Same-sex marriage in Massachusetts

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Same-sex marriage in Massachusetts began on May 17, 2004, as a result of the Massachusetts Supreme Judicial Court (SJC) ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only opposite-sex 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 was the first U.S. state to issue marriage licenses to same-sex couples.[1]

History[edit]

Background[edit]

In 1989, passing legislation first proposed in 1973, Massachusetts prohibited discrimination based on sexual orientation in credit, public and private employment, union practices, housing, and public accommodation.[2] In the decade that followed, political debate addressed same-sex relationships through two proxy issues: spousal benefits and parenting rights. Boston's City Council debated health insurance for the same-sex partners of city employees in May 1991[3] and Cambridge provided health benefits to the same-sex partners of its employees the following year.[4] In 1992, Governor Bill Weld issued an executive order providing limited benefits for the same-sex partners of approximately 3,000 management-level state employees, covering only leave for family sickness and bereavement, far short of the health benefits LGBT activists were seeking, but probably the first state-level recognition of same-sex relationships.[5] The Roman Catholic bishops of Massachusetts, replying in The Pilot, the newspaper of the Boston Archdiocese, said that Weld's "domestic partners" decision harms the common good "by making a special interest group equal to the family" and confuses "civil rights and family benefits". They asked: "Why should special recognition and assistance be given to friends who happen to share the same house?"[6] Legislation to establish domestic partnerships that would carry spousal benefits was introduced annually in the state legislature without success. Its supporters focused on equal benefits and fairness rather than same-sex relationships themselves.[7] In 1998, when the legislature passed a home rule petition allowing Boston to create such a status, Governor Paul Cellucci vetoed it because it applied to different-sex couples, which he thought undermined marriage, while he offered to sign legislation that applied to same-sex couples only. Boston Mayor Thomas Menino's attempt to extend health care benefits to city employees' domestic partners by executive order instead.[8] was successfully challenged by the Catholic Action League in court.[9]

The state had no explicit regulations with respect to foster care and parenting by gays and lesbians, either singly or in relationships, until, on May 24, 1985, the state Department of Social Services, with the approval of Governor Michael Dukakis, created a rule that foster children be placed in "traditional family settings".[10] In December 1986, a commission that reviewed the foster care system recommended that sexual orientation could not be used to disqualify foster parents.[11] As Dukakis delayed accepting that recommendations, advocates for gay and lesbian rights threatened protests against his presidential campaign.[12] The ban on gay foster parents was enacted into law in the 1989 budget.[13] After a lawsuit challenging the ban was settled out of court, the Dukakis administration withdrew the policy in April 1990.[14] In the 1990s, court decisions further expanded the parenting rights of gays and lesbians. In September 1993, the state's highest court ruled that state law allowed for second-parent adoption by a parent of the same sex as a biological parent.[15] In July 1999, the same court awarded visitation rights to each of two mothers after their separation.[16]

Same-sex marriage itself was rarely mentioned or addressed directly during these years. The Coalition for Lesbian and Gay Civil Rights launched a campaign on behalf of marriage rights for same-sex couples in Massachusetts in 1991. Governor Bill Weld said he would be willing to meet with the group and said he was undecided on the question.[17] When asked about "gay marriage" while running to represent Massachusetts in the U.S. Senate in 1994, Mitt Romney said: "it is not appropriate at this time".[18] In December 1996, considering the possibility of Hawaii legalizing same-sex marriage, Weld said that Massachusetts would recognize the validity of same-sex marriages licensed there. He called the Defense of Marriage Act unconstitutional.[19]

In neighboring Vermont, activists mounted a legal challenge to that state's denial of marriage licenses to same-sex couples. The lawsuit, Baker v. Vermont, was launched on July 22, 1997.[20] The decision on December 20, 1999,[21] launched a four-month debate as the legislature considered how to meet the court's requirement that same-sex couples have access to the rights and privileges of marriage. The end result was the passage of legislation establishing civil unions as an alternative to marriage.[22] Governor Howard Dean signed the legislation on April 26[23] and it took effect on July 1.[24]

Protection of Marriage Amendment[edit]

In December 1998, state Representative John H. Rogers, a Democrat, proposed legislation to prevent Massachusetts from granting legal recognition to same-sex marriages established elsewhere: "a purported marriage contracted between persons of the same sex shall be neither valid nor recognized in the Commonwealth."[25] In 1999, the Lesbian and Gay Political Alliance of Massachusetts called it a "hate bill" and a coalition of more than 150 religious leaders formed the Religious Coalition for the Freedom to Marry to oppose it.[26] Others religious leaders organized in support of the measure.[25] Rogers revised his proposal to define marriage as the union of a man and a woman when he offered it again in 2001, with the additional provision that "Any other relationship shall not be recognized as a marriage, or its legal equivalent, or receive the benefits exclusive to marriage in the Commonwealth." The chair of the Lesbian and Gay Political Alliance of Massachusetts said its prospects for passage were slim but it could serve as a countervailing proposal to efforts at establishing civil unions or providing benefits to same-sex partners of state and local government employees.[27][28] Alongside these legislative maneuvers, GLAD filed a lawsuit in state court challenging the denial of marriage rights to same-sex couples in April 2001.[29]

