Same-sex marriage in Massachusetts

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Same-sex marriage in the U.S. state of Massachusetts began on May 17, 2004, as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only heterosexual couples to marry. Massachusetts became the sixth jurisdiction in the world (after the Netherlands, Belgium, Ontario, British Columbia, and Quebec) to legalize same-sex marriage. It is the first U.S. state to make same-sex marriages legal.[1]

Contents

[edit] History

Goodridge v. Department of Public Health was brought by Gloria Bailey and Linda Davies; Maureen Brodoff and Ellen Wade; Hillary Goodridge and Julie Goodridge; Gary Chalmers and Richard Linnell; Heidi Norton and Gina Smith; Michael Horgan and Edward Balmelli; and David Wilson and Robert Compton; the plaintiffs successfully argued that denying gay couples equal marriage rights was unconstitutional. The court specified that the original marriage law banned homosexuals from marrying. This law was left intact by the Goodridge ruling ("Here, no one argues that striking down the marriage laws is an appropriate form of relief.").[2] The court gave the Massachusetts Legislature 180 days in which to "take such action as it may deem appropriate" following its November 18, 2003 ruling. Gov. Mitt Romney ordered town clerks to begin issuing marriage licenses on May 17, 2004.

The first applications for marriage licenses for same-sex couples were issued at City Hall in Cambridge. Same-sex couples formed long lines in anticipation, with some waiting outside the City Hall all evening May 16. Beginning at 12:01 a.m. on the May 17, they were permitted to fill out their Notices of Intent to Marry. The first to file were Marcia Hams and Susan Shepherd. Other cities and towns in Massachusetts began issuing applications later in the morning, during business hours.

Massachusetts normally has a three-day waiting period before issuing marriage licenses, but many couples obtained waivers of the waiting period in order to be wed on May 17. Among these were the seven couples who were party to the lawsuit that led to the legalization of same-sex marriage, including Julie Goodridge and Hillary Goodridge, who were the first to apply for a license in Boston and whose eight-year old daughter Annie was their ringbearer and flower girl at their wedding at the Unitarian Universalist Association of Boston.

Cambridge took in 227 applications overnight; Provincetown took in 113; more than 1,000 applications were made on the first day statewide. Two-thirds of applicants were women, and one-half of the applicants had been partners for more than a decade. Forty percent of the female couples had children in their homes. In the first year, more than 6,200 gay and lesbian couples were married due to pent-up demand, but that number fell to only 1,900 marriages in the second year. Out of the total of more than 8,100 marriages, 64% involve lesbian couples.[3] In comparison, more than 36,000 heterosexual couples are married each year in Massachusetts.[4]

Governor Mitt Romney launched the "superslate" campaign in 2004, based on the idea that the state Republican party could use Conservative ideals and family values as a wedge issue and gain seats, spending millions of his own dollars and personally campaigning for Republican candidates in traditionally Democratic seats. Despite his efforts, the Republican party nonetheless lost three seats in the 2004 election. Since then, many legislators have changed their views to reflect growing support for gay marriage among their constituents. One of the original sponsors of the amendment to ban gay marriage and legalize civil unions, Brian Lees, said, "Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry."[5]

[edit] Attempts to amend the state constitution

Immediately after the Supreme Judicial Court's ruling, efforts began to overturn this decision by amending the state constitution. The most recent effort to amend the state constitution to forbid same-sex marriage was defeated by the state legislature on June 14, 2007.[6] As a result, same-sex marriage will remain legal in Massachusetts until at least 2012, barring another decision by the Massachusetts Supreme Judicial Court or the United States Supreme Court on the topic or a Federal constitutional amendment banning such marriages.

