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- American Civil Liberties Union - Association of American Law Schools - Boston Queer Asian Pacific Alliance - Community United Against Violence - Fenway Community Health Center - Gay & Lesbian Advocates & Defenders - Gender Public Advocacy Coalition - International Association of Lesbian & Gay Judges - International Gay & Lesbian Human Rights Comm. - International Lesbian & Gay Association - Lambda Legal Defense & Education Fund - Massachusetts Chapter of Gender Education &
Advocacy - Massachusetts Lesbian & Gay Bar Association - National Center for Lesbian Rights - National Gay & Lesbian Task Force - National Latina/o LGBT Organization |
HILLARY GOODRIDGE & others
vs. DEPARTMENT OF PUBLIC HEALTH SUPREME JUDICIAL COURT OF
MASSACHUSETTS 440 Mass. 309; 798 N.E.2d 941 Decided: MARSHALL, C.J. Marriage is a vital social institution.
The exclusive commitment of two individuals to each other nurtures love and
mutual support; it brings stability to our society. For those who choose to
marry, and for their children, marriage provides an abundance of legal,
financial, and social benefits. In return it imposes weighty legal,
financial, and social obligations. The question before us is whether,
consistent with the Massachusetts Constitution, the Commonwealth may deny the
protections, benefits, and obligations conferred by civil marriage to two individuals
of the same sex who wish to marry. We conclude that it may not. The
Massachusetts Constitution affirms the dignity and equality of all
individuals. It forbids the creation of second-class citizens. In reaching
our conclusion we have given full deference to the arguments made by the
Commonwealth. But it has failed to identify any constitutionally adequate
reason for denying civil marriage to same-sex couples. We are mindful that our decision marks a change in the
history of our marriage law. Many people hold deep-seated religious, moral,
and ethical convictions that marriage should be limited to the union of one
man and one woman, and that homosexual conduct is immoral. Many hold equally
strong religious, moral, and ethical convictions that same-sex couples are
entitled to be married, and that homosexual persons should be treated no
differently than their heterosexual neighbors. Neither view answers the
question before us. Our concern is with the Massachusetts Constitution as a
charter of governance for every person properly within its reach. "Our
obligation is to define the liberty of all, not to mandate our own moral
code." Lawrence v. Texas, 539
U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472, 2480 (2003) (Lawrence),
quoting Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992). Whether the Commonwealth may use its formidable
regulatory authority to bar same-sex couples from civil marriage is a
question not previously addressed by a Massachusetts appellate court. n3 It
is a question the United States Supreme Court left open as a matter of
Federal law in Lawrence, supra at
2484, where it was not an issue. There, the Court affirmed that the core
concept of common human dignity protected by the Fourteenth Amendment to the
United States Constitution precludes government intrusion into the deeply
personal realms of consensual adult expressions of intimacy and one's choice
of an intimate partner. The Court also reaffirmed the central role that decisions
whether to marry or have children bear in shaping one's identity. Id. at 2481. The Massachusetts Constitution
is, if anything, more protective of individual liberty and equality than the
Federal Constitution; it may demand broader protection for fundamental
rights; and it is less tolerant of government intrusion into the protected
spheres of private life. n3 For American appellate courts
that have recently addressed this issue, see
Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003); Dean v. District of Columbia, 653 A.2d
307 (D.C. 1995); Baehr v.
Lewin, 74 Haw. 530, 852 P.2d 44 (1993);
Baker v. State, 170 Vt. 194, 242, 744 A.2d 864 (1999). Earlier
cases include Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980), aff'd, 673 F.2d 1036 (9th Cir.), cert.