In July 2001, Massachusetts Citizens for Marriage announced a campaign to amend the state constitution with language similar to Rogers' legislation,[30] called the "Protection of Marriage Amendment".[31] Some signature gatherers complained that opponents of the amendment were harassing them and their opponents charged in turn that some signature gatherers were misrepresenting the petition's content.[32][33] A sufficient number of signatures were certified in December.[34]

The President of the Massachusetts Senate controls the calling of a constitutional convention and its agenda.[35] Senate President Tom Birmingham, an opponent of the amendment, called a joint meeting of the legislature as a constitutional convention for June 19, 2002, and immediately adjourned it for a month saying legislators needed for time to consider the agenda items.[36] When the constitutional convention met again on July 17, the amendment's opponents knew that proponents had the 50 votes needed for passage. Birmingham, who was presiding, moved for adjournment without considering the amendment, and his motion passed 137 to 53. He called the amendment "wrong-hearted and wrong-headed" and defended the procedure: "Everybody recognizes a vote to adjourn was a vote up or down" on the amendment. "I did gavel the last constitutional convention to a recess because I felt the members needed more time to assess.... Today we saw democracy in action. They may not like it, but they lost two to one." A representative of the Catholic Action League, which supported the amendment, said: "Everything that is wrong with Massachusetts state government was apparent today for all the world to see". One legislator who voted to adjourn said: "For those of us who believe in an open democratic process, this was not a comfortable vote". State Senator Cheryl A. Jacques, an opponent of the amendment and a lesbian, said: "I'm proud to have done anything possible to defeat this hate-filled, discriminatory measure. I'll take a victory on this any way I can get it."[37] Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus later explained it was a critical moment because same-sex marriage had no chance of winning a popular vote at the time: "Not that we would lose by a little, because that wasn't an issue. Rather, it was that we were going to get massacred".[38]

In April 2003, a committee of the legislature held a hearing on the constitutional amendment,[39] but took no action.[40] The four Roman Catholic bishops of Massachusetts, long distracted by the revelations of the sexual abuse of minors by priests, did not address the issue until late May, when they ordered pastors to read and publish a statement to mobilize their parishioners to contact their legislators to urge then to support the constitutional amendment.[41] On June 10, the Court of Appeal for Ontario decided Halpern v. Canada, making same-sex marriage immediately legal in that province.[42]

Goodridge v. Department of Public Health[edit]

Seven same-sex couples represented by Gay & Lesbian Advocates and Defenders initiated a lawsuit in state court, Goodridge v. Department of Public Health, on April 11, 2001. The plaintiffs argued that denying same-sex couples equal marriage rights was unconstitutional under the state constitution. On May 7, 2002, Suffolk County Superior Court Judge Thomas E. Connolly ruled that the state marriage statute was not gender-neutral, no fundamental right to same-sex marriage existed, and that limiting marriage to male-female couples was rational because "procreation is marriage's central purpose".[43] He concluded his legal analysis by saying that the issue should be handled by the legislature.[1]

The plaintiffs appealed directly to the Supreme Judicial Court (SJC), which heard arguments on March 4, 2003. Mary Bonauto of GLAD argued the case for the plaintiffs. Assistant Attorney General Judith Yogman represented the DPH.[44] On November 18, 2003, the SJC ruled 4 to 3 that the state's ban on same-sex marriage was unconstitutional. The court said: "We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." It provided a definition of marriage that would meet the state constitution's requirements: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." The court stayed its ruling for 180 days to allow the state legislature "take such action as it may deem appropriate in light of this opinion."[1]

Governor Mitt Romney said he disagreed with the SJC's decision, but "We obviously have to follow the law as provided by the Supreme Judicial Court, even if we don't agree with it". He said he would work with the legislature to draft a law "consistent" with the ruling. He also backed an amendment to the state constitution to define marriage as the union of a man and a woman while also providing by statute "basic civil rights and appropriate benefits to same-sex couples and other nontraditional relationships."[45] Romney quickly joined legislators in attempting to satisfy the Goodridge decision by creating civil unions for same-sex couples.[46] His views were recognized as an attempt to establish his record on a controversial issue while planning to run for the Republican nomination for president.[47] Former Governor Weld took credit for laying the groundwork for the decision: "A lot of the stuff we did foreshadowed the opinion." He said: "It is a thunderbolt, but a thunderbolt correctly heard."[48]

Opponents of gay and lesbian rights opposed any compromise with the SJC. Brian Camenker, head of the Parents Rights Coalition, said: "As Martin Luther King pointed out in his letter from the Birmingham jail, there are some laws that are so unnatural that you have an obligation to openly defy them. The concept of stable, healthy gay relationships is largely a manufacturing of the gay propaganda machine." He called the decision "complete lunacy" and said: "It's beyond shocking. It's madness. It's four judges basically turning society inside out with no input from anybody else."[49]

