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A RESPONSE TO THE MASSACHUSETTS SAME-SEX MARRIAGE RULING November 19, 2003 Liberty Counsel is a nationwide civil liberties education and legal defense organization which defends the traditional family. In this news release, Liberty Counsel President and General Counsel, Mathew D. Staver describes Liberty Counsel’s comprehensive plan to preserve traditional marriage in America. The first section of this release is an in-depth analysis of the case, including the concurring and dissenting opinions. The second section gives the strategy that Liberty Counsel will immediately pursue to combat the effect of this case. The final section provides quotations from Mathew Staver regarding Liberty Counsel’s response. GOODRIDGE
v. DEP’T OF PUBLIC HEALTH Majority Opinion: In a 4-3 decision, the Massachusetts Supreme Judicial Court redefined the common law definition of marriage to mean “the voluntary union of two persons as spouses, to the exclusion of all others.” This definition allows same-sex couples to be married the same way that opposite sex couples can marry. The majority’s analysis started by reaffirming that the definition of marriage has always been “the legal union of a man and woman as husband and wife” and that marriage has never had a different meaning in Massachusetts law. The Court also recognized that “civil marriage enhances the welfare of the community. It is a social institution of the highest importance. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones.” The Court noted that marriage is a civil right and that, “Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” After cataloging all of the rights and benefits that flow from marriage, the Court stated that being excluded from marriage excludes one from the “full range of human experience and deni[es] full protection of the laws for one’s avowed commitment to an intimate and lasting human relationship.” The Court stated that “the right to marry means little if it does not include the right to marry the person of one’s choice...” and also noted that, “Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family - these are among the most basic of every individual’s liberty and due process rights.” The Court analyzed the marriage laws under a rational basis standard and required the State to identify whether the law that only allowed marriage between one man and one woman was supported by a rational basis. The Court rejected the State’s interests of “providing a favorable setting for procreation,” “ensuring the optimal setting for child-rearing,” and “preserving scarce State and private financial resources.” With respect to the interest of providing a favorable setting for procreation, the Court held that the ability to beget children was not the determining factor of marriage. The Court held that the State’s attempt to protect marriage to those who could procreate “confers an unofficial 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.” With regard to the State’s asserted interest of protecting the welfare of children, the Court held that instead of protecting children, the law only allowing marriage between one man and one woman “penalize[s] children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.” After holding that there was no rational basis for confining marriage to between one man and one woman, the Court noted that, “Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.” The Court felt that “civil marriage is an evolving paradigm” and that, “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.” The Court fashioned a remedy by redefining marriage to no longer be only between one man and one woman. Finally, the Court stayed its judgment for 180 days to “permit the Legislature to take such action as it may deem appropriate in light of this opinion.” Justice Greaney’s Concurrence: Justice Greaney in his concurrence with the majority’s opinion stated, “To define the institution of marriage by the characteristics of those to whom it has always been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide. This case calls for a higher level of legal analysis.” After noting that many will disagree with the Court’s decision, Justice Greaney expressed a “liberating” hope that people who do not agree with the decision will nonetheless accept it. He then went on to state that, “Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance and respect. We should do so because it is the right thing to do.” Justice Spina’s Dissent: Justice Spina dissented, stating, “Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent.” Justice Spina recognized that the longstanding history of marriage is that it is between one man and one woman, and if that is to change to create new marital rights, then it must be done through the legislature and not the courts. He stated, “Courts have authority to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes. He noted that the current marriage laws do not discriminate based on sex, nor sexual orientation, as all persons are able to marry. What the Plaintiffs wanted to do in this case was not to gain access to marriage, but to change the institution of marriage itself. He cautioned that if the judiciary became involved in social issues by creating rights, it would usurp the democratic process. “By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Justice Sosman’s Dissent: Justice Sosman’s dissent focused on whether or not the Legislature’s rationale behind the statutory scheme satisfies the rational basis standard. “Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses. Reduced to its essence, the court’s opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples.” Justice Sosman accurately explained that “It is not, however, our assessment that matters. Conspicuously absent from the court’s opinion today is any acknowledgment that the attempts at scientific study of the ramification of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results.” "Shorn