[edit] Constitutional amendment campaign

In order to amend the state constitution, it is necessary for an amendment first to receive sufficient support at two state constitutional conventions (a joint meeting of the General Court, i.e. the House of Representatives and the Senate) held during two successive two-year sessions, before going before the voters in a referendum. An amendment put forward by legislators needs a majority (101 out of 200) at two constitutional conventions and an amendment put forward by petition needs a 25% vote (50 out of 200) at two constitutional conventions. An amendment that would forbid same-sex marriage, establish civil unions for same-sex couples conveying the same rights and responsibilities as marriage, and convert existing same-sex marriages into civil unions passed the first constitutional convention but was defeated in the second.[6]

An earlier amendment that originated in the legislature would have substituted civil unions, but it failed after many moderate legislators who had initially voted for the amendment abandoned it, and most legislators on the right elected to throw their support behind a ballot initiative to ban future same-sex marriages, with no provision for civil unions. Unlike amendments in other states, however, the proposed ballot initiative amendment does not explicitly forbid civil unions. The new amendment was sponsored by an organization called VoteOnMarriage.org. The full text of the ballot initiative amendment reads "When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman."

[edit] Certification of referendum petition

The petitions for a ballot initiative amendment were certified as valid on September 7, 2005 by Massachusetts Attorney General Thomas Reilly.[7] VoteOnMarriage.Org then collected 170,000 signatures before the December 7, 2005 deadline; 65,825 were required. The amendment was challenged in court, based on a provision in the Massachusetts Constitution (Article 48, Section 2), which prohibits the use of an initiative petition for "reversal of a judicial decision."[8] In July 2006, the Massachusetts Supreme Judicial Court ruled unanimously that the amendment did not constitute "reversal" of a judicial decision, given that the proposed amendment sought to define only those marriages performed after its enaction.[9] If passed, the amendment would have restricted future marriages to opposite-sex couples but not rescind the approximately 8,000 same-sex marriage licenses already issued. [10]

[edit] First Constitutional Convention vote

The first Constitutional Convention vote on the petition amendment was scheduled for July 12, 2006,[11] but was postponed until November 9, 2006 to take place after the next state elections.[12] On November 9th, 2006 the Legislature voted to recess the Constitutional Convention until January 2.

On November 19, 2006, Gov. Mitt Romney led a rally against the tactics that the Massachusetts legislature used to delay and possibly prevent a vote on the same-sex marriage ballot initiative in front of the Massachusetts State House. Romney said he would ask a justice of the state Supreme Judicial Court that week to put the initiative on the ballot in case the legislators failed to vote on the initiative on the last day of the Joint Session, January 2, 2007 as required by the Massachusetts Constitution Amendments Article XLVIII (The Initiative, IV. Legislative Action on Proposed Amendments, Section 2. Joint Session)[13] Romney said, "The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution."

On December 27, 2006, the Massachusetts Supreme Judicial Court agreed unanimously with Gov. Mitt Romney's repeated assertion that Article 48 of the Massachusetts Constitution explicitly and unambiguously requires that the Massachusetts Legislature take a final vote on any and all voter initiatives placed before them. That includes the marriage amendment. The court, though, also stated that it had no legal remedy that it could enforce upon the Legislature due to laws that separate the judicial and legislative branches of government.[14] The legislature voted on the measure on January 2, 2007, shortly before its 2005-2006 session ended. The amendment received 62 "for" votes in Constitutional Convention and thereby cleared its first hurdle toward ratification.[15] However, a second vote during the 2007-2008 session was needed to put the amendment to the voters.

[edit] Second Constitutional Convention vote

A second joint session of the State Legislature meeting in a constitutional convention was held on June 14, 2007. The marriage amendment was defeated by a vote of 151 against to 45 in favor. At least 50 "for" votes were needed for the measure to move on to a public referendum.[6]

[edit] Proposed amendment to the ballot initiative process

Currently, the legislature is considering whether to submit a question to the voters that, if passed, would amend the state constitution to prohibit ballot initiatives dealing with the curtailment of "civil rights" or "matters of equal protection."[16] In the interim, should another ballot initiative seeking to ban same-sex marriages make its way to the voters, the soonest it could appear on the ballot is 2012.[17]

