The constitutional amendment.
Events leading up to marriage equality
2004-FEB-02: Court confirms that same-sex marriage is the only
Some state legislators had suggested that the
court's ruling was ambiguous. They hoped that a full civil union
system, such as is available to same-sex couples in Vermont, might be found
constitutional by the state Supreme Judicial Court. The state Senate
formally asked the court for a ruling.
On FEB-02, the state Supreme Judicial Court issued an
advisory opinion in response to the Senate's request. They ruled that a
parallel system of civil unions would not be constitutional. Vermont-style civil unions will not suffice.
They wrote that a bill that created same-sex civil unions as a parallel
system to opposite-sex marriages makes for: "unconstitutional, inferior, and
discriminatory status for same-sex couples....The history of our nation has
demonstrated that separate is seldom, if ever, equal."
This ruling cleared the way
for full same-sex marriages starting in 2004-MAY-17.
President Bush responded to the court ruling. He said:
"Today's ruling of the Massachusetts Supreme Judicial Court is deeply
troubling. Marriage is a sacred institution between a man and a woman.
If activist judges insist on re-defining marriage by court order, the
only alternative will be the constitutional process. We must do what is
legally necessary to defend the sanctity of marriage."
Rev. Louis P. Sheldon, Chairman of the Traditional Values
Coalition, said that the court ruling is: "a bad decision which is
attempting to thwart government by the people and is yet another
egregious example of judicial tyranny....Rather than trying to coax the
Massachusetts courts and the legislature to do what is right, I believe
the hour is at hand to introduce a Constitutional marriage amendment
which defines marriage simply and clearly."
Cheryl Jacques, head of the gay-positive group, Human Rights
Campaign, said in a statement: "It comes as no surprise to most
people that the court upheld its earlier ruling for equality and
fairness... The state's highest court did the only thing it could do in
the face of such glaring discrimination against hard-working, taxpaying
couples and their children in Massachusetts."
Tony Perkins, president of the Family Research Council said
in a statement, "Today's decision by the SJC leaves no doubt what is at
stake in Massachusetts. Either the institution of marriage will be
protected, or it will be redefined out of existence....The SJC has not
left any wiggle room for state legislators who were hoping to bypass the
controversial debate by simply granting homosexual couples civil union
partnerships. Instead each and every one of them will have to decide
whether the people will be ruled by an unaccountable judiciary, or
whether they will be given the power to overrule the SJC's
decision.....We are not just fighting to preserve marriage in
Massachusetts. This case will determine the future of marriage
throughout America. If same-sex couples 'marry' in Massachusetts and
move to other states, the Defense of Marriage Act will be left
vulnerable to the same federal courts that have banned the
Pledge of Allegiance and sanctioned
Carol Rose, Executive Director of the ACLU of Massachusetts,
said in a statement, "Massachusetts's highest court has now made it
clear that two people who fall in love and form a committed relationship
should not be denied the right to protect their relationship through
marriage just like any other couple."
Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project,
Said: "The Court says that a 'civil union' system can never be really
equal. If you give all couples the same state legal protections, the
only possible explanation for saying same-sex couples are in a 'union'
instead of a marriage is to say they are less worthy."
Massachusetts Gov. Mitt Romney (R) said" "We've heard from the
court, but not from the people. The people of Massachusetts should not
be excluded from a decision as fundamental to our society as the
definition of marriage."
Sandy Rios, president of Concerned Women for America, said:
"The people are not going to let a few renegade judges destroy the
fundamental institution of marriage. The founders of this state were
patriots committed to the cause of liberty and equality. The people will
not stand by and let the state become a dictatorship ruled by tyrannical
The only way to overturn the court's
decision would be for the state to amend its constitution to specifically
deny same-sex couples the right to marry.
2004-FEB-11: Debate scheduled for the state constitutional amendment:
A Marriage Affirmation and Protection Amendment to the state
constitution was written and introduced in both the House and Senate. It would
modify the constitution to prevent same-sex couples from
marrying. In order to be implemented, the amendment would have to be passed by
both the House and Senate during two constitutional conventions in two successive legislative sessions, and then
win a majority vote of the public in the 2006-NOV polls.
The amendment was scheduled to be debated in a joint session of the legislature
on 2003-FEB-11. 1 However,
Senate President Robert Travaglini (D) is reported as saying on 2004-JAN-12
that he would postpone the debate if the Supreme Judicial Court had not
ruled on the constitutionality of civil unions.
Legislators from the Massachusetts House and Senate met in a
constitutional convention during February but were unable to reach an
agreement on a path forward. They met again in early March, and approved three
resolutions which start the process towards a constitutional amendment. It
would single same-sex couples out as a group, and deny them the right to
marry. There are a few sections in U.S. state constitutions that grant
special rights to identifiable groups, based on their religion (as for
Quakers) or ethnic origin (as for Native Americans). If passed, we believe
that this will be only the third state constitution -- after Alaska and
Hawaii -- who grant special privileges to a group based on sex.