of these emotion-laden invocations, the opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach. For example, if the issue were government subsidies and tax benefits promoting use of an established technology for energy efficient heating, the court would find no equal protection or due process violation in the Legislature’s decision not to grant the same benefits to an inventor or manufacturer of some new, alternative technology who did not yet have sufficient data to prove that the new technology was just as good as the established technology." Justice Cordy’s Dissent: Justice Cordy’s main argument is that the decision of whether to allow same-sex couples to marry should be left to the Legislature. “There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships. Deliberate consideration of, and incremental responses to rapidly evolving scientific and social understanding is the norm of the political process – that it may seem painfully slow to those who are already persuaded by the arguments in favor of change is not a sufficient basis to conclude that the processes are constitutionally infirm. . . . The Legislature is the appropriate branch, both constitutionally and practically, to consider and respond to it. It is not enough that we as Justices might be personally of the view that we have learned enough to decide what is best. So long as the question is at all debatable, it must be the Legislature that decides.” Justice Cordy thoroughly and methodically pointed out the legal infirmities of each portion of the majority’s decision. He explained that limiting marriage to the union of one man and one woman does not impair the exercise of a fundamental right. Each of the United States Supreme Court marriage cases was based on the underlying interest of every individual in procreation. He pointed out that limiting marriage to opposite-sex couples “does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. The plaintiffs’ right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.” The majority’s decision “has transmuted the ‘right’ to marry into a right to change the institution of marriage itself.” Justice Cordy similarly rejected plaintiffs’ argument that prohibiting same-sex marriage violated the state’s Equal Rights Amendment. At the outset, he pointed out that marriage is open to all, regardless of sex, and therefore does not implicate the Equal Rights Amendment. He then quoted a report commissioned by the Governor which concluded that an “equal rights amendment will have no effect upon the allowance or denial of homosexual marriages. The Equal Rights Amendment is not concerned with the relationship of two persons of the same sex.” Justice Cordy then concluded that the legislative determination to limit marriage to a man and a woman satisfies the rational basis standard. He emphasized that the court was obligated to presume the statute’s validity and to make all rational inferences in favor of the legislation. “It is not the court’s function to launch an inquiry to resolve a debate which has already been settled in the legislative forum. It is the judge’s duty to give effect to the will of the people as expressed in the statute by their representative body. It is in this way that the doctrine of separation of powers is given meaning.” “The time tested wisdom of the separation of powers requires courts to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.” “Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved. . . .That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support.” “The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. . . . The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.” Justice Cordy also criticized the majority as brushing aside the argument that same-sex marriage will diminish the validity or dignity of opposite-sex marriage. “Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage.” He concluded his opinion by stating that this case “is not about government intrusions into matters of personal liberty. It is not about the rights of same-sex couples to choose to live together, or to be intimate with each other, or to adopt and raise children together. It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them. . . . [T]he issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.” LIBERTY COUNSEL’S RESPONSE AND STRATEGY Japanese naval commander Isoroku Yamamoto is credited with saying, after the attack on Pearl Harbor, "I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve." Liberty Counsel believes that the Massachusetts court’s decision will be remembered for awakening the sleeping giant of mainstream America and will strengthen the resolve of those fighting to preserve traditional marriage. In Massachusetts Our first response will focus on Massachusetts. The decision is stayed for 180 days or 6 months. During this time the court expects the legislature to draft a statute that re-writes the law to include same-sex marriage. However, during this time the legislature could instead convene for the purpose of amending the state constitution to recognize marriage only between one man and one woman. The state’s Speaker of the House, Tom Finneran, has already endorsed such an amendment. His address is State House, Room 356, Boston, MA 02133. His phone number is 617-722-2500, and comments can be sent to him via his online comment form at http://www.tomfinneran.com/contact/form.html. The Senate President is Robert E. Travaglini, State House, Room 330, Boston, MA 02133. His phone number is 617-722-1500 and his email address is RTravagl@senate.state.ma.us. A constitutional amendment is also backed by Governor Mitt Romney, a Republican. The Massachusetts legislature will convene on February 11, 2004 at 2 p.m. to discuss a constitutional amendment. The Massachusetts Constitution can be amended by way of legislative amendment. A constitutional amendment requires two consecutive Legislatures to pass the proposed amendment by a majority vote of the senate