First published on Nov. 26, 2003, in the Chicago Free Press.
In an opinion issued Nov. 18, Massachusetts' Supreme Judicial Court struck down the state's denial of civil marriage to people of the same sex, becoming the latest, but no doubt not the last state supreme court to affirm the full civil equality of gays and lesbians before the institutions of the law:
"The question before us is whether...the commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. ...(The state) has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."
The important point to notice at the outset is the court did not assume that the seven same-sex couples who were plaintiffs had to prove they had a specific right to civil marriage. Instead the court began with the assumption that people have a right to marry and the state had the burden of defending its prohibition of same-sex marriage.
In doing so the Massachusetts court followed the lead of the U.S. Supreme Court's 2003 Lawrence decision decriminalizing sodomy, where the U.S. court said, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct," and placed the burden on Texas to justify its sodomy law.
But the Massachusetts court went further to adopt a fundamentally libertarian approach to government and law, affirming that people have, or should have, a fundamental right to do as they wish in the absence of some rational basis for prohibiting them.
"The Massachusetts Constitution protects matters of personal liberty against government incursion. ... The individual liberty and equality safeguards of the Massachusetts Constitution protect both 'freedom from' unwarranted government intrusion into protected spheres of life and 'freedom to' partake in benefits (such as civil marriage) created by the state for the common good."
Justice Greaney put it more tersely in a concurring opinion: "The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference."
The court then asked whether - absent persuasive reasons otherwise - the freedom to marry included freedom to marry a same-sex partner and concluded that it did: "The liberty interest in choosing whether and whom to marry would be hollow if the commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage."
Or as Justice Greaney put it, "The right to marry...is essentially vitiated if one is denied the right to marry a person of one's choice. ...The equal protection infirmity at work here is strikingly similar to ... the invidious discrimination perpetuated by Virginia's anti-miscegenation laws" struck down by the U.S. Supreme Court in Loving vs. Virginia.
The court then examined the state's arguments for prohibiting same-sex marriage and found them either factually incorrect or contrary to existing public policy.
The state first argued that the primary purpose of marriage is procreation. "This is incorrect," the court said flatly, noting that the state does not require opposite sex couples to have the ability or intention to conceive children.
Instead, the court patiently instructed the state, "it is the exclusive and permanent COMMITMENT of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage" (emphasis added).
The state argued second that limiting marriage to opposite-sex couples "ensures that children are raised in the 'optimal' setting." But the court pointed out that the state already recognized and accepted many alternative child-rearing configurations and the state had already acknowledged that same-sex couples may be "excellent" parents.
For that matter, the court added, excluding same-sex couples from civil marriage ran counter to the state's vaunted concern for children by preventing children raised by same-sex couples from enjoying the assurance of a stable and assured family structure.
The state argued third that prohibiting gay marriage conserved state and private financial resources since same-sex couples were less financially dependent on each other and so had less need of the tax advantages of marriage or private health plans that include spouses.
But the court pointed out that was contrary to current public policy: "(M)arriage laws do not condition the receipt of public or private financial benefits to married individuals on a demonstration of financial dependence on each other."
And so, the court repeated with evident exasperation, that the state "has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. ...It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex."
In sum, the court said, the absence of "any reasonable relationship" between a same-sex marriage ban and public health, safety or general welfare, "suggests that the marriage restriction is rooted in persistent prejudices against persons who are...homosexual."