denied, 458 U.S. 1111, 73 L. Ed. 2d
1373, 102 S. Ct. 3494 (1982); Jones
v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973); Baker v. Nelson, 291 Minn. 310, 191
N.W.2d 185 (1971), appeal dismissed,
409 U.S. 810, 34 L. Ed. 2d 65, 93 S. Ct. 37 (1972); Singer v. Hara, 11 Wn. App. 247, 522
P.2d 1187 (1974). See also Halpern v. Toronto (City), 172 O.A.C. 276
(2003); Egale Canada, Inc. v. Canada (Attorney Gen.), 13 B.C.L.R. (4th) 1
(2003). Barred access to the protections, benefits, and obligations
of civil marriage, a person who enters into an intimate, exclusive union with
another of the same sex is arbitrarily deprived of membership in one of our
community's most rewarding and cherished institutions. That exclusion is
incompatible with the constitutional principles of respect for individual
autonomy and equality under law. I The plaintiffs are fourteen individuals from five
Massachusetts counties. As of April 11, 2001, the date they filed their
complaint, the plaintiffs Gloria Bailey, sixty years old, and Linda Davies,
fifty-five years old, had been in a committed relationship for thirty years;
the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade,
fifty-two years old, had been in a committed
relationship for twenty years and lived with their twelve year old
daughter; the plaintiffs Hillary Goodridge, forty-four years old, and Julie
Goodridge, forty-three years old, had been in a committed relationship for
thirteen years and lived with their five year old daughter; the plaintiffs
Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years
old, had been in a committed relationship for thirteen years and lived with
their eight year old daughter and Richard's mother; the plaintiffs Heidi
Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been
in a committed relationship for eleven years and lived with their two sons,
ages five years and one year; the plaintiffs Michael Horgan, forty-one years
old, and Edward Balmelli, forty-one years old, had been in a committed
relationship for seven years; and the plaintiffs David Wilson, fifty-seven
years old, and Robert Compton, fifty-one years old, had been in a committed
relationship for four years and had cared for David's mother in their home after
a serious illness until she died. The plaintiffs include business executives, lawyers, an
investment banker, educators, therapists, and a computer engineer. Many are
active in church, community, and school groups. They have employed such legal
means as are available to them -- for example, joint adoption, powers of
attorney, and joint ownership of real property -- to secure aspects of their
relationships. Each plaintiff attests a desire to marry his or her partner in
order to affirm publicly their commitment to each other and to secure the
legal protections and benefits afforded to married couples and their
children. The Department of Public Health (department) is charged
by statute with safeguarding public health. See G. L. c. 17. Among its
responsibilities, the department oversees the registry of vital records and
statistics (registry), which "enforces all laws" relative to the
issuance of marriage licenses and the keeping of marriage records, see G. L.
c. 17, § 4, and which promulgates
policies and procedures for the issuance of marriage licenses by city and
town clerks and registers. See, e.g., G. L. c. 207, § § 20, 28A, and 37. The registry is headed by
a registrar of vital records and statistics (registrar), appointed by the
Commissioner of Public Health (commissioner) with the approval of the public
health council and supervised by the commissioner. See G. L. c. 17, § 4. In March and April, 2001, each of the plaintiff couples
attempted to obtain a marriage license from a city or town clerk's office. As
required under G. L. c. 207, they completed notices of intention to marry on
forms provided by the registry, see G. L. c. 207, § 20, and presented these forms to a
Massachusetts town or city clerk, together with the required health forms and
marriage license fees. See G. L. c. 207, §
19. In each case, the clerk either refused to accept the notice of
intention to marry or denied a marriage license to the couple on the ground
that Massachusetts does not recognize same-sex marriage. n4, n5 Because
obtaining a marriage license is a necessary prerequisite to civil marriage in
Massachusetts, denying marriage licenses to the plaintiffs was tantamount to
denying them access to civil marriage itself, with its appurtenant social and
legal protections, benefits, and obligations. n6 n4 General Laws c. 207, § 37, provides: "The commissioner of
public health shall furnish to the clerk or registrar of every town a printed
list of all legal impediments to marriage, and the clerk or registrar shall
forthwith post and thereafter maintain it in a conspicuous place in his
office." The record does not reveal whether any of the clerks' offices
that considered the plaintiffs' applications for a marriage license had
posted such a list of impediments, or whether such list included as an
impediment that the applicants are of the same sex. n5 The plaintiffs alleged that they met all
of the facial qualifications to obtain marriage licenses pursuant to G. L. c.