Interpreting Goodridge[edit]

On December 11, 2003, the Massachusetts Senate submitted legislative language creating civil unions for same-sex couples to the SJC, asking if it satisfied the court's requirements.[50][51] On February 4, 2004, the court replied that it was unacceptable to allow different-sex couples marriages but same-sex couples only civil unions, that the distinction between marriage and civil unions constituted unconstitutional discrimination, even if the rights and obligations attached to each were identical. It called the difference between the terms marriage and civil union "a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status." As for the argument that the federal government's refusal to recognize same-sex marriages as marriages justified the use of a different term, the court said: "Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this kind of labeling.... We do not abrogate the fullest measure of protection to which residents of the Commonwealth are entitled under the Massachusetts Constitution ... because those rights might not be acknowledged elsewhere." The court also reiterated the need for the legislature to modify the state's 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." It ended: "The answer to the question is 'No.'"[52] Religious leaders responded with strong statements on both sides of the issue. Archbishop O'Malley said in a statement: "The tone and tenor of this answer clearly demonstrates the overly activist stance of the four-judge majority.... Clearly, the justices who issued this opinion seem determined to blur the constitutional separation of powers and to usurp the rightful role of the Legislature." He called for the legislature to act during its scheduled joint session to put a constitutional amendment banning same-sex marriage to a popular vote.[53] Governor Mitt Romney authored an op-ed in the Wall Street Journal that called the latest SJC ruling "wrongly decided and deeply mistaken", backed a state constitutional amendment and urged other states to take similar action, but did not endorse the idea of a federal constitutional amendment.[54]

Without coming to agreement on how to proceed, legislative leaders considered several legal options, including passing statutes to delay the implementation of Goodridge, a strategy outlined by Mary Ann Glendon of Harvard Law School, until a referendum on a constitutional amendment could be held in November 2006.[55] Amending the Massachusetts Constitution is a multi-year process that could not be accomplished before the date set by the SJC for the issuance of marriage licenses to same-sex couples.[56] In order to amend the state constitution, it is necessary for an amendment first to receive sufficient support at two state constitutional conventions, which is a joint meeting of the two houses of the General Court (the House of Representatives and the Senate), held during two successive two-year sessions, before going before the voters in a referendum during a normally scheduled November election. 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.[56]

Constitutional Convention 2004[edit]

Advocates of same-sex marriage, who had been far outnumbered as demonstrators two years earlier, were a large and constant presence in the State House throughout the 2004 convention, coordinated by MassEquality, an umbrella organization formed to respond to the public backlash against Goodridge. They had mobilized constituent telephone calls with increasing success in the weeks before the convention and emphasized the impact on children being raised by gay parents.[57] The amendment's proponents drew support from Massachusetts Citizens for Life and larger donations than they had previously received, along with personal lobbying in localities.[58]

The legislature met in joint session as a constitutional convention on February 11, and after six hours of debate rejected two amendments, one proposed by House Speaker Thomas M. Finneran and the other by Senate President Robert E. Travaglini. Both banned same-sex marriage, one made civil unions possible and the other established civil unions. Finneran commented: "We are as divided as the nation on this. We are doing the best we can. We are human beings. We struggle. Sometimes we come up short."[59] The convention met again the next day and defeated an amendment that defined marriage as the union of a man and a woman and disavowed any position on civil unions on a 103-94 vote that showed divisions in each party and Catholic legislators evenly divided.[60] Ronald Crews of the Massachusetts Family Institute blamed Finneran's misreading of his own caucus for the failure of his own proposed language, a defeat in the convention's opening moments from which Crews found it impossible to recover.[61]

At the end of March, after extended debate[62] and some tactical voting in which some legislators backed measures they would not ultimately support in order to prevent the adoption of an even stronger measure, the convention passed by a vote of 105-92 an amendment to ban same-sex marriage but allow civil unions. It also specified that civil unions should not be treated as marriages for federal purposes. The language adopted had Romney's support. One report described the process: "Tenuous and shifting coalitions held together in the final vote, despite a series of parliamentary moves by liberal lawmakers to stop anything from moving forward. In the end, an amendment that was disliked by the political right and the political left was approved because it was the only measure that could draw the support of a majority of lawmakers." The proposed amendment, if approved by a second constitutional convention in 2005, would be placed before the voters as a referendum in November 2006. Romney believed the vote justified asking the SJC to stay its ruling requiring the issuance of marriage licenses to same-sex couples on May 17, but Attorney General Reilly said there was no legal basis for making that request.[63]