[edit] Timeline

  • May 7, 2002: Suffolk County Superior Court Judge Thomas E. Connolly issues an opinion in Goodridge v. Department of Public Health denying plaintiffs' statutory and constitutional claims for recognition of same-sex marriage. Relying on the history of Massachusetts marriage laws and constitutional provisions, Judge Connolly determined that the marriage statute was not gender-neutral and no fundamental right to same-sex marriage existed. He concluded by saying that the issue should be handled by the legislature.[1]
  • November 18, 2003: The Massachusetts Supreme Judicial Court rules 4 to 3 in Goodridge v. Department of Public Health that the state's ban on same-sex marriage is unconstitutional and gives the state legislature 180 days to change the law. The court found 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" because of a clause in the state's constitution that forbids "the creation of second-class citizens."[1]
  • February 4, 2004: The court clarified in a statement to the Massachusetts Senate that it was unacceptable to allow heterosexual couples marriages but homosexual couples only civil unions; they found the distinction unconstitutional discrimination, even if the state rights granted were otherwise identical. The court also reiterated the need for the Legislature to change marital laws. "The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision.” [18]
  • February 11, 2004: A constitutional convention is convened to attempt to overturn the Supreme Court's decision. After six weeks marked by intense debate and tactical voting to prevent a more extreme measure, the state legislature narrowly passes an amendment 105-92 that would ban same-sex marriage but allow civil unions. The amendment could have taken effect if it was approved by the legislature in 2005, and by popular vote in 2006.[19]
  • April 16, 2004: Legislative action to change the laws still has not occurred. “He [Romney] 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 was to allow the Legislature the chance to look through 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 (R) of Gloucester, said he believes the Legislature will ultimately pass bills that will insert genderneutral 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.[20]
  • May 17, 2004: Gov. Romney ordered town clerks to issue marriage licenses to same-sex couples as per the Supreme Judicial Court's ruling, 180 days after it was issued, without the legislative action called for by the actual ruling. The city of Cambridge began processing applications at one minute past midnight, cheered on by a crowd of five thousand gathered outside City Hall. Massachusetts has a three-day waiting period after a marriage application has been issued, but couples can seek a judicial waiver of that requirement.[21]. The first marriage was issued to Tanya McCloskey and Marcia Kadish, of the Boston suburb of Malden — was finalized by 9:15 a.m. on May 17.[22]
  • September 7, 2005: Massachusetts Attorney General Thomas Reilly certified the wording of a referendum to ban gay marriage: "When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman."
  • September 14, 2005: The second convention to amend the Commonwealth's Constitution to disallow same-sex marriage (but permit civil unions) was held, which would allow the issue to go to a popular vote in 2006. This time, the amendment was defeated soundly, 157-39, and thus was not put before the voters.[23]
  • December 7, 2005: VoteOnMarriage.Org submitted 170,000 signatures for the referendum, with 65,825 required. The amendment can now appear on the ballot if 50 legislators approve it in conventions during the current and next legislative sessions. The first convention is scheduled for July 12, 2006.[11]
  • March 30, 2006: The Supreme Judicial Court upheld a 1913 Massachusetts law that prohibits non-residents from marrying in Massachusetts if their marriage would be void in their home state. It ruled that same-sex couples domiciled in other states that expressly prohibit same-sex marriage cannot legally marry in Massachusetts, and remanded cases from New York and Rhode Island to the Superior Court to determine whether same-sex marriage is prohibited in those states.[24]
  • September 29, 2006: Superior Court Justice Thomas E. Connolly ruled "that same-sex marriage is [...] not prohibited in Rhode Island". In his ruling[25], Justice Connolly wrote:
No evidence was introduced before this Court of a constitutional amendment, statute, or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage; and, after an exhaustive search, this Court has found no such prohibitory law. (page 8)
  • December 27, 2006: The Massachusetts Supreme Judicial Court ruled unanimously [26] that Massachusetts legislators have a constitutional obligation to vote on all voter initiatives before them before the end of any joint session. This settles the issue raised by many opponents of the marriage amendment, who have repeatedly stated that Article 48 of the Massachusetts Constitution does not require a vote by legislators. The SJC also indicated, however, that they have no authority to impose a legal remedy for the plaintiffs. In its opinion, the SJC unanimously agreed:
"The members of the joint session have a constitutional duty to vote, by the yeas and nays, on the merits of all pending initiative amendments before recessing on January 2, 2007. With respect to legislative action on proposals for constitutional amendments introduced to the General Court by initiative petition, the language of art. 48 is not ambiguous."
"Today's discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them."
  • January 2, 2007: The proposed amendment received a vote on the last day of the 2006 legislative session. While 132 legislators opposed the amendment, 61 supported it, enough to advance the measure to the next legislative session.
  • June 14, 2007: The proposed amendment was defeated when it failed to receive enough votes. 151 legislators opposed the amendment and 45 supported it, falling short of the 50 votes required to advance the measure to the November 2008 ballot. 4 legislators were absent or abstained from the vote.[6]