207, and the department does not contest this assertion. n6 The complaint alleged various
circumstances in which the absence of the full legal protections of civil
marriage has harmed them and their children. For example, Hillary and Julie
Goodridge alleged that, when Julie gave birth to their daughter (whom Hillary
subsequently coadopted) during a delivery that required the infant's transfer
to neonatal intensive care, Hillary "had difficulty gaining access to
Julie and their newborn daughter at the hospital"; Gary Chalmers and
Richard Linnell alleged that "Gary pays for a family health insurance
policy at work which covers only him and their daughter because Massachusetts
law does not consider Rich to be a 'dependent.' This means that their
household must purchase a separate individual policy of health insurance for
Rich at considerable expense. . . . Gary has a pension plan at work, but
under state law, because he is a municipal employee, that plan does not allow
him the same range of options in providing for his beneficiary that a married
spouse has and thus he cannot provide the same security to his family that a
married person could if he should predecease Rich." On April 11, 2001, the plaintiffs filed suit in the
Superior Court against the department and the commissioner seeking a judgment
that "the exclusion of the plaintiff couples and other qualified
same-sex couples from access to marriage licenses, and the legal and social
status of civil marriage, as well as the protections, benefits and
obligations of marriage, violates Massachusetts law." See G. L. c. 231A.
The plaintiffs alleged violation of the laws of the Commonwealth, including
but not limited to their rights under arts. 1, 6, 7, 10, 12, and 16, and Part
II, c. 1, § 1, art. 4, of the
Massachusetts Constitution. n7, n8 n7 Article 1, as amended by art.
106 of the Amendments to the Massachusetts Constitution, provides: "All people are born free and equal
and have certain natural, essential and unalienable rights; among which may
be reckoned the right of enjoying and defending their lives and liberties;
that of acquiring, possessing and protecting property; in fine, that of
seeking and obtaining their safety and happiness. Equality under the law
shall not be denied or abridged because of sex, race, color, creed or
national origin." Article 6 provides: "No man,
nor corporation, or association of men, have any other title to obtain
advantages, or particular and exclusive privileges, distinct from those of
the community, than what arises from the consideration of services rendered
to the public . . . ." Article 7 provides:
"Government is instituted for the common good; for the protection,
safety, prosperity, and happiness of the people; and not for the profit,
honor, or private interest of any one man, family or class of men: Therefore
the people alone have an incontestable, unalienable, and indefeasible right
to institute government; and to reform, alter, or totally change the same,
when their protection, safety, prosperity and happiness require it." Article 10 provides, in relevant
part: "Each individual of the society has a right to be protected by it
in the enjoyment of his life, liberty and property, according to standing
laws . . . ." Article 12 provides, in relevant
part: "No subject shall be . . . deprived of his property, immunities,
or privileges, put out of the protection of the law . . . or deprived of his
life, liberty, or estate, but by the judgment of his peers, or the law of the
land." Article 16, as amended by art. 77
of the Amendments, provides, in relevant part "The right of free speech
shall not be abridged." Part II, c. 1, §
1, art. 4, as amended by art. 112, provides, in pertinent part, that
"full power and authority are hereby given and granted to the said
general court, from time to time, to make, ordain, and establish all manner
of wholesome and reasonable orders, laws, statutes, and ordinances,
directions and instructions, either with penalties or without; so as the same
be not repugnant or contrary to this constitution, as they shall judge to be
for the good and welfare of this Commonwealth." n8 The department claims that the plaintiffs
have waived their art. 12 and art. 16 claims on appeal. Because our holding
today does not turn on art. 12 or art. 16, we do not consider the
department's waiver argument. The department, represented by the Attorney General,
admitted to a policy and practice of denying marriage licenses to same-sex
couples. It denied that its actions violated any law or that the plaintiffs
were entitled to relief. The parties filed cross motions for summary
judgment. A Superior Court judge ruled for the department. In a
memorandum of decision and order dated May 7, 2002, he dismissed the
plaintiffs' claim that the marriage statutes should be construed to permit
marriage between persons of the same sex, holding that the plain wording of
G. L. c. 207, as well as the wording of other marriage statutes, precluded
that interpretation. Turning to the constitutional claims, he held that the
marriage exclusion does not offend the liberty, freedom, equality, or due process
provisions of the Massachusetts Constitution, and that the Massachusetts
Declaration of Rights does not guarantee "the fundamental right to marry
