How Radical Is the Gay-Marriage Ruling?Why the Massachusetts decision breaks new ground.
By Josh LevinPosted Tuesday, Nov. 18, 2003, at 8:09 PM ET
Earlier today, the Supreme Judicial Court of Massachusetts ruled in a 4-3 decision that same-sex couples have the right to marry under the state's constitution; gay-rights advocates heralded the decision for going a "significant step beyond" earlier U.S. rulings. How does this outcome differ from gay-marriage decisions handed down in Vermont, Hawaii, Alaska, and Ontario?
Related in Slate
For a primer on why Canadian same-sex marriages aren't recognized in the United States—and why future Massachusetts marriages probably wouldn't be valid in Mississippi—read
this Explainer.
Courts in Massachusetts, Ontario, and Vermont all agreed that denying gay couples marriage licenses had no rational basis, meaning that a ban on gay marriage wasn't sufficiently connected to legitimate state goals. All three rulings also stated that withholding the benefits and obligations that come along with marriage denies gay couples equal protection under the relevant state constitutions and Canada's Charter of Rights and Freedoms.
Where the courts differ is in their proposals for an appropriate remedy.
In June 2003, Ontario's highest court ruled that gay couples in the province be allowed to receive marriage licenses immediately.
In 1999, the Vermont Supreme Court declared that the state was "constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage," but left it to the state legislature to decide how to best remedy the situation. The Vermont legislature passed a bill setting up a parallel institution, the civil union, which conferred the same basic rights and benefits as marriage. The bill was signed in 2000 by Gov. Howard Dean.
The Massachusetts court's decision lies somewhere in between. While the ruling does state that preventing gay couples from participating in the institution of marriage violates the state's constitution, it does not require that gay couples be allowed to receive marriage licenses immediately. Instead, the court is staying judgment for 180 days to allow the state legislature to come up with a remedy.
The options before the state legislature include: approving same-sex marriage; getting rid of civil marriage altogether and replacing it with a type of civil union available to every couple on an equal basis; or doing nothing, in which case on the 181st day, the Massachusetts Superior Court would be required to issue an order implementing the higher court's decision and allowing gay couples to obtain marriage licenses.
It seems that a civil union bill similar to Vermont's wouldn't fly, as the court ruled that it was discriminatory to prevent a same-sex couple from obtaining a marriage license. It is possible that the legislature could pass some kind of civil union bill, but it remains to be seen if that would pass muster with the court.
In 1998, voters in both Hawaii and Alaska approved constitutional amendments limiting the institution of marriage to opposite-sex couples, rendering moot rulings in both states requiring the state to offer legitimate reasons that same-sex couples not be allowed to marry. In Massachusetts, however, two consecutive legislatures must approve any potential constitutional amendment before it can be presented to voters for ratification, so the soonest it could be put on a ballot is November 2006.
Next question?
Explainer thanks Evan Wolfson of Freedom to Marry, Professor Jennifer Brown of Quinnipiac Law School and Professor William Eskridge, Jr. of Yale Law School.
Josh Levin is a Slate senior editor. You can e-mail him at and follow him on Twitter. Illustration by Robert Neubecker.
Remarks from the Fray:
I favor civil unions for homosexual folk, or at least some legislative initiative that gives homosexual couples the chance to get key things that characterize a spousal relationship. I oppose calling it "marriage" because that needlessly offends a lot of people and thus is counterproductive, but I think homosexuals couples are as entitled to the benefits as heterosexual couples. Obviously, it is moronic to even suspect that homosexual unions could in any way threaten "the family."
Still, I hate this ruling (if not its result). For starters, it looks like bad law. While I recognize the unfairness, the notion that there is no rational basis for acknowledging only hetero marriages is severely strained -- I'm sorry, but just because gays can (sometimes) adopt, and just because some heterosexual couples choose to not have kids or can't have kids, that does not make the distinction irrational. Homosexual couples simply cannot procreate, and procreation is what underlies most of the marriage concept as a justification for different treatment. This is a classic case of where the legislature should make the call, as a matter of social justice and as a matter of judicial credibility.
And respect for the courts and accepting unpopular decisions is what takes us to our main gripe, which is that this will launch an ever-intensified anti-gay assault at a time when homosexual rights were on the undeniable march. It threatens that march, threatens even to reverse it somewhat. It also gives our current "President" a dumb-ass issue to demagogue and almost surely puts more votes in his favor come November 2004.
--BigIron
(To reply, click here)
What I find interesting about the ruling is how clearly it spells out that the "marriage" it talks about is a civil one. It does not require any religions to perform gay marriages. Most people do not realize that marriage is more a civil ceremony than anything else, and the religious ceremony just adds to it…
--WriterRob
(To reply, click here)
All this yelling about the MA court ruling in favour of same-sex marriage begs the following questions. First, do laws regulating civil marriage matter when half of conventional marriages end in divorce and increasing numbers of people cohabit?
