Same-sex marriage: Its time has come

The struggle for marriage equality saw its first major victory last month as Massachusetts began issuing marriage licenses to same-sex couples. In the past year, through civil disobedience and court decisions, thousands of same-sex couples have been married across the country.

On May 17, the first day of marriage licenses being issued to same-sex couples in Massachusetts, thousands lined up at clerks’ offices across the state to get their licenses, the result of the Massachusetts Supreme Judicial Court’s landmark November 2003 decision in the Goodridge v. Dept. of Public Health case.

In the ruling, Chief Justice Margaret Marshall was aware of its controversial nature.

“We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors,” she wrote.

“Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach.”

The opinion pointed out that stopping same-sex couples from marrying creates a tier of second-class citizens: “Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”

For many couples the decision was a legal confirmation of their relationship. For Jean McGuire and Barbara Herbert, the decision allowed them to take another step in their 14-year relationship.

Two of their three adult children, along with other friends and family, were on hand during the couple’s civil service ceremony on the lawn of Cambridge City Hall, May 17. (Their other daughter, who was working in London, was present via cell phone.)

They spoke of their community’s support of their relationship through the years. Their neighbors in Cambridge, they said, had treated them and their children as equal citizens, something they acknowledged not all same-sex couples enjoy.

“We’ve had the good fortune, even before this decision, to live in a place that recognizes our relationship, allowed us to go to parent-teacher meetings together, appreciated that we were a family,” McGuire said.

Herbert, who is an emergency room doctor and was due at work that afternoon, told reporters of the support she felt at work.

“There were lots of people who said to me very clearly that they have religious objections to us getting married but they want to see [what is] fair,” she said.

“And so they were thrilled at the idea that we were coming here to have a civil ceremony, even across those objections.”

The couple was in a unique situation since at the time of the original case McGuire was working in the Department of Public Health, which in addition to its many health programs is responsible for the issuance of marriage licenses.

While she no longer works there, she said that her sexual orientation had never been a problem in the office, but that it was difficult for her when the lawsuit was brought against the department.

Comparing Goodridge to another landmark decision, Brown v. Board of Education, which celebrated its 50th anniversary on the same day as the first licenses were issued, McGuire pointed to the looming political struggle in Massachusetts.

“If we had allowed people to vote on Brown v. Board of Education where would we be right now?” she asked.

“The notion that our marriages should be up to a public vote should be questioned. This is about equity and equality and opportunity, and it’s not about putting it out for the determination of the voting public.”

But marriages like McGuire’s and Herbert’s might be up to a public vote in the next few years. Several states are set to have votes on whether same-sex marriages should be legal.

In Massachusetts, voters may be faced with the decision to approve an amendment to the state constitution. While the Legislature failed to reach an agreement this year, and, therefore, the question won’t be put to voters yet, opponents of marriage equality have already said they will take up the issue again in the 2005 session.

While celebrating the victory in Massachusetts, many are preparing for the many battles to come. Even as they came out of city halls with marriage licenses in hand, some couples voiced their concerns.

“The way things are going in this counry we wanted to do this as quickly as possible,” said Norm Sanguay, who on May 17 applied for a marriage license with Stewart Azar, his partner of 15 years. They had their two young children in tow.

“You never know. The sooner we affirm our commitment the better.”

Massachusetts Gov. Mitt Romney made many attempts during the 180 days between the Goodridge decision and its institution to overturn the court’s ruling. He was aided in his challenges by a number of conservative groups from around the country.

The Arizona-based Alliance Defense Fund, which describes itself as “a legal alliance defending the right to hear and speak the Truth, through strategy, training, funding, and litigation,” has been a party to many of the anti-equality legal challenges across the country.

The group is currently involved in the California Supreme Court case against San Francisco Mayor Gavin Newsom for his issuing of marriage licenses to same-sex couples earlier in the year and was behind a last-minute attempt to stop Massachusetts from issuing marriage licenses to same-sex couples.

The U.S. Supreme Court refused to hear that case, but it is expected that it will not be the last time such an appeal will be brought before the court. Should the Supreme Court take up such a case, it would bring all three branches of the federal government into the debate.

In his State of the Union address in January, President George W. Bush called for a constitutional amendment banning same-sex marriage.

In the face of what Bush has repeatedly called “activist judges,” he said, “The only alternative left to the people would be the constitutional process” if marriage were defined in a way that included same-sex couples.

Congress quickly took up Bush’s call. The Senate Judiciary Committee has been holding a series of hearings on the matter over the past few months.

In the current Senate, it is unlikely that opponents of same-sex marriage will be able to gather the required 67 votes. However, the Senate seats that are up for grabs in November could change this.

Debate over the Federal Marriage Amendment and the potential for getting the necessary votes has added to the urgency of the already hot-button election issue of same-sex marriage.

While the debate continues at the federal level, states are moving quickly to pass legislation as well. Under the 1996 federal Defense of Marriage Act, states are not required to recognize same-sex marriages performed in other states.

Because it was left as a states’ rights issue, the issue of a federal amendment was forestalled.

However, marriage equality opponents are now working furiously for such a federal ban in reaction to local and state actions, such as those in Massachusetts and San Francisco.

As the November elections near, the debate continues on both state and federal levels. Bush is set to use the issue in an attempt to solidify his conservative base. Several states are likely to present voters with initiatives to ban same-sex marriage.

However, while acknowledging the continuing struggle for full, national marriage equality, couples such as Herbert and McGuire and Azar and Sanguay are celebrating their new marriages.

For a helpful chart illustrating the different benefits of marriage, civil unions, or no marital status, visit the web site of the Gay and Lesbian Advocates and Defenders, www.glad.org.

The author can be reached at jbarnett@pww.org.