Hundreds of people chanted and waved signs within and outside of the
State House. Some signs read: "If you don't believe in gay marriage,
don't have one," "No discrimination in the Constitution," "Love
for people, not for sin," and "God made Adam and Eve, not Adam and
Steve." Other demonstrators chanted: "God's way. One man, one woman"
and "One man, one woman. Let the people vote."
Some details of the resolutions:
Marriage would be limited to one man and one woman.
A parallel system of Vermont-style civil unions would be created which would
grant same-sex couples the 400 or so benefits give by the state
to married couples. However, they would receive none of the 1,000 or so
federal benefits given automatically to married couples.
If the constitution is modified to forbid same-sex marriage, there
is no provision for those couples who will have married between
2004-MAY-17 (the date set by the courts when the state must start to
marry same-sex couples) and the date when the public vote is confirmed
The strategy of the Massachusetts Family
Institute, (MFI) and the Family Research Council, two principal agencies opposing SSM
in the state, was to "bifurcate"
the proposed amendment so that the voters will be asked to express their
stand on two separate topics. As the amendment was written, in order for a
voter to restrict marriage to one man-one woman, they would have to vote in
favor of civil unions for same-sex couples. MFI wanted to split the amendment
into two questions: the first would reserve marriage for one man and one
woman; the second would create a system of civil unions. Their apparent hope
was that the voters would approve the former and reject the latter, leaving
gays, lesbians and some bisexuals without any legal recognition of their relationships,
and thus they and their children would receive none of the
rights given to married couples. Their backup position was to reluctantly accept the existing
amendment, even though it grants limited rights to same-sex couples.
The strategy of the Freedom to Marry Coalition of
Massachusetts appeared to be to kill the proposed amendment, and allow the
court's decision to stand. Their backup position appeared to reluctantly accept
the existing amendment, even though it makes same-sex couples into second-class
citizens. They reasoned that it would be better to be second-class citizens with
limited rights than third-class citizens with no relationship rights at all.
2004-MAR-29: Initial approval of constitutional amendment:
The Massachusetts House and Senate met again in a
constitutional convention on MAR-29 for a final vote on the resolutions.
They approved them by a relatively narrow vote of 105 to 92. The resolution
needed 101 votes to proceed. The next step is for the
next House and Senate to approve the
measure again in 2005. It would then be voted upon by the public in 2006.
According to the Freedom to Marry Coalition, eight legislators
voted against the resolution because they strongly oppose any legal
recognition of same-sex relationships at all. They want to exclude gays and
lesbians from even being allowed to enter civil unions. 5 But their decision makes no
sense. In voting against the resolution, they almost derailed the
constitutional amendment. And if the amendment did not go forward, then the
Supreme Judicial Court's decision will stand; same sex couples will
be allowed to marry for the foreseeable future. So by trying to deny
same-sex couples the right to a civil union, they made it more likely that
these couples would be allowed to marry. This is curious reasoning.
Within minutes of the approval, Governor Mitt Romney (R) said he will ask the
Supreme Judicial Court (SJC)to delay implementation of its 2003-NOV ruling which
ordered the state to issue marriage licenses to same-sex couples. He said that
he will request a formal stay of its decision until the constitutional amendment
process is completed, probably in 2006. According to the Massachusetts Family
Institute, "Attorney General Tom Reilly is unwilling to cooperate with
the Governor's request for the SJC to delay the imposition of their decision on
gay marriage." 6
Neither side was pleased with the approval of the amendment. Demonstrators
filled the hallways of the Statehouse, crying "Jesus Christ" and "Equal
Rights." Two opposing comments:
State Representative Vinny deMacedo (R) said: "We are giving the
people a false choice. We're saying: 'No problem; you can vote to define
marriage as between a man and a woman. But, the only way you can do it is if
you create civil unions that are entirely the same as marriage. Ultimately,
if it every makes it to the ballot, it will fail." DeMacedo appears to
have made a factual error. The proposed amendment would only give same-sex
civil unionized couples about one third of the rights and privileges of
opposite-sex married couples.
Arline Isaacson of the Massachusetts Gay and Lesbian Political Caucus
said: "I believe many of them are going to feel very ashamed of what
they've just done today." 7
CovenantNews.com posted a note, titled:
"Mass. Lawmakers OK Sodomite Unions." It said:"Abominations:
Exhibiting no fear of eternal damnation for their reckless disregard of
the ordinances of God, the people of Massachusetts, through their state
legislature, approved by 105-92 vote on Monday a state constitutional
amendment creating sodomite civil unions. The amendment specifies that
these filthy sex-offenders can receive 'entirely the same benefits,
protections, rights, privileges and obligations as are afforded to
married persons'." 8
The Freedom to Marry Coalition feels that they will be able to
prevent the amendment from being passed in the next legislative session.
