Same-sex marriage has been legally recognized in Massachusetts since May 17, 2004, as a result of the Massachusetts Supreme Judicial Court (SJC) ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Constitution of Massachusetts to allow only opposite-sex couples to marry. Massachusetts was the sixth jurisdiction in the world to legalize same-sex marriage after the Netherlands, Belgium, Ontario, British Columbia, and Quebec. It was the first U.S. state to open marriage to same-sex couples.
Legal history
Background In 1989, passing legislation first proposed in 1973, Massachusetts prohibited discrimination based on sexual orientation in credit, public and private employment, union practices, housing, and public accommodation. In the decade that followed, political debate addressed same-sex relationships through two proxy issues: spousal benefits and parenting rights. The Boston City Council debated health insurance for the same-sex partners of city employees in May 1991, and Cambridge began providing health benefits to the same-sex partners of its employees the following year. In 1992, Governor Bill Weld issued an executive order providing limited benefits to the same-sex partners of approximately 3,000 management-level state employees, covering only leave for family sickness and bereavement, far short of the health benefits LGBT activists were seeking, but probably the first state-level recognition of same-sex relationships. The Roman Catholic bishops of Massachusetts, replying in The Pilot, the newspaper of the Boston Archdiocese, said that Weld's "domestic partners" decision harms the common good "by making a special interest group equal to the family" and confuses "civil rights and family benefits". They asked: "Why should special recognition and assistance be given to friends who happen to share the same house?" Legislation to establish domestic partnerships that would carry spousal benefits was introduced annually in the Massachusetts General Court without success. Its supporters focused on equal benefits and fairness rather than same-sex relationships themselves. In 1998, when the General Court passed a home rule petition allowing Boston to create such a status, Governor Paul Cellucci vetoed it because it applied to different-sex couples, which he thought undermined marriage, while he offered to sign legislation that applied to same-sex couples only. Mayor Thomas Menino's attempt to extend health care benefits to Boston city employees' domestic partners by executive order was successfully challenged by the Catholic Action League in court.
The state had no explicit regulations with respect to foster care and parenting by gays and lesbians, either singly or in relationships, until, on May 24, 1985, the state Department of Social Services, with the approval of Governor Michael Dukakis, created a rule that foster children be placed in "traditional family settings". In December 1986, a commission that reviewed the foster care system recommended that sexual orientation could not be used to disqualify foster parents. As Dukakis delayed accepting that recommendation, advocates for gay and lesbian rights threatened protests against his presidential campaign. The ban on gay foster parents was enacted into law in the 1989 budget. After a lawsuit challenging the ban was settled out of court, the Dukakis administration withdrew the policy in April 1990. In the 1990s, court decisions further expanded the parenting rights of gays and lesbians. In September 1993, the state's highest court ruled that state law allowed for second-parent adoption by a parent of the same sex as a biological parent. In July 1999, the same court awarded visitation rights to each of two mothers after their separation.
Same-sex marriage itself was rarely mentioned or addressed directly during these years. The Coalition for Lesbian and Gay Civil Rights launched a campaign on behalf of marriage rights for same-sex couples in Massachusetts in 1991. Governor Bill Weld said he would be willing to meet with the group and said he was undecided on the question. When asked about "gay marriage" while running to represent Massachusetts in the U.S. Senate in 1994, Mitt Romney said: "it is not appropriate at this time". In December 1996, considering the possibility of Hawaii legalizing same-sex marriage, Weld said that Massachusetts would recognize the validity of same-sex marriages licensed there. He called the Defense of Marriage Act (DOMA) unconstitutional.
Protection of Marriage Amendment In December 1998, Representative John H. Rogers, a Democrat, proposed legislation to prevent Massachusetts from granting legal recognition to same-sex marriages established elsewhere: "a purported marriage contracted between persons of the same sex shall be neither valid nor recognized in the Commonwealth." In 1999, the Lesbian and Gay Political Alliance of Massachusetts called it a "hate bill" and a coalition of more than 150 religious leaders formed the Religious Coalition for the Freedom to Marry to oppose it. Other religious leaders organized in support of the measure. Rogers revised his proposal to define marriage as "the union of a man and a woman" when he offered it again in 2001, with the additional provision that "Any other relationship shall not be recognized as a marriage, or its legal equivalent, or receive the benefits exclusive to marriage in the Commonwealth." The chair of the Lesbian and Gay Political Alliance of Massachusetts said its prospects for passage were slim but it could serve as a countervailing proposal to efforts at establishing civil unions or providing benefits to same-sex partners of state and local government employees. Alongside these legislative maneuvers, the Gay & Lesbian Advocates & Defenders (GLAD) filed a lawsuit in state court challenging the denial of marriage rights to same-sex couples in April 2001.
