The Massachusetts Supreme Judicial Court ruled Tuesday that same-sex couples are legally entitled to wed under the state constitution thereby striking down a state ban on same-sex marriages. The court said the state was violating its own state constitution by denying the "legal, financial and social benefits of marriage" to people of the same sex who wish to marry.
Renee Landers, president of the Boston Bar Assocation, said in a statement that "today's decision represents a landmark civil rights victory, saying that a pervasive and intolerable source of discrimination against gay people clearly violates our State Constitution."
Landers was online Tuesday, Nov. 18 at 2:30 p.m. ET to discuss the ruling.
A transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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washingtonpost.com:
Our guest will begin shortly. Please stay with us.
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washingtonpost.com:
Renee Landers, thank you for being with us today. Please explain what comes next now that the Massachusetts Supreme Court has ruled against the state ban on same-sex marriage.
Renee Landers: The Supreme Judicial Court's opinion essentially gives the legislature 180 days to enact amendments to Massachusetts statutes that would give effect to the court's opinion, that is, to recognize marriage in order to eliminate discriminations that attach to couples who are not permitted to marry. If the legislature does not enact appropriate amendments to the statutes within that time period, the Superior Court(the state trial court) would have the ability to enter an order implementing the SJC opinion. After 180 days, as a result of either legislative action or an order by the Superior Court, marriage licenses should begin to be granted to same-sex couples.
Another possibility would be for the legislature to begin the lengthy process for amending the state constitution to overrule the court's opinion. The process for amending the constitution calls for two successive legislatures to vote favorably on an amendment and for that amendment to be submitted to the voters after the legislative action is completed. At a minimum, this process takes 3 years. The earliest such an amendment could appear on the state ballot would be November 2006.
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Washington, D.C.:
I'm curious how the civil union concept will work if other states that don't have this kind of law don't have to honor it. Or is this the beginning of a snowball effect in all the states, which will bring about a tide of change all over the country?
Do you see a possible to challenge this ruling or is this the final word?
Renee Landers: Because the Supreme Judicial Court based its decision on the state constitution, it would not be possible for the federal courts to overrrule the decision. State courts can read more expansive rights into state constitutions than courts have found under federal law. The U.S. Supreme Court would have to declare same-sex marriage as prohibited by the U.S. Constitution in order to overturn the SJC order.
U.S. Constitution requires states to recognize the valid actions of other states. A marriage recognized in one state should be entitled to recognition in other states.
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Cambridge, Mass.:
In terms of sorting out the practical effect of the ruling, what will happen if the General Court fails to act within 180 days? Seems like the ruling will kick in, the common-law definition of marriage will change and same-sex marriage will finally become a reality.
For opponents of same-sex marriage, will this require them to pass a constitutional amendment or just a new statute?
Renee Landers: The last sentence of your question contains the answer. In order to avoid the impact of the SJC decision--which seems to require the state to grant the ability to marry to same-sex couples--the state would need to adopt an amendment to the state constitution. This process takes a minimum of three years to complete. Two successive state legislatures must adopt the proposed amendment and then the proposed amendment must be submitted to the voters for approval.
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Washington, D.C. - Stanton Park:
It was interesting how much today's decision referred to the Virginia case from 1967 where Virginia was attempting to keep interracial marriage illegal. I personally see a lot of parallels, and I found it reassuring that today's decision specifically asked how allowing same-sex couples to marry supposedly weakened mixed-gender marriages. After all, a lot of people claimed mixed-race marriages would weaken the institution of marriage. But it would appear that divorce, adultery, both spouses having to work, etc., are still the primary marriage weakeners, not mixed race couples or same gender couples.
Renee Landers: I agree that the U.S. Supreme Court's ruling in the Loving v. Virginia case is a good precedent for the Massachusetts case decided today. The pressures of life today--the demands of the workplace and the of traditional social supports for working parents such as adequate time off to tend to family obligations and lack of affordable day care--contribute to dissolution of marriages. What the law says about who can marry has very little to do with whether individuals make good choices in their lives.
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Provo, Utah:
It appears that district courts in the last several months have been stepping out of their bounds. Rather than declaring constitutionality of laws, they are actually trying to make their own law and push their own opinions into general acceptance through case decisions. To what end do you agree with this perception?
Renee Landers: I do not agree with the assertion. Decisions about the constitutionality of laws inherently call on courts to make "policy" determinations at some level. Our legal system was organized by the Founders to have the courts act in a manner to protect the rights of individuals from discrimination by majorities who disagree with their positions. This system has functioned well to protect the rights of African-Americans and other racial minorities, religious minorities, and women. While I, too, do not always agree with the decisions courts reach in these sorts of cases, I think having the ability to appeal to a nonelected branch of government to vindicate rights that the popular majority fails to respect is very important to the health of our country's system of government.
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Washington, D.C.:
What would happen if the legislature simply does nothing or votes to put an amendment before the voters in 2006 banning gay marriage? Would the courts demand the issuance of marriage licences after 180 days have passed?
Renee Landers: I think that the clear instruction in the court's opinion is that the Superior Court should issue an order to permit the granting of marriage licenses to same-sex couples if the legislature does not enact a statute to implement the decision within 180 days.
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Washington, D.C.:
Hello,
I fully support the court ruling and am excited about its potential. I am not gay, but I believe that the gay community deserves the rights of all others under the constitution. Kudos to the judge for appropriately separating church from state and granting equal rights to all people. Finally someone is chiseling away at the hypocrisy that exists in our government. Following in the footsteps of other hard fought civil rights cases, the ruling shows that the popular choice is not always the correct choice. I only hope that this is upheld and elevated to national law. What are the chances that this ruling will be reversed?