They wrote in a news release: "In spite of what the governor is saying,
thousands of same-sex couples will be getting married on and after May
17th. Once these marriages occur this entire debate will be transformed.
These marriages will show that people have nothing to fear or worry about.
These marriages will help a small percentage of the population a great deal;
and, they will hurt no one! The beauty and dignity of these ceremonies will
continue to open people's hearts."
If the Supreme Judicial Court turns down the governor's request to
suspend their ruling and prevent same-sex couples from marrying, then the
stakes will subtlety shift. Instead of trying to prevent same-sex couples
from marrying, social conservatives will be trying to destroy probably
thousands of existing marriages involving loving committed couples and their
Activities as 2004-MAY-17 data approached:
May 17 is the date when the Supreme Judicial Court's
of Massachusetts -- the state's supreme court -- has ordered that
marriage licenses be made available to both opposite and same-sex couples.
2004-APR-27: Conservative Christian reaction: The
Fundamentalist Christian group, Focus on the Family, described the
reactions of three leaders in the state as the day approaches:
Terry Phillips, a correspondent for Focus wrote that: "Even
supporters of traditional marriage [i.e. those who wish to deny marriage
to same-sex couples] say the current thinking in the Bay State seems to
be 'it's the law and it's essentially inevitable'."
Conservative religious leaders in the state seem at odds over
whether state employees should obey the law:
Ray McNulty of the Coalition for Marriage said: "If
that's the case, it will be the law, as distasteful as it is to us,
and it will have to be obeyed."
Mat Staver, of Liberty Counsel disagreed. He said: "...I
would advise the governor not to effectuate this law...In fact, (it)
is no law at all. It's just a renegade decision by four justices."
APR-27: Governor gives an order to civil servants: Governor Mitt Romney (R) has told state workers that their job is to
enforce the laws as they currently exist. This means that justices of
the peace and clerks must either issue marriage licenses to same-sex
couples or resign.
APR-27: Lawsuit to overturn court
decision: A fundamentalist Christian
group, the American Center for Law & Justice (ACLJ), filed
a legal motion with the Supreme Judicial Court on behalf of 16
Massachusetts legislators. They have asked that the court rescind their
own Goodridge decision. Their lawyers argue that the court lacked jurisdiction
to hear and rule on the case, they usurped unconstitutionally the rights
of the legislature, and they violated the constitutional principle of
separation of powers. The lawsuit failed.
MAY-2: Governor resuscitates miscegenation law: Governor Mitt Romney (R) allegedly considered an attempt to prohibit
out-of-state same-sex couples from marrying in Massachusetts after
MAY-20. He has resurrected an ancient miscegenation law that was
originally intended to discriminate against inter-racial couples who
lived in other states which did not allow them to marry. This
law was passed in 1913 which prevented such couples from coming to
Massachusetts and getting married. The law is still on the books, but
several county clerks have said that they will refuse to enforce it.
If the governor attempted to restrict marriage, he would probably be in
violation of his oath of office, which requires him to obey the state
constitution, as interpreted by the Massachusetts Supreme Judicial
Court. Evan Wolfson, head of Freedom to Marry and a longstanding
promoter of equal marriage rights for all said: "As far as we can
tell, it has never been enforced in Massachusetts because of its tainted
origin and wrong-headedness. That the governor would attempt to
resurrect it now speaks volumes about his effort to channel (former
Alabama segregationist governor) George Wallace at this moment in time."
MAY-12: Federal District Court hears
petition: Four conservative Christian
groups: Liberty Counsel, Citizens for the Preservation of
Constitutional Rights, the Thomas More Law Center and the
American Family Association's Center for Law & Policy initiated a
lawsuit. All four oppose equal rights
for gays and lesbians in general and same-sex marriage in particular.
They presented their request for an injunction before Federal District
Judge Joseph Tauro of the First U.S. Court of
Appeals. It would prevent the Supreme Judicial Court's 2003-NOV
decision from being implemented on MAY-17.
Mat Staver, president of Liberty Counsel, wrote:
"The Supreme Judicial Court clearly overstepped its authority and
usurped the power of the legislature to define marriage." Staver
also commented: "The federal courts are obligated to step in to
ensure that Massachusetts is following the basic principle of separation
of powers that is vital to our system of law and government." The
lawsuit was based in part on the U.S. Constitution's Article 4, Section
4, which states: "The United States shall guarantee to every State in
this Union a republic form of government..." The
lawsuit failed. 11
MAY-12: State court hears petition:
A fundamentalist Christian legal group, the Alliance Defense Fund (ADF)
argued their case in Massachusetts Superior Court on behalf of
local businessman Thomas A Shields and former mayor of Boston, Ray Flinn.
