Talk:Same-sex marriage in Massachusetts
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Shouldn't this be at Same-sex marriage in the United States? Dysprosia 23:10, 17 May 2004 (UTC)
This doesn't seem to have been updated lately; is there no further data since the first group went through? Radagast 20:11, Dec 1, 2004 (UTC)
(In reference to first paragraph) Wasn't Hawaii the first state to legalize gay marriage? Psy Guy 17:43, 29 July 2005 (UTC)
Since 2004, Massachusetts has updated its laws to eliminate the three day waiting period for marriage licenses. Info lover 21:11, 12 October 2005 (UTC)
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[edit] Recognition of foreign same-sex marriages?
Does Massachusetts recognize marriages of same-sex couples performed in other jurisdictions - most notably Canada, but also the Netherlands, etc? Has this issue come up yet? --thirty-seven 06:15, 20 May 2006 (UTC)
- I haven't heard of any cases, but the Massachusetts Supreme Judicial Court was emphatic that any difference in treatment of same-sex couples vs. mixed sex couples would be unconstitutional, so it's hard to imagine that those marriages would not be recognized in Massachusetts at this time. A perhaps more interesting question is what the status of such marriages would be in other U.S. states, particularly those that have not passed anti-gay marriage legislation, and in the E.U. Are their any treaties in force on reciprocal recognition of marriages, etc.?--agr 19:46, 23 May 2006 (UTC)
[edit] Recognition of civil unions/domestic partnerships elsewhere?
Has any precedent been set in Mass. as to how couples who have entered into civil unions in Vermont/Connecticut or Domestic Partnerships in California (all of which have the same privledges and responsibilities as marriage in the eyes of those states) are treated if they move or travel to Mass.? Would a Vermont couple who had been "unionized" need to have a marraige ceremony in Massachusetts to get marriage benefits? Conversely, would a married same-sex couple from Mass. be automatically partnered/unionized in those other states? --Jfruh (talk) 20:15, 3 June 2006 (UTC)
[edit] Update
I changed the lead to actually explain how gay marriage became legal in Mass. The old article just assumed people already knew. I also standardized the references and clarified the Feb. 4 timeline entry to better address the ultimate relevant issue (it's also a simpler interpretation). Apparently, the article was wrong about the first married couple, so I'm changing that too (with a source of course). I've brought the timeline up to date (as far as I could tell) as well. Superm401 - Talk 01:07, 6 June 2006 (UTC)
This description is entirely inaccurate. Gay marriage did NOT become legal in the manner described. The court specified that the original marriage law banned homosexuals from marrying, but the court did not strike the law, nor did they write in Goodridge that the decision was self-enacting in 180 days. Rather the Supreme Judicial Court gave the Massachusetts Legislature 180 days in which to act following its November 18, 2003 ruling. The Legislature did NOT act. Gay marriages began in MA as the result of an order by Gov. Mitt Romney.
The description is accurate. In Goodrich the court stated that the Commonwealth had "failed to identify any constitutionally adequate reason," why gays should not marry. It also stated that Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." The court stayed the entry of its judgement 180 days to allow the legislatue to rectify the situation. Your suggestion that it was "assumed" that the legislature would act to change the marriage laws is wrong. Since it was ruled that it is "unconstitutional" to ban gays the right to marry, the only way to change this scenario is with a constitutional amendment. Constituional amendments must be approved in two consecutive "Constituional Conventions" in Massachusetts before they are voted on by the people. The earliest an ammendment could have gone on the ballot would have been in 2006. Given this time table, it was not possible for the legislature to address the issue in the 180 day time period, even if they wanted to (The general court is realtively liberal and the majority of its members approve of same sex marriage). The Court knew this to be the case. Since the legislature could not act, gay marraige became legal once the 180 day stay of the SJC judgement expired. At that point it would be unconstitional for the Commonwealh to deny same sex partners a marriage license because of the court's ruling, not because of Romney's actions to comply with the court's ruling (read language above).--EnsignSOS 16:31, 25 November 2006 (UTC)
Sorry dude, the description in wikipedia right now IS inaccurate. The Massachusetts Constitution, which gives the court the right to exist in the first place is very clear in Article X saying, "The people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." That means the court cannot legislate from the bench as EnsignSOS is suggesting they can. The separation of powers provisions of the Constitution specifically BAN the court from making or changing laws--that's why it's the purview of the Legislature. Is Wikipedia now rewriting how democracy works? Re-read Goodridge and the Constitution--the court specifically said in Goodridge they were NOT striking the law. That previous law is still on the books. If you're not convinced, then read the following:
1) Immediately after the Goodridge decision, on November 18, 2003, the Globe, Fox News, and other publications reported that the legislature had six months to change the law to allow gay couples to marry.
"Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said the only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period."
http://www.foxnews.com/story/0,2933,103399,00.html
http://www.cnn.com/2003/LAW/11/18/samesex.marriage.ruling/
2) By April 16, 2004, nothing had happened and Governor Romney publicly agreed there were no laws in place on, as did a senior leader of the Massachusetts Senate. http://www.boston.com/news/local/articles/2004/04/16/romney_seeks_authority_to_delay_same_sex_marriage/
But Romney said the court's ruling, and the possibility that voters will overturn it in 2006, raise several legal questions that make the situation extremely confusing. He placed the blame for the confusion on the Legislature, which has yet to follow a directive from the SJC to change the state's marriage laws to reflect the legalization of same-sex matrimony.
"I believe the reason that the court gave 180 days to the Legislature [following its ruling] was to allow the Legislature the chance to look through all of the laws developed over the centuries and see how they should be adjusted or clarified for purposes of same-sex marriage; the Legislature didn't do that," Romney said.
Senator Bruce E. Tarr, Republican of Gloucester, said he believes the Legislature will ultimately pass bills that will insert gender neutral language into the state's marriage laws in time for the May 17 deadline.
"No one should interpret inaction thus far with the idea that no action is forthcoming," he said
3) Nothing happened by May of 2004. No laws were changed. Except Governor Romney ordered the town clerks to start issuing marriage licenses anyway. Look at the training provided to town clerks by Romney's Chief Legal Counsel Daniel Winslow, which includes the following: http://www.article8.org/ssm_training.pdf
-Slide 3 says that the Legislature has not made any changes to statutory laws to facilitate Goodridge -Slide 4 says that the SJC did not change the marriage statutes in c46 and 207 -Slide 5 says that there's not been any constitutional amendment. -Slide 6 says clerks should be ready to implement the "new law" on May 17.
What new law? There was none.
I think Wikipedia intends to be like an encylopedia, namely, conveying factually accurate information, as best as that can be ascertained. It takes less than a minute to read the Massachusetts Constitution to see that the court in Massachusetts does not have the authority to change a law, and thus the Wikipedia entry is inaccurate.
http://www.mass.gov/legis/const.htm Article XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for/
Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
What is the process for having the entry changed?
I concur with the edits of EnsignSOS. Your legal intrpretation is wrong. The Court did not create new laws, they INTREPRETED existing laws. Accoriding to the court the state never had the right to deny same sex couples marriage licenses. The state was always acting illegally. I read the sources you provided. They actually do not support your legal interpretation. They prove that it was the actions of the court that created gay marrige. Not Romney or the legislature. Your position is wrong. You may view this from one perspective, but wikipedia is not for viewpoints.--PhotographerLens 20:18, 26 November 2006 (UTC)
PhotographerLens, what I wrote is not a viewpoint--it's factually correct. I agree the court INTERPRETED the existing law and said that statute (MA General Law 207) denied same-sex couples the right to marry, and the state did not have the right to deny same-sex couples marriage licenses. But the Goodridge decision itself and the sources I shared state clearly that the court did NOT strike down the existing law. The law Goodridge ruled on--which bans homosexuals from marrying--is still in place. When the SJC in Goodridge, Mary Bonauto (representing GLAD), Gov. Romney, and a senior state senator all said the only thing that needed to happen was that the Legislature needed to change the law, why basis do YOU have for saying the change was self-enacting? What citation in the MA constitution to you have for your interpretation? For you to be correct, you would need to believe the court either changed a law they explicitly said they were not changing (and changing a law would be unconstitutional anyway), or they would have struck down a law they explicitly said they were not striking down. If they felt they had authority to strike or change the law, then why did they give the legislature 180 days to act? Why didn't they just change things right on the spot? It is because the constitution banned them from doing this.
