by John M. Curtis
(310) 204-8700

Copyright February 5, 2004
All Rights Reserved.

hrowing society—and constitutional scholars—for a loop, Massachusetts' High Court ruled Feb. 4 that same-sex couples were legally entitled to civil marriage beginning May 17. Using the 14th Amendment, the Supreme Judicial Court ruled that under the outlawed “separate but equal” doctrine, civil unions and other arrangements were not constitutional under Massachusetts' law. “The history of our nation has demonstrated that separate is seldom, if ever, equal,” declared the majority in a 4-3 decision, referring to the U.S. Supreme Court's 1954 landmark decision of Brown v. Board of Education [Topeka, KS] outlawing segregation and rejecting the “separate but equal” doctrine, permitting school districts to maintain segregation. Applying the obsolete and illegal “separate but equal” idea to civil unions, the Massachusetts' High Court approved same-sex marriage.

      Using brilliant constitutional logic, the Massachusetts' High Court threw a monkey wrench into states' plans for constitutional amendments defining “marriage” as a union between a man and a woman. Gay and Lesbian groups have long argued that banning same-sex civil marriage denies basic civil liberties and constitutional rights. Comparing bans on same-sex marriage to racial discrimination gives a powerful rationale to end such practices. No matter how unpopular or unsavory gay marriage is to some heterosexuals, minority rights trump mob rule. Public opinion polls are no excuse for discrimination. Citing the bible, religion or cultural tradition about the sanctity of heterosexual marriage is also no excuse to treat homosexuals as second class citizens. Approving same-sex unions but not civil marriage raises glaring inconsistencies and problems with federal law.

      Complicating the picture is the constitution's “establishment clause,” creating separation of church and state. Organized religion opposes same-sex unions, citing biblical and religious precedents. Allowing states to frame narrow definitions of marriage invites churches to encroach on civil laws and institutions. Civil marriages establish a legal way to resolve property and child custody disputes. To the extent that marriage represents the ultimate commitment, the government shouldn't ban same-sex partners because they don't fit some arbitrary definition coined under pressure from religious or secular groups. “The very nature and purposes of civil marriage renders unconstitutional any attempt to ban all same-sex couples . . . from entering into civil marriage,” said the High Court, notifying the legislature that any future amendment would be unconstitutional.

      Like skin color, the best scientific evidence indicates that homosexuality represents a divergent developmental path—not an aberration or personal choice. Whites and blacks don't choose skin color. Two-hundred years of civil rights eventually won blacks legal protections against discrimination and segregation. Massachusetts' High Court puts gay marriage and homosexual rights into the context of preventing the majority from writing laws infringing on minority rights. “We've heard from the court but not from the people,” said Massachusetts' Republican Gov. Mitt Romney, asking the High Court to allow the people to decide the fate of gay marriage. Yet majority rule can't trample on the minority's civil liberties and constitutional rights. Gay civil unions fuel the same discrimination preventing same-sex couples from enjoying the rights, and, yes, liabilities of marriage.

      Giving the Massachusetts' legislature six months to create a constitutional amendment, the High Court has already signaled its intent. Thirty-eight states have passed and enacted “defense of marriage” statutes that define marriage as a union between a man and a woman. Under Massachusetts' law and the court's logic, such statutes would be unconstitutional. Constitutional scholars can now make powerful arguments in federal court that current statutes endorse the old “separate but equal” doctrine and violate the 14th amendment. While states' rights have their place, they don't supercede the constitution. According to the Massachusetts' High Court, civil unions violate the 14th amendment's equal protection clause. States, like Ohio, that intend to ban gay marriage and ignore civil unions must limit states' rights and abide by the constitution.

      Opening up a can of worms, the Massachusetts' High Court calls into question current “defense of marriage” statutes, either banning gay marriage or legalizing civil unions. Same-sex unions raise the “separate but equal” doctrine, treating homosexual couples as second class citizens. With its assets and liabilities, same-sex marriage ends the government's role discriminating against gays. “Same-sex couples have the constitutional right to marry under Massachusetts' law,” said Atty. Gen. Tom Reilly, notifying the legislature that attempts to define marriage would be regarded as unconstitutional. Former Vermont Gov. and Democratic presidential candidate Howard Dean—who signed the nation's first civil union law—missed the point, saying the issue “is none of federal government's business.” If the Massachusetts' High Court is right, gay marriage is already protected by the constitution.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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