a person of the same sex." He concluded that prohibiting same-sex
marriage rationally furthers the Legislature's legitimate interest in
safeguarding the "primary purpose" of marriage,
"procreation." The Legislature may rationally limit marriage to
opposite-sex couples, he concluded, because those couples are
"theoretically . . . capable of procreation," they do not rely on
"inherently more cumbersome" noncoital means of reproduction, and
they are more likely than same-sex couples to have children, or more
children. After the complaint was dismissed and summary judgment
entered for the defendants, the plaintiffs appealed. Both parties requested
direct appellate review, which we granted. II Although the plaintiffs refer in passing to "the
marriage statutes," they focus, quite properly, on G. L. c. 207, the
marriage licensing statute, which controls entry into civil marriage. As a
preliminary matter, we summarize the provisions of that law. General Laws c. 207 is both a gatekeeping and a public
records statute. It sets minimum qualifications for obtaining a marriage
license and directs city and town clerks, the registrar, and the department
to keep and maintain certain "vital records" of civil marriages.
The gatekeeping provisions of G. L. c. 207 are minimal. They forbid marriage
of individuals within certain degrees of consanguinity, § § 1 and 2, and polygamous marriages. See G.
L. c. 207, § 4. See also G. L. c. 207,
§ 8 (marriages solemnized in violation
of § § 1, 2, and 4, are void ab initio).
They prohibit marriage if one of the parties has communicable syphilis, see
G. L. c. 207, § 28A, and restrict the
circumstances in which a person under eighteen years of age may marry. See G.
L. c. 207, § § 7, 25, and 27. The
statute requires that civil marriage be solemnized only by those so
authorized. See G. L. c. 207, § §
38-40. The record-keeping provisions of G. L. c. 207 are more
extensive. Marriage applicants file standard information forms and a medical
certificate in any Massachusetts city or town clerk's office and tender a
filing fee. G. L. c. 207, § § 19-20,
28A. The clerk issues the marriage license, and when the marriage is
solemnized, the individual authorized to solemnize the marriage adds
additional information to the form and returns it (or a copy) to the clerk's
office. G. L. c. 207, § § 28, 30,
38-40 (this completed form is commonly known as the "marriage
certificate"). The clerk sends a copy of the information to the
registrar, and that information becomes a public record. See G. L. c. 17,
§ 4; G. L. c. 66, § 10. n9, n10 n9 The marital forms forwarded by
the clerk or register must contain the "date of record, date and place
of marriage, name, residence and official station of the person by whom
solemnized; for each of the parties to be married the name, date and place of
birth, residence, age, number of the marriage, as first or second, and if
previously married, whether widowed or divorced, and the birth-given names of
their parents." G. L. c. 46, §
1.n10 "The record of a marriage made and kept as provided by law
by the person by whom the marriage was solemnized, or by the clerk or
registrar, or a copy thereof duly certified, shall be prima facie evidence of
such marriage." G. L. c. 207, §
45. A "certificate of the commissioner's copy, signed by the
commissioner or the registrar, is admissible as evidence of the
record." Secretary of the
Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 181-182, 366 N.E.2d 717
(1977). In short, for all the joy and solemnity that normally
attend a marriage, G. L. c. 207, governing entrance to marriage, is a
licensing law. The plaintiffs argue that because nothing in that licensing
law specifically prohibits marriages between persons of the same sex, we may
interpret the statute to permit "qualified same sex couples" to
obtain marriage licenses, thereby avoiding the question whether the law is
constitutional. See School Comm. of Greenfield v. Greenfield Educ. Ass'n,
385 Mass. 70, 79, 431 N.E.2d 180 (1982), and cases cited. This claim
lacks merit. We interpret statutes to carry out the Legislature's
intent, determined by the words of a statute interpreted according to
"the ordinary and approved usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447,
190 N.E. 606 (1934). The everyday
meaning of "marriage" is "the legal union of a man and woman
as husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the
plaintiffs do not argue that the term "marriage" has ever had a
different meaning under Massachusetts law. See, e.g., Milford v. Worcester, 7 Mass. 48, 52
(1810) (marriage "is an engagement, by which a single man and a
single woman, of sufficient discretion, take each other for husband and
wife"). This definition of marriage, as both the department and the
Superior Court judge point out, derives from the common law. See Commonwealth v. Knowlton, 2 Mass. 530,
535 (1807) (Massachusetts common law derives from English common law
except as otherwise altered by Massachusetts statutes and Constitution). See
also Commonwealth v. Lane, 113
Mass. 458, 462-463 (1873) ("when the statutes are silent, questions
of the validity of marriages are to be determined by the jus gentium, the
common law of nations"); C.P. Kindregan, Jr., & M.L. Inker, Family
Law and Practice § 1.2 (3d ed.