Renee Landers: Because the decision was based on the state constitution, the only way the decision could be overturned by a federal court would be for the U.S. Supreme Court to declare that same-sex marriage is not permitted by the federal constitution. I don't think that such a result is likely.
The citizens of Massachusetts could adopt a constitutional amendment overruling the court's opinion. That process takes a minimum of three years. The process requires two successive state legislatures to act favorably on a proposed amendment and for the voters to approve the amendment.
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Washington, D.C.:
This ruling is a great victory for gay men and lesbians.
The state of Vermont has not fallen apart because gay couples can form civil unions, and neither will Massachusetts.
Renee Landers: Same-sex couples are living in committed relationships and raising families now. The ruling only gives these families the same rights that families headed by married couples have. Nothing will change about the way people go about their daily lives.
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Fairfax, Va.:
What's the difference between "civil union" and marriage?
Renee Landers: A "civil union" would not be a "marriage" in the sense the law has traditionally described. A"civil union" confers state recognition on certain relationships, perhaps making people involved in such relationships eligible for certain rights under state law. The "civil union" would not substitute for marriage--laws that confer rights on persons because of marriage would not necessarily confer those rights on persons involved in "civil unions". Further, other states may not be required to recognize "civil unions" granted by a state and certain federal benefits apply only to married persons. Thus, civil unions correct some of the discrimination same-sex couples face, but not all of the problems.
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Gaithersburg, Md.:
My father has two sisters. One never married. The other has been divorced for 20 years and lived with my other aunt ever since. (They're about 70 now).
For just about any practial purpose, their living together arrangement is just like a marriage, and would seem a reasonable candidate to enjoy the "legal, financial and social benefits of marriage," like insurance and income taxes.
They're not gay, though. If they lived in Massachesettes, would this kind of same-sex partnering be relevant under this ruling?
Renee Landers: No. The court did not attempt to recognize persons not involved in marriage-like relationships. Interesting possibilities raised by the question.
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Boston, Mass.:
The court's decision does not mandate that any organized religion recognize a gay marriage, correct? So the Catholic Church and other denominations are not bound in any sense by the ruling? They can refuse to sanction gay marriages?
Renee Landers: The court decision only addresses the need for the state to recognize same-sex marriage--the court uses the term "civil marriage" to distinguish state recognition from religious recognition. The concept of "separation of church and state" embodied in the First Amendment to the federal Constitution and in state constitutions would prevent courts from ordering religious organizations from recognizing arrangements with which the religion disagrees on religious grounds. The Catholic Church and other denominations will not be required to recognize or perform same-sex marriages as a result of this ruling.
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Washington, D.C.:
I am an attorney in a long term relationship with an alien whose work visa will expire in eight months. We are currently in the process of moving to Canada. Do you think this ruling will provide some hope that at some point gay binational couples will not be forced to leave the U.S. if they wnat to spend their lives together?
Renee Landers: Yes, I think there is hope. Time will only tell whether all states will eventually adopt the position taken by the Massachusetts court.
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Boston, Mass.:
This decision seems broader than the Vermont case in 1999. Would Vermont-style civil unions satisfy the Court's requirements, or is a "separate-but-equal" path to the same legal rights not sufficient here?
Renee Landers: I think that the language and spirit of the Massachusetts decision strongly indicate that civil unions do not eliminate all the discriminations that favor opposite-sex marriages. Depending on the legislature's action in response, litigation might develop this point more specifically. That is, if the legislature tries to respond to the court decision by eliminating the discriminations or by creating a civil marriage status, I am sure that that approach will be challenged.
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Maryland:
I think the thing that made me change my mind about this issue was the realization that "marriage" has two aspects -- one is the civil recognition (the license and other bureaucratic, state-required stuff) and the other (optional) is the religious recognition (ceremonies performed by clergy). I think once you differentiate those, it is clear that you really can't deny the right to civil recognition of a marriage to anyone. A religion can still not recognize same-sex marriage, and can refuse to perform them (just as some religions won't recognize mixed-religion marriages and will refuse to perform them) but the state should not have that right.
Renee Landers: Agreed.
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Manassas, Va.:
As a gay man I worry that this ruling will further erode support for gay rights and tolerance throughout the country. It is easy for many gay rights advocates to see this as a landmark civil rights victory, but many of them live in very liberal areas. Most of the country, especially in the south, is still very intolerant of homosexuality because they don't understand it and find it disturbing and perverse. They then use the bible to hide behind their prejudices. It seems to me that homosexuals should be looking to give society a greater understanding of who they are and that being gay is not a choice before they try to change the institution of marrige. I personally would like to see something more along the lines of civil unions in the future. Maybe my views are naive, but how do you see this ruling benefiting the gay population at large in the long run?
Renee Landers: I am sure that a great many people saw the U.S. Supreme Court's ruling in 1967 in Loving v. Virginia, stating that prohibitions on inter-racial marriages were unconstitution, in the same way given the societal prejudices of the time. Those societal prejudices and disapprovals of inter-racial marriages continue to exist today. The role of the courts is to allow individuals to exercise their rights despite the operation of irrational majoritarian prejudices. There have always been questions about how much the courts should force changes in behavior, if not actual attitudes. Another example is in the area of abortion rights. Some say the U.S. Supreme Court's decision in Roe v. Wade prompted a backlash against the abortion rights movement. Because the decision is unpopular is not a reason for courts to allow discrimination to continue. The point of our political system is for the courts to serve as a buffer against discrimination.
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Renee Landers: Thank you for the provocative and thoughtful questions. I have really enjoyed participating in this discussion.
Renee Landers
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