As the Constitutional Convention concluded its work on the amendment, some politicians announced plans to make the November 2004 elections a referendum on same-sex marriage. In Vermont following the enactment of civil unions legislation in 2000, a large group of its supporters had been defeated. One political action committee announced plans to target legislative candidates who supported same-sex marriage, eight Republicans and two independents.[63] Ronald Crews of the Massachusetts Family Institute estimated a possible shift of 10 to 15 seats against same-sex marriage.[64] The elections resulted in shifts that consistently favored supporters of same-sex marriage rights. Carl Sciortino, a gay activist and first-time candidate, drew support from supporters of same-sex marriage, but ran largely on traditional issues like education, taxation, and health-care, and narrowly defeated a 16-year veteran and same-sex marriage opponent in the Democratic primary on September 14.[65] Later that month, Speaker of the House Finneran resigned from the legislature to be replaced by Sal DiMasi, who backed same-sex marriage.[66] Some candidates who backed a constitutional amendment did not make same-sex marriage a campaign issue as anticipated,[67] but it proved critical in a few races.[68][69] All 50 incumbents who opposed a constitutional amendment and faced challengers won re-election. Four supporters of Goodridge retired and successors with similar views replaced them. Five opponents of Goodridge retired and three of their successors were supporters of same-sex marriage. In special elections in the spring of 2005, three incumbents who supported a constitutional amendment lost to supporters of same-sex marriage.[70]

Attempts to delay implementation[edit]

Despite Romney's urging, Attorney General Reilly refused to ask the SJC to stay its decision, saying that implementation was not problematic and that a popular vote on a constitutional amendment was the only way to resolve the issue. On April 16, 2004, Romney asked the legislature to pass legislation giving him authority to request a stay. He said the implementation of the SJC ruling presented legal complications, citing both a 1913 law that invalidates the marriage of nonresidents if the marriage is invalid in their home state and the possibility that a popular referendum on same-sex marriage might retroactively invalidate same-sex marriages.[71] Conservative groups like the Coalition for Marriage praised Romney for continuing to search for a way to block same-sex marriages.[71]

In April, C.J. Doyle of the Catholic Action League of Massachusetts and several conservative advocacy organizations tried to block the implementation of Goodridge in state court until the attempt to amend the state constitution was allowed to run its course. A single justice of the SJC dismissed the complaint on May 3.[72] A few days later, shortly before the Goodridge decision was to take effect, a conservative public interest law firm, Liberty Counsel, brought suit in federal court on behalf of an officer of the Catholic Action League and eleven members of the legislature. It argued that the SJC's decision deprived the people of Massachusetts of their right to republican government. On May 13, 2004, U.S. District Court Judge Joseph Tauro denied their request for an injunction delaying implementation of the decision, as did the First Circuit Court of Appeals on June 29.[72] In November the Supreme Court declined to hear the case without comment.[73]

On May 14, Democratic Representative Philip Travis filed legislation to impeach Chief Justice Margaret Marshall, the author of the Goodridge decision. Another bill targeted all four justices who signed the majority decision in that case.[74][75]

Implementation[edit]

With respect to implementation, the principal dispute concerned the 1913 statute that denied a marriage license to a couple if their marriage that would not be valid in their state of residence. The Massachusetts Town Clerks' Association raised the issue for the first time on February 24, reporting that some of them were receiving inquiries from out-of-state couples.[76] New York Attorney General Elliot Spitzer made the question more urgent when he issued a non-binding opinion on March 3 that "New York common law requires recognizing as valid a marriage ... validly executed in another state".[77] On March 31, Romney took the position that no other states recognized same-sex marriage and therefore residents of other states could not marry in Massachusetts. Reilly took the position that 38 states expressly denied recognition to same-sex marriages and that residents of other states could obtain licenses.[78]

Localities that supported the right of same-sex couples to marry resisted both those interpretations. On April 11?, Provincetown's Board of Selectmen decided their town clerk would approve marriage license applications from any couple that swore, as was customary, that their marriage was lawful. The town manager said: "We've never been the marriage police with heterosexual couples, and we're not about to start with same-sex couples".[79] Worcester's clerk took a similar position on April 16.[80] Before the end of the month, an investigation by the Boston Globe showed that since 1976 town clerks had been repeatedly instructed not to question applicants for marriage licenses about their eligibility. A spokesman for the Governor said that the Goodridge decision "changed the definition of marriage, it changed the way the new marriage forms look, and it changed the way city and town clerks will carry out the requirements of the law."[81]

When Romney suggested confusion over the 1913 law justified postponing the implementation of Goodridge, Mary Bonauto, the lawyer who successfully argued Goodridge, suggested he get the law repealed: "If he's so concerned about problems, he can file an emergency bill to repeal that law. Massachusetts has basically said discriminating against people of the same sex is unconstitutional. So why would we try so hard to uphold another state's discriminatory law?"[82] She asked: "Under the governor's logic, if some state again started banning marriages between Catholics and Protestants, then would Massachusetts enforce that?"[83] In an interview on April 23 Romney said: "Massachusetts should not become the Las Vegas of same-sex marriage. We do not intend to export our marriage confusion to the entire nation."[84] His spokesman announced he was sending letters to the governors and attorneys general of the other states to explain his view that same-sex marriage was not legal in their state and asking "if we're wrong" about that.[85] Denying license to all out-state couples became known as "the Romney plan". It also allowed visitors from Ontario to marry, since same-sex marriage was legal there. The Governor's legal counsel, Daniel Winslow, warned that a Justice of the Peace who could not in conscience officiate at a same-sex wedding should resign.[86]

