakeup call," says Bill Murray of the Family Research Council in Washington. "There are quite a few elected officials who said they were waiting to see how the Massachusetts court decides" before they acted on the proposed amendment to the US Constitution to ban gay marriage. "Because they have now ruled, I think we're going to see action."

For all the symbolic and legal importance of the Massachusetts decision, it just reflects one state's views. And a marriage license there may not mean much for Massachusetts couples who move to, say, Alabama, or who try to file federal taxes as a married couple. The federal Defense of Marriage Act prohibits the legal recognition of same-sex couples on a national level, and 37 states have passed their own acts barring recognition of gay marriage.

"In some sense, it will be the same as the Vermont civil unions in that you'll only be sure of your status in the state of Massachusetts," says E.J. Graff, author of "What is Marriage for? The Strange Social History of Our Most Intimate Institution." "There's not going to be any test of recognition until someone has a crisis."

But, she stresses, the fact that it is marriage still has significance. "Parents can say to their children, we're married. Not that we're 'civil-unionized,' and now I have to explain to you what that means," says David Buckel of the Marriage Project at Lambda Legal. "Folks will be able to see that the world does not crumble..."

In many ways, the Massachusetts decision picks up momentum that began less than five months ago with a US Supreme Court ruling legalizing gay sex. "This is a major moment in American history," says David Garrow, a legal historian at Emory University. "This is the sexual and gay rights equivalent of the Civil Rights Act and the Voting Rights Act all rolled into one."

Staff writers Linda Feldmann and Liz Marlantes contributed to this report.

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