Furthermore, as explained on a constitutional law blog sponsored by the Globe at Boston.com on May 14, 2004, three days before the "marriages" began (Scroll 2/3 of the way down the page to the May 14 entry), the failure of the legislature to act and change the statues did not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed:
"The authority of town clerks to issue and file marriage licenses and of the Department of Health to create procedures relative to marriage flows directly from the Massachusetts statutes cited in Goodridge. Therefore, when the Court found that those statutes did not permit same- sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.
"Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies--for example, town clerks--are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist. Yet, if the train keeps moving, that is exactly what will happen in Massachusetts on May 17. Town clerks, magistrate judges, and the entire executive branch are all gearing up for same-sex marriage. If the people of Massachusetts value their democratic principles, they will consider again the significance of May 17. Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.
"Importantly, the Goodridge Court could have written its opinion so that legislative action was not a prerequisite for same-sex marriage. The Court could have construed Massachusetts law as currently written to provide for same-sex marriage. Alternatively, the Court could have created a form of common law marriage that included same-sex unions. Either would have had the immediate effect of creating same-same marriage in Massachusetts. For obvious reasons, however, the Court chose to do neither. Radical changes to law should involve, to the greatest degree possible, the cooperation of all of the co-equal branches. Without delving into the Court's claim that the world's oldest functioning constitution suddenly now requires same-sex marriage, it is to the Court's credit that it crafted an opinion mandating legislative action prior to same-sex marriage arriving in Massachusetts.
"It is unfortunate that Governor Romney and others are undermining the democratic process by refusing to recognize this. The result is that Massachusetts may shortly have hundreds or even thousands of "married" couples of dubious status. If, in due course, the rule of law is honored, these marriages will be invalid for lack of enabling legislation"
What I have described is not a viewpoint--it is factual. Rather, the perspective conveyed in Wikipedia right now is a viewpoint--that the court "legalized" same-sex marriage.
[edit] Thanks, and question
Excellent article, exactly what I was looking for, the "how it became legal and how it works".
I have a question though, possibly for a new section. What are the "practical implications" for a couple who are married in this state, and who either travel, work or relocate out of state? That's quite important to cover.
FT2 (Talk | email) 21:24, 23 July 2006 (UTC)
- The Defense of Marriage Act (which some feel is unconstitutional) allows states not to recgonize same-sex marriages from other states and, according to that article, "Forty states have enacted laws denying the recognition of same-sex marriages, ... Six states currently have established laws recognizing some form of same-sex unions, and twelve states ban any recognition of same-sex unions including civil unions." The Full Faith and Credit Clause of the United States Constitution would be a strong argument for those few states that do allow some form of same-sex unions to recognize those established in other states. I am not a lawyer and I am not aware of any cases so far. --agr 03:21, 24 July 2006 (UTC)
[edit] Article 48, section 4, subsection 4 of the Massachusetts Constitution
"Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays"
Any constitutional scholars out there? Is this section of the Massachusetts constitution saying the legislature must vote “yea” or “nay” or it is saying that any vote taken on the initiative must be in the form of a “yea” or “nay” voice vote rather than another type of voting such as ballot, show of hands, rising or modern electronic means of voting? This type of specific requirement for voting procedures or form does seem to be relatively common in parliamentary procedures and the phrasing of the section seems to, if not imply, then leave the door open to this. I couldn’t find any recourses relating directly to this question and would appreciate any feedback.