On May 4, when the Romney administration began training clerks to handle applications from same-sex couples, a Boston Globe report called it "a major shift from the governor's earlier stance on enforcing limitations on licensing gay marriage." The new forms were gender-neutral, identifying the applicants as "Party A" and Party B" and asking each to check a box for either male or female.[87] Clerks could require proof of residency if they asked that of all couples, but needed only to have applicants swear that there were no legal impediments to their marrying in Massachusetts. The administration said that earlier reports had been premature.[88][89] Some towns and clerks announced plans to knowingly issue licenses to out-of-staters, including Provincetown, Worcester, and Somerville.[90][91] Bonauto said that GLAD's position was that applicants should never be less than honest, "let alone on a form signed under oath".[92]

First same-sex marriages[edit]

On May 16, 2004, Cambridge, which the New York Times described as having "a well-known taste for erudite rebelliousness", decorated the wooden staircases of City Hall with white organza. Hundreds of applicants and supporters in celebratory dress–"glittery party hats and boutonnieres"–gathered in the street. City officials opened the building at 12:01 a.m. May 17 "for a rousing party, with wedding cake, sparkling cider and the music of the Cambridge Community Chorus." Some 262 couples obtained licenses, starting with Marcia Hams and Susan Shepherd. The first to wed in Cambridge were Tanya McCloskey and Marcia Kadish at 9:15 a.m.[93] Cambridge City Clerk Margaret Drury was the first City Clerk in the U.S. to perform a same-sex marriage.[94] Massachusetts has a three-day waiting period before issuing marriage licenses, but many couples obtained waivers of the waiting period in order to be wed as soon as possible.[95][96]

Other cities and towns in Massachusetts began issuing applications during normal business hours. Boston Mayor Thomas Menino greeted three of the couples who were plaintiffs in Goodridge and said: "We've broken down the barrier. I am so proud of these people. I am very proud to be mayor of this city today."[97] The first to marry in Boston City Hall were Tom Weikle and Joe Rogers, who lined up for their license application at 5:30 a.m. and were wed about 11 a.m. by Boston's city clerk.[93] Rejecting the governor's insistence that the 1913 statute be respected, Somerville Mayor Joseph Curtatone addressed a crowd of same-sex couples that included several from New York gathered in front of Town Hall at 8 am.: "No matter who you are or where you come from, if you fill out the application, you will be given a license to marry. Those of you from out of state, welcome to Somerville."[93] The seven couples who were party to the Goodridge lawsuit were all wed on May 17,[98] beginning with Robert Compton and David Wilson at Boston's Arlington Street Church.[97] There were sizable celebrations in Northampton, Worcester, and Provincetown, while "explicit protests were scattered and few".[99]

A Boston Globe survey found that half of the couples who applied for licenses on the first day had been partners for a decade or more. Two-thirds were women and 30 percent were raising children. Only the towns that had made an issue of issuing licenses to out-of-staters had appreciable numbers of them.[100] In the first week, 2,468 same-sex couples applied for licenses, including at least 164 from 27 other states and the District of Columbia.[87]

Governor Romney in a brief statement said: "All along, I have said an issue as fundamental to society as the definition of marriage should be decided by the people. Until then, I intend to follow the law and expect others to do the same."[97] President Bush took note of these events in Massachusetts with a statement calling for a constitutional amendment "defining and protecting marriage as a union of a man and a woman as husband and wife." It said: "The sacred institution of marriage should not be redefined by a few activist judges. All Americans have a right to be heard in this debate."[101]

News coverage of the day's events in Massachusetts was extensive, though limited outside the United States.[102] The Today Show broadcast live coverage from outside Boston City Hall.[103] The three major networks lead their evening news shows with wedding coverage. The Cincinnati Enquirer ran the tag "For better or for worse" above the headline "Same-sex weddings make history". It was the lead story in the Washington Post and the New York Times.[102]

On the same day, non-binding opinions by the attorney generals of two more neighboring states fueled debate about enforcing the 1913 law. On May 17, Richard Blumenthal wrote in a letter to Romney that the status of an out-of-sate same-sex marriage in Connecticut was not "automatically void", and Patrick C. Lynch reported that Rhode Island only invalidated a marriage that violated public policy as in cases of "bigamy, incest or mental incompetence".[104][105]

Constitutional Convention 2005[edit]

The constitutional convention took up the compromise amendment approved in 2004. It failed on a vote of 157-39 on September 14, after many moderate legislators who had initially supported it refused to and most legislators opposed to same-sex marriage abandoned its compromise language.[106] State Senator Brian Lees, a Republican who co-sponsored the amendment in the previous convention, explained why he withdrew his support: "Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry. This amendment which was an appropriate measure or compromise a year ago, is no longer, I feel, a compromise today."[107] Opponents turned instead to an alternative method of amending the constitution that they thought would allow them to present an uncompromising ban on same-sex marriage to the voters. This method would require the collection of thousands of signatures on petitions but would need the support of only a quarter of the legislators to become a referendum. The process of gathering signatures was already underway when the legislators voted to reject the 2004 compromise.[106] Travis explained that the opponents' fervor came in reaction to the position taken by gay and lesbian activists:[108]

We all want to give people the rights to have insurance and transfer property. No one is so rotten to the core that they wouldn't even consider that. That would be inappropriate.