[edit] See also

[edit] References

  1. ^ Hillary GOODRIDGE & others [FN1] vs. DEPARTMENT OF PUBLIC HEALTH & another. [FN2] SJC-08860. Massachusetts Government (2003-11-18).
  2. ^ Ring, Dan. "8,100 gay, lesbian couples marry after 2004 decision", Springfield Republican, 2006-05-17. 
  3. ^ Marriage rates by State: 1990, 1995, and 1999-2004 (PDF). National Center for Health Statistics (2005-10-19).
  4. ^ "Same-Sex Marriage Win In Boston", CBS News (AP), 2005-09-14. 
  5. ^ a b c d Phillips, Frank. "Legislators vote to defeat same-sex marriage ban", The Boston Globe, June 14, 2007. Retrieved on 2007-06-15. 
  6. ^ Lewis, Raphael. "Reilly OK's 2008 initiative on ban of gay marriage", The Boston Globe, 2005-09-08. 
  7. ^ CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS. Massachusetts Government.
  8. ^ Helman, Scott. "Gay-marriage opponents get SJC go-ahead", The Boston Globe, 2006-07-11. 
  9. ^ Wetzstein, Cheryl. "'Marriage' amendment OK'd for vote", The Washington Times, 2006-07-11. 
  10. ^ a b Helman, Scott. "Tactics honed as debate nears on banning gay marriage", The Boston Globe, 2006-05-18. 
  11. ^ Andrea Estes and Russell Nichols. "Lawmakers delay vote on gay marriage measure", The Boston Globe, 2006-07-13. 
  12. ^ Amendments Article XLVIII, The Initiative, IV. Legislative Action on Proposed Amendments, Section 2. Joint Session. CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.
  13. ^ Saltzman, Jonathan (2006-12-28). Vote on gay marriage is due but can't be forced, SJC says: Next step is up to Legislature. The Boston Globe.
  14. ^ Frank Phillips and Lisa Wangsness. "Same-sex marriage ban advances: Lawmakers OK item for ballot, but hurdle remains", The Boston Globe, 2007-01-03. 
  15. ^ CALENDAR OF THE JOINT SESSION OF THE TWO HOUSES FOR THURSDAY, JUNE 14, 2007. Government of Massachusetts (2007-06-14).
  16. ^ Sacchetti, Maria. "Gay-union foes vow to target legislators", The Boston Globe, 2007-07-24. Retrieved on 2007-07-29. 
  17. ^ Margaret H. Marshall, Chief Justice; John M. Greaney; Roderick L. Ireland; Judith A. Cowin. "Majority opinion", The Boston Globe, 2004-02-04. 
  18. ^ "Vote ties civil unions to gay-marriage ban"", The Boston Globe, 2004-03-30. 
  19. ^ "Romney seeks authority to delay same sex marriage", The Boston Globe, 2004-04-16. 
  20. ^ "Cambridge plays host to a giant celebration", The Boston Globe, 2004-05-17. 
  21. ^ "Same-sex couples exchange vows in Massachusetts", CNN, 2004-05-17. 
  22. ^ "Massachusetts Rejects Bill to Eliminate Gay Marriage", The New York Times, 2005-09-15. 
  23. ^ Will the State of Massachusetts Ever Permit Same-Sex Out-of-Staters to Marry?. FindLaw.
  24. ^ Connolly, Thomas E. (2006-09-29). SANDRA COTE-WHITACRE & others vs. DEPARTMENT OF PUBLIC HEALTH & others MEMORANDUM OF DECISION ON WHETHER SAME-SEX MARRIAGE IS PROHIBITED IN NEW YORK AND RHODE ISLAND (PDF).
  25. ^ C. Joseph Doyle & others vs. Secretary of the Commonwealth & another (2006-12-27).

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