Same-sex couples are constitutionally entitled to marry in Massachusetts

Law Reporter, May 2004

Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

The Massachusetts Supreme Judicial Court held that samesex couples have the same constitutional right to marry as that afforded to heterosexual couples.

Here, seven same-sex couples attempted to get marriage licenses from the city clerk. Every couple was denied a license on the ground that the state did not recognize samesex marriage. The 14 individuals filed suit against the department responsible for giving out the licenses, alleging violations of the state constitution. The trial court dismissed the suit, holding that the constitution does not provide homosexual couples the right to marry.

Reversing, the state high court held that refusing to allow same-sex couples to wed treats them as second-class citizens, which is prohibited by the state constitution. There are hundreds of statutes related to marriage, die court said, and numerous benefits that are available only to married couples. Moreover, the children of married couples have a more stable and economically secure environment and are often better accepted by society.

The court noted that the U.S. Supreme Court has held that the right to marry is "of fundamental importance to all individuals," and that laws may not interfere with such a right. The Court has also held that inherent in the right to marry is the right to marry the person of one's choice, the court said.

Although the department argued strict scrutiny should not be applied because neither a fundamental right nor a suspect class is involved, the court said the department failed to meet even the rational basis test. Thus, the court need not determine whether strict scrutiny is necessary. The department provided three reasons for not allowing same-sex marriages: (1) creating a "favorable setting for procreation;" (2) providing the best situation for child rearing, which the department says is composed of two parents of opposite sexes; and (3) preserving state resources.

Dismissing the first argument, the court said nothing in the law requires couples to promise they intend to procreate as a condition of marrying. The department's second rationale is faulty, the court reasoned, because many samesex couples are already raising children, and the ban only diminishes those children's right to the stability that comes with marriage. Finally, the court determined that the economic status of the state has no rational relationship to banning same-sex marriages.

Without a rational basis, the court found, the ban is merely an attempt to discriminate against homosexual persons because of societal prejudices, which cannot form the basis for discriminating against a whole class of people.

Accordingly, the court remanded, but granted a stay of 180 days to allow the legislature to take action in compliance with the ruling.

Plaintiffs' Counsel

Mary Lisa Bonauto, Boston, Mass.

Gary D. Buseck, New York, N.Y.

Comment: The Massachusetts Supreme Judicial Court recently clarified its ruling at the request of the state legislature. It determined that a bill allowing "civil unions" was not enough, and that only equal rights to "marriage" would suffice. Opinion availabkat http://www.state.ma.us/courts.>For a contrary decision, see Lewis v. Harris, No. MERL-15-03, 2003 WL 23191114. (N.J. Nov. 5,2003). There, the New Jersey Supreme Court held that the state law allowing marriage was meant to be confined to marriages between people of the opposite sex.