But we don't want to call it marriage. And remember, they held out for marriage. Civil unions weren't acceptable to the gay community in Massachusetts. They didn't want a second-sister relationship like they have in Vermont. They wanted the full-blown description with the title of marriage.

Initiative to amend the state constitution[edit]

Petitions[edit]

An organization called VoteOnMarriage.org organized the petition drive. Its backers included Governor Romney, former Boston Mayor Ray Flynn, former SJC justice Joseph Nolan, and Gilbert Thompson, president of the board of the Black Ministerial Alliance of Greater Boston. The language of their amendment was:[109]

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.

Unlike amendments in other states, the amendment did not explicitly forbid other forms of legal relationships for same-sex couples, such as civil unions or domestic partnerships. It did not attempt to invalidate same-sex marriages licensed since Goodridge.

Attorney General Reilly certified the language and format of petitions as valid on September 7, 2005. Advocates of same-sex marriage objected that the proposed amendment was clearly designed to reverse the SJC decision, a violation of the state constitution's rule that amendments could not be used for that purpose.[109] Deval Patrick, Reilly's principal opponent for the Democratic nomination for governor, said "There was a strong argument that this should have gone a different way." Massachusetts Secretary of State William F. Galvin said: "I think this is one of those instances where the institution of gay marriage may be less divisive to society than the referendum campaign will be. The emotions that this kind of issue brings out can be very detrimental to society. It has been around for a year and any honest person can conclude that it has not been detrimental to society."[109]

VoteOnMarriage.org collected 170,000 signatures before the December 7, 2005, deadline, almost three times the number required. Paid signature collectors from Arno Political Consultants subsequently revealed that an unknown but large number of these signatures had been collected through fraud. The collectors told voters that they were signing a petition about a different issue or that the petitions were in favor of same-sex marriage.[110][111]

GLAD challenged Reilly's certification of the petitions in court, claiming the effort contradicted a provision of the Massachusetts Constitution (Article 48, Section 2), which prohibits the use of such petitions for "reversal of a judicial decision."[112] In July the SJC 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 passage.[113] If passed, the amendment would have restricted future marriages to different-sex couples but would not have invalidated the approximately 8,000 same-sex marriage licenses already issued.[114]

Constitutional Convention 2006[edit]

On July 12, 2006, the legislature sitting as a constitutional convention voted 100 to 91 to postpone action on the initiative amendment until November 9, 2006, two days after the elections. Supporters of same-sex marriage sought the delay, which the amendment's backers denounced and Romney criticized it.[115] As that date neared, Arline Isaacson, a lobbyist for the Gay and Lesbian Political Caucus, was not optimistic about her side's chances and Senate President Robert Travaglini was considering allowing a vote to adjourn without acting on the measure.[116] Instead, on November 9, 2006, the legislators in convention voted 109 to 87 to recess until January 2, the last day of the legislative session.[117]

On November 19, 2006, Governor Romney led a rally against the legislature's delaying tactics in front of the Massachusetts State House. 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." He said he would ask a justice of the SJC to order the initiative placed on the ballot because the legislators were refusing to fulfill their constitutional obligations.[117] The next day he sent the 109 legislators a copy of the state constitution with a letter underscoring the document's provision that the legislators sitting as a constitutional convention shall vote on initiatives: "Not 'may' vote ... not 'could' vote ... not 'perhaps' vote ... It's very clear." His reference was to the clause: "final legislative action in the joint session ... shall be taken only by call of the yeas and nays".[118] He filed the lawsuit as one member of a group of private citizens on November 24, citing 5 occasions in 24 years in which the legislature failed to vote on valid initiatives. Other plaintiffs included Ray Flynn and officials of VoteOnMarriage.org and the Catholic Action League of Massachusetts.[119] Named as defendants were the Massachusetts Secretary of State, who oversees the preparation of election ballots, William F. Galvin, and the President of the Massachusetts Senate who chairs joint sessions of the legislature, Senator Travaglini. After a 20-minute hearing on November 30, Associate Justice Judith A. Cowin ordered an expedited hearing before the full SJC on December 20.[120] At that hearing both sides agreed that the SJC could not enforce an order against the legislature. An attorney for the plaintiffs said: "We're not asking you to tell the Legislature how to do their business. We're only asking you to declare what their constitutional obligations are." An Assistant Attorney General representing the legislature countered that the voters were free to replace the legislators at the next election.[121]

On December 27, 2006, the SJC ruled unanimously that Article 48 of the state constitution requires legislators to take recorded votes on initiative amendments. The SJC's opinion authored by Justice John M. Greaney said the legislators' duties were "beyond serious debate"[122] and described their constitutional obligations:[123]

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 ... 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.... 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 ... ultimately will have to answer to the people who elected them.