and a two-thirds vote of the house before it will be submitted to a vote of the people. Unfortunately, under that procedure, the earliest the people of Massachusetts could vote on the proposed amendment would be 2006. In The Other 49 States And Territories Currently 38 states have express statutes banning same-sex marriage. See Ala. Code § 30-1-19; Alaska Stat. § 25.05.013; Ariz. Rev. Stat. § 25-101; Ark. Code § 9-11-107, 109 and 208; Cal. Fam. Code § 308.5; Colo. Rev. Stat. § 14-2-104; Del. Code tit. 13 § 101; Fla. Stat. § 741.212; Ga. Code § 19-3-3.1; Haw. Rev. Stat. § 572-1, 1-3 and 1.6; Idaho Code § 32-209; 750 Ill. Comp. Stat. § 5/212 and 5/213.1; Ind. Code § 31-11-1-1; Iowa Code § 595.2; Kan. Stat. § 23-101; Ky. Rev. Stat. § 402.020, 040 and 045; La. Civ. Code Art. 89 and 3520; La. Rev. Stat. § 9:272, 273 and 275; Me. Rev. Stat. tit. 19-A § 701; Md. Code Fam. § 2-201; Mich. Comp. Laws § 555.1 and 271; Minn. Stat. § 517.01 and .03; Miss. Code § 93-1.1; Mo. Rev. Stat. § 451.022; Mont. Code § 40-1-401; Nev. Rev. Stat. § 122.020; N.H. Rev. Stat.§ 457:1-2; N.C. Gen. Stat. § 51-1.2; N.D. Cent. Code § 14-03-01; Okla. Stat. tit. 43 § 3.1; 23 Pa. Const. Stat. § 1102 and 1704; S.C. Code § 20-1-15; S.D. Codified Laws § 25-1-1and 1-38; Tenn. Code § 36-3-113; Tex. Fam. Code § 2.001; Utah Code § 30-1-2; Va. Code § 20-45.2; Wash. Rev. Code § 26.04.010 and 020; W. Va. Code § 48-2-104 and 603. Several states have already addressed same-sex marriage by referenda. Hawaii in 1998 amended its constitution to provide that marriage is the sole province of the legislature. See Haw. Const. art. 1, § 23. Referenda by Alaska, Nebraska and California in 1998 and 2000 also banned same-sex marriage. See Alaska Const. art. 1 § 25; Neb. Const. art. I, § 29; Cal. Fam. Code § 308.5. Other states have court decisions banning same-sex marriage. See, e.g., Arizona: Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3rd 451 (Ariz. App. 2003) (no fundamental right to same-sex marriage); Connecticut: Rosengarten v. Downes, 802 A.2d 170 (Conn. App. Ct.), cert. granted in part but dismissing case as moot upon death of the party, 806 A.2d 1066 (Conn. 2002) (a Vermont civil union is not “marriage” recognized under this state because the union was not entered into between one man and one woman); District of Columbia: Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) (marriage statute prohibited clerk from issuing license to same-sex couple and same-sex marriage is not a fundamental right protected by the Due Process Clause); Indiana: Morrison v. O’Bannon, No. 49D11-0208-PL-001415 (Marion Co. Sup. Court May 7, 2003) (dismissing challenge to state’s ban on same-sex marriage) New Jersey: Lewis, et al. v. Harris, MER-L-15-03 (Sup. Ct. N.J. Nov. 5, 2003) (dismissing suit brought by seven same-sex couples seeking right to marry); New York: Anonymous v. Anonymous, 325 N.Y.S.2d 499 (N.Y App. Div. 1971) (a marriage between two males was a nullity notwithstanding that “husband” believed “wife” was a female at the time of the ceremony, and notwithstanding that “she” had subsequent sex surgery); Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996) (“same-sex marriage ... is not presently recognized under the laws of any state of the Union”, the “long tradition of marriage, understood as the union of male and female, testifies to a contrary political, cultural, religious and legal consensus [opposed to same-sex marriage] concluding that New York does not recognize or authorize same-sex marriage and that the City Clerk correctly refused to issue the license.”); In re Estate of Cooper, 564 N.Y.S.2d 684, 688 (N.Y. Fam. Ct. 1990) (“the state has a compelling interest in fostering the traditional institution of marriage (whether based on self-preservation, procreation, or nurturing and keeping alive the concept of marriage and family as a basic fabric of our society), as old and as fundamental as our entire civilization, which institution is deeply rooted and long established in firm and rich societal values” and thus same-sex marriage is not authorized); Ohio: In re Bonfield, 780 N.E.2d 241 (Ohio 2002) (cohabiting same-sex partner of biological mother was not a “parent”); In re Ladrach, 513 N.E.2d 828 (Probate Court 1987) (“There is no authority in Ohio for the issuance of a marriage license to consummate a marriage between a post-operative male-to-female transsexual person and a male person”). Those states which don’t have Defense of Marriage Laws should quickly adopt such a law. Florida’s version is a good sample for other states, and provides:
In
The Nation Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. Mathew
D. Staver, President and General Counsel of Liberty Counsel, commented, “This
decision will serve as a wakeup call to the majority of Americans who believe
in traditional marriage and oppose same-sex unions. Although today’s
decision involves marriages only within the state of Massachusetts, homosexual
advocacy groups will seize this case as an opportunity to challenge other
state’s prohibitions against same-sex marriage and to challenge state
laws that prohibit individual states from recognizing same-sex marriages from
other states. Today’s decision should galvanize and reinvigorate the
majority of Americans who believe in traditional marriage but have ignored
the radical agenda of the same-sex marriage movement. The goal of the radical
homosexual agenda is to eliminate any and all laws that uphold traditional
family values. Liberty Counsel is involved in many cases throughout the country
against those who seek to undermine the traditional family. Now is the time
for Americans to join together and take a stand for what they believe in.
Without a strong stand of support for traditional marriage, Massachusetts
will be the first domino to fall in a string of states legalizing same-sex
marriage.” ###
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the Court's Opinion Here |
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