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The constitutional amendment.
Events leading up to marriage equality

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2004-FEB-02: Court confirms that same-sex marriage is the only constitutional option:

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.

Some responses:


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."

bullet 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."
bullet 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."
bullet 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 partial-birth abortion."
bullet 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."
bullet 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."
bullet 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."
bullet 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 judges." 16

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.

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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.

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2004-MAR-11: Legislators approve resolutions:

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:

bullet Marriage would be limited to one man and one woman.
bullet 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.
bullet 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 (probably 2006-NOV).

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. 2,3

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. 4

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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:

bullet 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.
bullet 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
bullet 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." 5 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 children.

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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.

bullet 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:
bullet 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'."
bullet Conservative religious leaders in the state seem at odds over whether state employees should obey the law:
bullet 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."
bullet 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." 9
bullet 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.
bullet 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.
bullet 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." 10
bullet 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
bullet 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.
bullet 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 relief." 12,13
bullet 2004-MAY-14: Liberty 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
bullet Also on MAY-14, the Massachusetts Family Institute, the Heritage Alliance, 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 "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 minority couples.
bullet 2004-MAY-15: Liberty 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
bullet 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

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "MFI E-alert," Massachusetts Family Institute, 2003-12-31.
  2. Gary Tuchman, et al', "Massachusetts advances same-sex marriage ban. Proposed amendment would provide for civil unions,", at:
  3. "Amendment defining marriage still alive," Massachusetts Family Institute, at:
  4. "FRC's Perkins Responds to Massachusetts Marriage Amendment Vote," Family Research Council, 2004-MAR-12, at:
  5. "How legislators voted on the final amendment," The Freedom to Marry Coalition news release, 2004-MAR-31.
  6. "MFI E-alert," Massachusetts Family Institute, 2004-MAR-30.
  7. Jennifer Peter, "State takes step to ban gay marriage; Massachusetts plan would legalize civil union but constitutional amendment still years away."
  8. "Mass. Lawmakers OK Sodomite Unions,", 2004-MAR-30. This is a temporary listing.
  9. Terry Phillips, "Massachusetts Clerks Ordered to Marry Gays," Family News in Focus, 2004-APR-27, at:
  10. 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, 2004-MAY-2, at:
  11. Michael Foust, "2 courts hearing arguments Wed. in Mass. marriage case," Baptist Press News, 2004-MAY-11, at:
  12. "Path Clear for Same-Sex Marriages in Mass.,", 2004-MAY-15, at:
  13. "Marriage in Massachusetts Update," Massachusetts Family Institute E-Alert, 2004-MAY-14.
  14. Pete Winn, "May 17 signals 'A New Day'," Citizen Link, Focus on the Family, 2004-MAY-14.
  15. "Marriage Week Festivities,", at: (This may be a temporary listing).
  16. Jeff Gannon, "Massachusetts Ruling Heats Up Battle Over Gay Marriage," Talon News, 2004-FEB-05, at:

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Copyright 2002 to 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2002-APR-6
Latest update: 2005-SEP-13
Author: B.A. Robinson

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