He explained that the Court could take no action against the plaintiffs in the case: "[T]here is no presently articulated judicial remedy for the Legislature's indifference to, or defiance of, its constitutional duties. We have no statutory authority to issue a declaratory judgment concerning the constitutionality of the legislative action, or inaction, in this matter."[123]

VoteOnMarriage.org, which had gathered the petitions signatures on the proposal the legislators had failed to vote on, sued on December 13, asking a federal court to order them to vote or, in the absence of a vote, to order the amendment placed on the ballot. It also sought $500,000 from the 109 who voted to adjourn, the cost of its signature-gathering campaign.[124]

Arline Isaacson, one of the leaders of the Massachusetts Gay and Lesbian Political Caucus, urged the legislature to adjourn without voting on the amendment. She said: "We know that if the Legislature votes on the amendment, we will lose this year and next year, and it will go to the ballot, where it will likely pass." Senator Lees said he thought the legislature would not be swayed by the ruling and he stood by his opposition to taking a vote: "I will never vote to put a form of discrimination into the state constitution,"[122]

Before the legislators met, Deval Patrick, who was due to succeed Romney as Governor on January 4, said: "I hope by whatever means appropriate, the constitutional convention today ends this debate. I think a vote on adjournment is a vote on the merits."[125] The joint session of the legislature, promptly after coming to order and without debate, voted on the amendment on January 2, 2007, the last day of its 2005-2006 session. There were 62 votes in favor and 132 opposed, a sufficient number to require the amendment's consideration at another constitutional convention.[126] Isaacson said that the SJC ruling "really tipped the scales against us."[125]

Constitutional Convention 2007[edit]

When the State Legislature met as a constitutional convention in June, observers anticipated a closer vote than the previous January because of retirements and some announced changes in position. Advocates of the amendment charged that the political pressure on legislators on the part of Governor Deval Patrick and legislative leaders included job offers and trading votes on other issues. Opponents of the amendment cast the vote as one of conscience and personal rather than political lobbying.[127][128] The day before the convention, the state's four Roman Catholic bishops in a letter to legislators endorsed putting the issue to a popular vote: "[T]he marriage debate should not be reserved only to lawyers and lawmakers. Every citizen has a stake in the outcome, because every citizen has a stake in the well-being of the family."[129] Cardinal Sean P. O'Malley called several legislators to lobby for their votes and Governor Patrick said he offered some help in their re-election campaigns.[130] On June 14, 2007, the convention opened and proceeded immediately to a vote on the issue without debate. The measure failed to obtain the required 50 votes, as 45 voted in favor, 151 opposed the measure, and four were absent or abstained from the vote.[131] Two new legislators who were thought to support the amendment voted against it, while nine who had supported it in January, seven Democrats and two Republicans, changed their votes to oppose it.[130] VoteOnMarriage.Org announced it would attempt to unseat legislators who had switched sides to defeat the amendment.[132]

Marriages of non-residents[edit]

A Massachusetts law enacted in 1913 invalidated the marriage of non-residents if the marriage was invalid in the state where they lived. Historians and legal scholars believe it originated in an upsurge of anti-miscegenation sentiment associated with the notoriety of champion boxer Jack Johnson's marriages to white women. Though moribund for decades, it was used to prevent same-sex couples who were residents of other states from marrying in Massachusetts. As the date neared for the issuance of marriage licenses to same-sex couples, the governor and some town clerks disputed how and whether that law should be enforced, and Romney had used the state's authority to block the same-sex marriages of non-residents from being properly recorded. He told a news conference: "We certainly won't record on our public health records marriages that are on the face of them not consistent with the law".[133] The clerks soon relented under orders from the Attorney General.[134][135] In June 2004, GLAD brought a lawsuit, Cote-Whitacre v. Department of Public Health, on behalf of several out-of-state same-sex couples and several town clerks who objected to being forced to discriminate in denying licenses to such couples.[136] The SJC upheld the law on March 30, 2006, though it allowed that residents of states like New York and Vermont, which did not explicitly exclude same-sex couples from marriage, might pursue the case further.[137][138] On September 29, 2006, Superior Court Justice Connolly determined that same-sex couples who reside in Rhode Island can marry in Massachusetts after finding "that same-sex marriage is ... not prohibited in Rhode Island".[139] In May 2007, Judge Connolly declared valid the marriages of several same-sex couples, residents of New York, who married in Massachusetts before July 6, 2006, when a New York court issued a ruling that same-sex marriage was not legal there, New York's first explicit prohibition on same-sex marriage.[140] In July 2007, the DPH ruled that same-sex couples from New Mexico, where whether the law prohibits same-sex marriage is disputed, can obtain marriage licenses in Massachusetts.[141]

On June 15, 2007, following the defeat of the initiative to amend the state constitution, Kris Mineau of the Massachusetts Family Institute warned that gay and lesbian activists would try to repeal the 1913 law next so that "This radical social experiment will be exported to the other 49 states". He said its repeal would "open the floodgates for Massachusetts to become the Mecca for same-sex marriage. Their goal is to strike down the marriage restrictions in every state. Their launching pad will be Massachusetts." Isaacson said "no one is rushing" to take on that issue and that "In the short term, we want everyone to rest, breathe and appreciate the incredible victory that took place".[142] Liberal columnist Ellen Goodman wrote: "Las Vegas? Mecca? So far, little Rhode Island is the only state that allows gay residents to wed in Massachusetts. We are the Las Vegas of Rhode Island."[143]

On June 17, 2008, California began issuing marriage licenses to same-sex couples without placing any restrictions on non-residents.[144] On June 30, the Williams Institute at UCLA, in reply to an inquiry from Daniel O'Connell, Massachusetts Secretary of Housing and Urban Development, reported that it calculated that allowing non-resident same-sex couples to marry would add $37 million to the Massachusetts economy in each of the next three years and add 330 jobs for the same period.[145]

The Massachusetts legislature took up the repeal of the 1913 law the next month. On July 15, the Massachusetts Senate voted to repeal it on a unanimous voice vote.[146] The House approved the legislation on July 29 on a 118 to 35 vote[147] and Governor Deval Patrick signed it on July 31. It took effect immediately.[148] He said: "I think other states will make their own judgments, and I expect them to–that's their own business. All we can do is tend our own garden, and make sure that it's weeded, and I think we've weeded out a discriminatory law that we should have."[149]

MassResistance mounted a petition drive for a referendum to reinstate the law in October 2008, but failed to collect enough signatures.[150]

Recognition of legal relationships from other jurisdictions[edit]

On July 26, 2012, in a case involving a same-sex couple who established a civil union in Vermont in 2003, the SJC ruled unanimously in Elia-Warnken v. Elia that Massachusetts recognizes a same-sex civil union established a different jurisdiction as the legal equivalent of a marriage.[151] Chief Justice Ireland wrote: "Refusing to recognize a legal spousal relationship that granted rights equal to those acquired through marriage, in a State that did not allow same-sex couples to marry at the time, would only perpetuate the discrimination against same-sex couples" that led the court to tell the state Senate in 2004 that civil unions would not suffice as an alternative to marriage for same-sex couples.[152] The SJC took a comparable position on September 12 with respect to domestic partnerships established in other jurisdictions in a case involving a California couple, A.E.H. v. M.R..[153]

Marriage rates[edit]

In the first year, more than 6,200 same-sex couples were married. That number fell to only 1,900 marriages in the second year. Out of the total of more than 8,100 marriages, 64% involved lesbian couples.[154] In comparison, more than 36,000 heterosexual couples are married each year in Massachusetts.[155]

The number of marriage licenses issued to same-sex couples in Massachusetts leveled off at about 1,500 a year in 2006 and 2007. They represented about 4% of all marriages in the state.[156]

Public opinion[edit]

A poll of Massachusetts residents taken on November 19–20, 2003, found that 50 percent supported the Supreme Judicial Court's decision to legalize same-sex marriage, 38 percent opposed it, and 11 percent had no opinion; 53 percent opposed a proposed constitutional amendment to define marriage as the union of a man and a woman and 36 percent supported it; 53 percent thought the legislature should do nothing more than modify state law to conform with the SJC opinion, while 16 percent wanted the governor and legislators to resist the ruling's implementation and 23 percent wanted them to provide benefits to same-sex couples while reserving marriage to different-sex couples.[157]

A June 2011 Public Policy Polling survey found that 59% of Massachusetts voters thought same-sex marriage should be legal, while 33% thought it should be illegal and 8% were not sure.[158]

A September 2011 Public Policy Polling survey found that 60% of Massachusetts voters thought same-sex marriage should be legal, while 30% thought it should be illegal and 10% were not sure. A separate question on the same survey found that 86% of respondents supported legal recognition of same-sex couples, with 56% supporting same-sex marriage, 30% supporting civil unions, 12% opposing all legal recognition and 2% not sure.[159]

A March 2012 Public Policy Polling survey found that 58% of Massachusetts voters thought same-sex marriage should be legal, while 31% thought it should be illegal and 11% were not sure. A separate question on the same survey found that 86% of respondents supported legal recognition of same-sex couples, with 55% supporting same-sex marriage, 31% supporting civil unions, 12% opposing all legal recognition and 2% not sure.[160]

A June 2012 Public Policy Polling survey found that 62% of Massachusetts voters thought same-sex marriage should be legal, while 30% thought it should be illegal and 8% were not sure. A separate question on the same survey found that 88% of respondents supported legal recognition of same-sex couples, with 58% supporting same-sex marriage, 30% supporting civil unions, 11% opposing all legal recognition and 2% not sure.[161]

A May 2013 Public Policy Polling survey found that 58% of Massachusetts voters thought same-sex marriage should be legal, while 32% thought it should be illegal and 10% were not sure.[162]

A September 2013 Public Policy Polling survey found that 60% of Massachusetts voters thought same-sex marriage should be legal, while 29% thought it should be illegal and 11% were not sure.[163]

See also[edit]

References[edit]

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