Stupid Associated Press.

[eruthros]

I swear, I've had to tell maybe twenty people now that the Massachusetts Supreme Judicial Court decision is not the same as the Vermont decision. Because the AP said it is. And didn't even quote a single actual lawyer or law group. So there are all these people telling me "no, really, it's just saying that gay marriage is not unconstitutional, it's not saying anyone has to do anything." And people saying "oh, it's just like the Vermont case, and it'll just end up being civil unions."

This is a different case. The MSJC said different things. And this looks like it might actually happen.

See m_shell's summary and favorite quotes from multiple articles.

The Christian Science Monitor article.

The interview with Renee Landers, President of the Boston Bar Association in the Washington Post.

The NYTimes.com article, which features this telling phrase: "But the court gave the Legislature six months to comply with its decision." Note the word comply. Just sayin'. (NYTimes.com requires free registration.)

The current AP wire article, which doesn't admit that their first article was wrong, and is still a little negative, but does actually quote some lawyers. And more-or-less supports what all the lawyers in other articles were saying. Except for the part about the way the Massachusetts Constitution can't be changed before 2006. Better than the first article, but still kinda missing a lot of stuff.

And, if you care, the official ruling, in .pdf format. I suggest not reading the dissenting opinions, as they may make you ill.



"As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare."

"The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage."

I really like this paragraph: "The judge in the Superior Court endorsed the first rationale, holding that 'the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation.' This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. ... People who cannot stir from their deathbed may marry. ... While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage."

"Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

"The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. 'The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.' Palmore v. Sidoti, 466 U.S. 429, 433 (1984)"

This is the actual decision: "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. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

And this, explaining in nice plain English why the Federal Government cannot legislate against this ruling: "Fundamental to the vigor of our Federal system of government is that 'state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.' Arizona v. Evans, 514 U.S. 1, 8 (1995).18"

ETA: Bush's reponse to this ruling is:
STATEMENT BY THE PRESIDENT

Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.

Unless those congressional leaders are able to pass that anti-gay constitutional amendment (when they can't even pass reasonably non-controversial things), or are able to change the appointments to the Supreme Court so it's filled with people who don't care what the Constitution says, I fail to see what they're going to do about this. But if he wants to while away the next six months arguing with them, fine by me. sighs

Comments

[miggy.livejournal.com]

I love the bits about fertility not being the basis for modern marriage. I'm a heterosexual woman who may be infertile, and even if I'm not, I'm not having any kids (a decision now shared by roughly 25% of American women of childbearing age). By these people's logic, I should be denied the right to marry a man because I won't pop out kids afterwards. Bet they'd just hem and haw that away if I confronted them with it, though.

[eruthros]

Oh, they absolutely would. I really don't understand why people are still using that as their reason for being against gay marriage; you'd think the number of example cases of marriage without procreation would have let them know that that was maybe a little... archaic. But, you know, women's place is in the kitchen poppin' out babies, or what's marriage for, anyway?

The Massachusetts Dept. of Public Health came up with three reasons why same-sex couples shouldn't be allowed to marry:

1) Procreation is the basis of marriage.
2) We need to protect the children
3) We need to keep the money rollin' in, so we can't grant them marriage rights, or we won't get as much tax money. Plus same-sex couples are always really really rich and don't need the economic advantages of marriage. (I kid you not.)

It's hard to know which one is most ridiculous... especially since Massachusetts lets gay couples adopt...

[planetdracula.livejournal.com]

Of course I celebrate the court's wonderful ruling, but the dissents don't seem as fire-and-brimstone as I thought they'd be when I read your comment regarding them - the one that raised my hackles most was the one that wanted to refer the matter to the legislature, which seems a sneaky way of saying "no senator/congressman who wants to get reelected would have made the decision this court made." But otherwise, while I disagree vociferously with them, the dissenters seem to make their cases not from some "gay people are bad!" line but from an errant, but still tenable, constitutional original-intent standpoint.

I dunno, I'm just all about humanizing the opposition, which might discourage (some of) them from dehumanizing us.

[eruthros]

Oh, good lord no. I didn't mean that at all. I just get really frustrated by people legaleseing (hmmm... I seem to have made that word up, and I still can't decide how to spell it) their way around an "everyone is free to marry! as long as you marry someone of the opposite sex. And that's not discrimination at all!" (The whole idea that prohibiting same-sex sodomy doesn't discriminate against homosexuals because it applies to heterosexuals as well is sort of in the same vein.)

I just really don't see how people can say that a prohibition against same-sex marriage affects both heterosexuals and homosexuals the same way and doesn't discriminate against homosexuals because of course they have the choice to marry if they want to. Probably because I don't see homosexuality as a choice, and I think lots of people who see gay marriage / legislation against same-sex sodomy as non-discriminatory do. Still.

And I also don't see how people can honestly believe that merely because a thing is historical it is morally or legally right. So arguments that go on about how marriage has always been defined as between a man and a woman frustrate me as well, because people made the same comments about the anti-anti-miscegenation rulings, and about labor unions, and women getting the vote, and so on.

But you're right. Even the dissenting opinions that say things like "those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries" are being really polite about that view.