They argued that the Supreme Judicial Court did not have the authority
to order the state to issue marriage licenses to same-sex couples. Their
request was rejected. The court reasoned that it was too similar to the
lawsuit filed by the ACLJ which was also rejected.
2004-MAY-14: ACLJ lawsuit
failed: The Supreme
Judicial Court handed down its ruling on
the APR-27 motion by the American Center for Law & Justice (ACLJ).
They rejected the petition to reverse their 2003-NOV decision, and declined to block their
order to issue marriage licenses to same-sex
couples starting on Monday, MAY-17. According to Arline Isaacson,
co-chair of the Massachusetts Gay and Lesbian Political Caucus, many same-sex couples have been "nervous wrecks about whether they
could marry starting Monday...Now they can all breathe a sigh of
Council lawsuit failed: The First U.S. Court of
Appeals turned down a petition for an emergency stay of the
Massachusetts Supreme Judicial Courts ruling which requires marriage
licenses to be issued to same-sex couples, starting on MAY-17. It was
immediately appealed to the Appeals Court, located in the same
courthouse. It also failed. 11
Also on MAY-14, the Massachusetts Family Institute, the Heritage
Alliance, CatholicVote.org and The Coalition for Marriage
sponsored an anti-same-sex marriage rally in Faneuil Hall in Boston. Few
of the approximately five million residents of the Boston region appear
to be interested in opposing same-sex marriage. Only about 100 people
attended the rally; quite a few of them were probably from the
organizing groups. They booed when they heard of the court decision.
According to EarthLink.net: "Speakers railed against what they
called 'sexual sin' and warned that gay marriage could have negative
effects on families. Sandy Rios, former president of the
conservative group Concerned Women for America, referring to
same-sex couples, said: "The problem is they're being told that their
sin is wonderful and fine. May 17, two days from now, will be a day that
will change the world."
12 There is one ironic twist to the EarthLink article.
It features a photograph of Linda Pineda and John DeBach, an engaged
couple from the Boston area who plan to marry in the fall of 2004. In
many states of the U.S., prior to 1967, they would not have been able to
marry; they appear to be an interracial couple. Yet, they attended the
rally in order to show their opposition to the marriage of other
Council lawsuit failed again: The emergency appeal before the
Appeals Court was rejected. However, the court did set a time to
hear oral arguments during the week of JUN-4. Mat Staver,
president of Liberty Counsel, then asked the U.S. Supreme Court to hear
the case on an emergency basis. They declined to become involved. 13
2004-MAY-16: Calendar of SSM events:
Less than 24 hours away
from "marriage equality in Massachusetts" the Freedom to Marry
Coalition issued a news release linked to a calendar of events that
will take place in the state over the subsequent week to "commemorate
and celebrate this historical occasion." There will be at least one
party, rally, prom, parade, interfaith religious service, ice cream
social, pot luck, film showing, information booth, church bell ringing,
reception, breakfast, balloon launching. The mayor and city of Cambridge
and Newton are sponsoring celebrations. At 9:30 AM on Monday "the
three Boston-area Goodridge plaintiff couples will fill out marriage
license applications. They will then go to the Edward Brooke Courthouse
to receive a waiver and return to City Hall to receive licenses from the
Mayor." The historic Arlington Street Church in Boston has
arranged to have a Unitarian Universalist minister
and a Jewish rabbi present to marry couples in
front of the Great Pulpit. All or almost all of the religious events are
sponsored by Unitarian Universalist congregations. 15
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"MFI E-alert," Massachusetts Family Institute, 2003-12-31.
Gary Tuchman, et al', "Massachusetts advances same-sex marriage
ban. Proposed amendment would provide for civil unions," CNN.com,
"FRC's Perkins Responds to Massachusetts Marriage Amendment Vote,"
Family Research Council, 2004-MAR-12, at:
"How legislators voted on the final amendment," The Freedom
to Marry Coalition news release, 2004-MAR-31.
"MFI E-alert," Massachusetts Family Institute, 2004-MAR-30.
Jennifer Peter, "State takes step to ban gay marriage;
Massachusetts plan would legalize civil union but constitutional
amendment still years away."
"Mass. Lawmakers OK Sodomite Unions," CovenantNews.com,
2004-MAR-30. This is a temporary listing.
Terry Phillips, "Massachusetts Clerks Ordered to Marry Gays," Family
News in Focus, 2004-APR-27, at:
Caroyl Lochhead, "Pivotal day for gay
marriage in U.S. nears. Massachusetts move to legalize weddings may
intensify backlash in other states," San Francisco Chronicle,
Michael Foust, "2 courts hearing arguments Wed. in Mass. marriage
case," Baptist Press News, 2004-MAY-11, at: