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  • Sasha Issenberg

February 3, 2004: Massachusetts court dismisses civil-union compromise

On November 17, 2003, the Supreme Judicial Court of Massachusetts ruled that excluding same-sex couples from “civil marriage” violated the state’s constitutional guarantees, becoming the third state court to make such a determination. But unlike previous courts in Hawaii and Vermont, Massachusetts’s judges were direct and immediate about the only acceptable remedy: town clerks would have to permit gays and lesbians to apply for marriage licenses. Nevertheless, the court ruled to stay the entry of judgment for 180 days “to permit the Legislature to take such action as it may deem appropriate in light of this opinion,” as Chief Justice Margaret H. Marshall wrote for the majority in Goodridge v. Dept. of Health.

Opponents of the decision would use that period for various efforts to derail the seemingly inevitable arrival of same-sex marriage in Massachusetts. Their most ambitious was a proposal to amend the state constitution to include a provision restricting marriage to opposite-sex couples. (They had previously tried and failed to enact such a measure, and would continue in vain to do so until June 2007.) But first they offered the state’s top court a compromise.

Governor Mitt Romney, an avowed opponent of gay marriage, worked with lawmakers to draft what he called a “civil-union-type provision” that would extend same-sex couples the benefits and protections of marriage under a different name — an alternative that the Vermont legislature had found sufficient to satisfy its demand for equal treatment under the law. On December 11, 2003, the Massachusetts senate requested an advisory opinion from the supreme judicial court. If the judges signaled their approval of the civil-unions compromise, it was likely that legislative majorities would rally around it, and send such a bill to Romney for his signature.

On February 3, the court returned with its opinion, rejecting a civil-unions law as problematic for the same reasons a discriminatory marriage statue had been. “The question the court considered in Goodridge was not only whether it was proper to withhold tangible benefits from same-sex couples, but also whether it was constitutional to create a separate class of citizens by status discrimination, and withhold from that class the right to participate in the institution of civil marriage, along with its concomitant tangible and intangible protections, benefits, rights, and responsibilities” wrote a four-judge majority again led by Marshall. “Maintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.”

Romney would decry the decision, writing in the Wall Street Journal two days later that the decision was “wrongly decided and is deeply mistaken.” But in the guise of advice to the nation on how to avoid Massachusetts’s predicament, Romney’s op-ed amounted to a quiet concession of defeat. “As governor, it is my job to carry out the laws,” he wrote. While some procedural questions remained, it was clear that nothing would stop same-sex couples from being able to legally marry for the first time in the United States, just three months later.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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