In July 2001, Massachusetts Citizens for Marriage announced a campaign to amend the Constitution of Massachusetts with language similar to Rogers' legislation, called the "Protection of Marriage Amendment". Some signature gatherers complained that opponents of the amendment were harassing them and their opponents charged in turn that some signature gatherers were misrepresenting the petition's content. A sufficient number of signatures were certified in December.
The President of the Massachusetts Senate controls the calling of a constitutional convention and its agenda. Senate President Tom Birmingham, an opponent of the amendment, called a joint meeting of the General Court as a constitutional convention for June 19, 2002, and immediately adjourned it for a month saying legislators needed for time to consider the agenda items. When the constitutional convention met again on July 17, the amendment's opponents knew that proponents had the 50 votes needed for passage. Birmingham, who was presiding, moved for adjournment without considering the amendment, and his motion passed 137 to 53. He called the amendment "wrong-hearted and wrong-headed" and defended the procedure: "Everybody recognizes a vote to adjourn was a vote up or down" on the amendment. "I did gavel the last constitutional convention to a recess because I felt the members needed more time to assess... Today we saw democracy in action. They may not like it, but they lost two to one." A representative of the Catholic Action League, which supported the amendment, said: "Everything that is wrong with Massachusetts state government was apparent today for all the world to see". One legislator who voted to adjourn said: "For those of us who believe in an open democratic process, this was not a comfortable vote". State Senator Cheryl A. Jacques, an opponent of the amendment and a lesbian, said: "I'm proud to have done anything possible to defeat this hate-filled, discriminatory measure. I'll take a victory on this any way I can get it." Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus later explained it was a critical moment because same-sex marriage had no chance of winning a popular vote at the time: "Not that we would lose by a little, because that wasn't an issue. Rather, it was that we were going to get massacred".
In April 2003, a committee of the General Court held a hearing on the constitutional amendment, but took no action. The four Roman Catholic bishops of Massachusetts, long distracted by the revelations of the sexual abuse of minors by priests, did not address the issue until late May, when they ordered pastors to read and publish a statement to mobilize their parishioners to contact their legislators to urge then to support the constitutional amendment.
Goodridge v. Department of Public Health
Seven same-sex couples represented by Gay & Lesbian Advocates & Defenders (GLAD) initiated a lawsuit in state court, Goodridge v. Department of Public Health, on April 11, 2001. GLAD attorney, Jennifer Levi, argued the case in Superior Court on behalf of the plaintiffs. Levi argued that denying same-sex couples equal marriage rights was unconstitutional under the State Constitution. On May 7, 2002, Suffolk County Superior Court Judge Thomas E. Connolly ruled that the state marriage statute was not gender-neutral, no fundamental right to same-sex marriage existed, and that limiting marriage to male-female couples was rational because "procreation is marriage's central purpose". He concluded his legal analysis by saying that the issue should be handled by the General Court.
The plaintiffs appealed directly to the Supreme Judicial Court (SJC), which heard arguments on March 4, 2003. Mary Bonauto of GLAD argued the case for the plaintiffs. Assistant Attorney General Judith Yogman represented the Massachusetts Department of Public Health. On November 18, 2003, the SJC ruled 4 to 3 that the state's ban on same-sex marriage was unconstitutional. The court said: "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." It provided a definition of marriage that would meet the State Constitution's requirements: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." The court stayed its ruling for 180 days (i.e. until May 17, 2004) to allow the General Court to "take such action as it may deem appropriate in light of this opinion." In a widely quoted passage from the majority ruling, Chief Justice Margaret Marshall wrote:
Governor Mitt Romney said he disagreed with the SJC's decision, but "We obviously have to follow the law as provided by the Supreme Judicial Court, even if we don't agree with it". He said he would work with the General Court to draft a law "consistent" with the ruling. He also backed an amendment to the State Constitution to define marriage as "the union of a man and a woman" while also providing by statute "basic civil rights and appropriate benefits to same-sex couples and other nontraditional relationships." Romney quickly joined legislators in attempting to satisfy the Goodridge decision by creating civil unions for same-sex couples. His views were recognized as an attempt to establish his record on a controversial issue while planning to run for the Republican nomination for president. Former Governor Weld took credit for laying the groundwork for the decision: "A lot of the stuff we did foreshadowed the opinion." He said: "It is a thunderbolt, but a thunderbolt correctly heard."