What about the increasing numbers of never-married adults (the odds are that if one is not married by age 40 that person never will)? There is no law mandating people MUST marry. There is no enforcement of laws criminalizing private, non-marital sex among consenting adults.
Another question. Why such concern about marriage and families when one-third of all children are born out-of-wedlock (one-half of black children)? . Marriage supposedly exists to provide a socially approved outlet for sexual activity (and caring for children that result from sex).
I ask these questions because social conservatives seem hypocritical. National and state "DOMA" laws and a constitutional amendment defining marriage do not address the underlying issue. The issue is the ability of people to have non-marital sex, either casually or in some committed relationship…
--booktechie
(To reply, click here)
Marriage is a union founded in God. If a union isn't founded in God then it is only a civil union. If people who think they are gay desire to be married by God rather than simply by a man made union, why do they oppose what God says is good? Marriage of a man and woman represents the union between God and man, Jesus and the Bride. The whole purpose of marriage is for man to gain a greater understanding of his relationship to his Savior. How is a marriage between a man and a man or a woman and a woman representative of our relationship with God? It isn't. Those people who think they are gay and want to marry have no apparent desire to be submissive to God. Nevertheless, I have them as friends and coworkers and will continue to pray that they will experience the unbelievable love of God and the freedom than ensues.
--TruthSeeker
(To reply, click here)
(11/19)
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Remarks from the Fray:
I favor civil unions for homosexual folk, or at least some legislative initiative that gives homosexual couples the chance to get key things that characterize a spousal relationship. I oppose calling it "marriage" because that needlessly offends a lot of people and thus is counterproductive, but I think homosexuals couples are as entitled to the benefits as heterosexual couples. Obviously, it is moronic to even suspect that homosexual unions could in any way threaten "the family."
Still, I hate this ruling (if not its result). For starters, it looks like bad law. While I recognize the unfairness, the notion that there is no rational basis for acknowledging only hetero marriages is severely strained -- I'm sorry, but just because gays can (sometimes) adopt, and just because some heterosexual couples choose to not have kids or can't have kids, that does not make the distinction irrational. Homosexual couples simply cannot procreate, and procreation is what underlies most of the marriage concept as a justification for different treatment. This is a classic case of where the legislature should make the call, as a matter of social justice and as a matter of judicial credibility.
And respect for the courts and accepting unpopular decisions is what takes us to our main gripe, which is that this will launch an ever-intensified anti-gay assault at a time when homosexual rights were on the undeniable march. It threatens that march, threatens even to reverse it somewhat. It also gives our current "President" a dumb-ass issue to demagogue and almost surely puts more votes in his favor come November 2004.
--BigIron
(To reply, click here)
What I find interesting about the ruling is how clearly it spells out that the "marriage" it talks about is a civil one. It does not require any religions to perform gay marriages. Most people do not realize that marriage is more a civil ceremony than anything else, and the religious ceremony just adds to it…
--WriterRob
(To reply, click here)
All this yelling about the MA court ruling in favour of same-sex marriage begs the following questions. First, do laws regulating civil marriage matter when half of conventional marriages end in divorce and increasing numbers of people cohabit?
What about the increasing numbers of never-married adults (the odds are that if one is not married by age 40 that person never will)? There is no law mandating people MUST marry. There is no enforcement of laws criminalizing private, non-marital sex among consenting adults.
Another question. Why such concern about marriage and families when one-third of all children are born out-of-wedlock (one-half of black children)? . Marriage supposedly exists to provide a socially approved outlet for sexual activity (and caring for children that result from sex).
I ask these questions because social conservatives seem hypocritical. National and state "DOMA" laws and a constitutional amendment defining marriage do not address the underlying issue. The issue is the ability of people to have non-marital sex, either casually or in some committed relationship…
--booktechie
(To reply, click here)
Marriage is a union founded in God. If a union isn't founded in God then it is only a civil union. If people who think they are gay desire to be married by God rather than simply by a man made union, why do they oppose what God says is good? Marriage of a man and woman represents the union between God and man, Jesus and the Bride. The whole purpose of marriage is for man to gain a greater understanding of his relationship to his Savior. How is a marriage between a man and a man or a woman and a woman representative of our relationship with God? It isn't. Those people who think they are gay and want to marry have no apparent desire to be submissive to God. Nevertheless, I have them as friends and coworkers and will continue to pray that they will experience the unbelievable love of God and the freedom than ensues.
--TruthSeeker
(To reply, click here)
(11/19)