2002). Far from being ambiguous, the
undefined word "marriage," as used in G. L. c. 207, confirms the
General Court's intent to hew to the term's common-law and quotidian meaning
concerning the genders of the marriage partners. The intended scope of G. L. c. 207 is also evident in
its consanguinity provisions. See Chandler
v. County Comm'rs of Nantucket County, 437 Mass. 430, 435, 772 N.E.2d 578
(2002) (statute's various provisions may offer insight into legislative
intent). Sections 1 and 2 of G. L. c. 207 prohibit marriages between a man
and certain female relatives and a woman and certain male relatives, but are
silent as to the consanguinity of male-male or female-female marriage
applicants. See G. L. c. 207, § § 1-2.
The only reasonable explanation is that the Legislature did not intend that
same-sex couples be licensed to marry. We conclude, as did the judge, that G.
L. c. 207 may not be construed to permit same-sex couples to marry. n11 n11 We use the terms "same
sex" and "opposite sex" when characterizing the couples in
question, because these terms are more accurate in this context than the
terms "homosexual" or "heterosexual," although at times
we use those terms when we consider them appropriate. Nothing in our marriage
law precludes people who identify themselves (or who are identified by
others) as gay, lesbian, or bisexual from marrying persons of the opposite
sex. See Baehr v. Lewin, 74 Haw.
530, 543 n.11, 547 n.14, 852 P.2d 44 (1993). III A The larger question is whether, as the department
claims, government action that bars same-sex couples from civil marriage
constitutes a legitimate exercise of the State's authority to regulate
conduct, or whether, as the plaintiffs claim, this categorical marriage
exclusion violates the Massachusetts Constitution. We have recognized the
long-standing statutory understanding, derived from the common law, that
"marriage" means the lawful union of a woman and a man. But that
history cannot and does not foreclose the constitutional question. The plaintiffs' claim that the marriage restriction
violates the Massachusetts Constitution can be analyzed in two ways. Does it
offend the Constitution's guarantees of equality before the law? Or do the
liberty and due process provisions of the Massachusetts Constitution secure
the plaintiffs' right to marry their chosen partner? In matters implicating
marriage, family life, and the upbringing of children, the two constitutional
concepts frequently overlap, as they do here. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 120, 136
L. Ed. 2d 473, 117 S. Ct. 555 (1996) (noting convergence of due process
and equal protection principles in cases concerning parent-child
relationships); Perez v. Sharp, 32
Cal.2d 711, 728, 198 P.2d 17 (1948) (analyzing statutory ban on
interracial marriage as equal protection violation concerning regulation of
fundamental right). See also Lawrence,
supra at 2482 ("Equality of treatment and the due process right to
demand respect for conduct protected by the substantive guarantee of liberty
are linked in important respects, and a decision on the latter point advances
both interests"); Bolling v.
Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954) (racial
segregation in District of Columbia public schools violates the due process
clause of the Fifth Amendment to the United States Constitution), decided the
same day as Brown v. Board of Educ.
of Topeka, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954) (holding
that segregation of public schools in the States violates the equal
protection clause of the Fourteenth Amendment). Much of what we say
concerning one standard applies to the other. We begin by considering the nature of civil marriage
itself. Simply put, the government creates civil marriage. In Massachusetts,
civil marriage is, and since pre-Colonial days has been, precisely what its
name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459,
460-466 (1879) (noting that "in Massachusetts, from very early
times, the requisites of a valid marriage have been regulated by statutes of
the Colony, Province, and Commonwealth," and surveying marriage statutes
from 1639 through 1834). No religious ceremony has ever been required to
validate a Massachusetts marriage.
Id.In a real sense, there are three partners to every civil marriage:
two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31,
762 N.E.2d 797 (2002) ("Marriage is not a mere contract between two
parties but a legal status from which certain rights and obligations
arise"); Smith v. Smith, 171
Mass. 404, 409, 50 N.E. 933 (1898) (on marriage, the parties "assume[]
new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546,
195 N.E. 714 (1935). While only the parties can mutually assent to
marriage, the terms of the marriage -- who may marry and what obligations,
benefits, and liabilities attach to civil marriage -- are set by the
Commonwealth. Conversely, while only the parties can agree to end the
marriage (absent the death of one of them or a marriage void ab initio), the
Commonwealth defines the exit terms. See G. L. c. 208. Civil marriage is created and regulated through exercise
of the police power. See Commonwealth
v. Stowell, 389 Mass. 171, 175, 449 N.E.2d 357 (1983) (regulation of
marriage is properly within the scope of the police power). "Police
power" (now more commonly termed the State's regulatory authority) is an
old-fashioned term for the Commonwealth's lawmaking authority, as bounded by
the liberty and equality guarantees of the Massachusetts Constitution and its
express delegation of power from the people to their government. In broad
terms, it is the Legislature's power to enact rules to regulate conduct, to
the extent that such laws are "necessary to secure the health, safety,
good order, comfort, or general welfare of the community" (citations
omitted). Opinion of the Justices,
341 Mass. 760, 785, 168 N.E.2d 858 (1960). n12 See Commonwealth v. Alger, 61 Mass. 53, 7
Cush. 53, 85 (1851). n12 "The term public welfare
has never been and cannot be precisely defined. Sometimes it has been said to
include public convenience, comfort, peace and order, prosperity, and similar
concepts, but not to include 'mere expediency.'" Opinion of the Justices, 333 Mass. 773,
778, 128 N.E.2d 557 (1955). Without question, civil marriage enhances the "welfare
of the community." It is a "social institution of the highest
importance." French v.
McAnarney, supra. Civil marriage anchors an ordered society by
encouraging stable relationships over transient ones. It is central to the
way the Commonwealth identifies individuals, provides for the orderly
distribution of property, ensures that children and adults are cared for and
supported whenever possible from private rather than public funds, and tracks
important epidemiological and demographic data. Marriage also bestows enormous private and social
advantages on those who choose to marry. Civil marriage is at once a deeply
personal commitment to another human being and a highly public celebration of
the ideals of mutuality, companionship, intimacy, fidelity, and family.
"It is an association that
promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. 479,
486, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). Because it fulfils
yearnings for security, safe haven, and connection that express our common
humanity, civil marriage is an esteemed institution, and the decision whether
and whom to marry is among life's momentous acts of self-definition. Tangible as well as intangible benefits flow from
marriage. The marriage license grants valuable property rights to those who
meet the entry requirements, and who agree to what might otherwise be a
burdensome degree of government regulation of their activities. n13 See Leduc v. Commonwealth, 421 Mass. 433,
435, 657 N.E.2d 755 (1995), cert. denied,
519 U.S. 827, 136 L. Ed. 2d 47, 117 S. Ct. 91 (1996) ("The
historical aim of licensure generally is preservation of public health,
safety, and welfare by extending the public trust only to those with proven
qualifications"). The Legislature has conferred on "each party [in
a civil marriage] substantial rights concerning the assets of the other which
unmarried cohabitants do not have."
Wilcox v. Trautz, 427 Mass. 326, 334, 693 N.E.2d 141 (1998).
See Collins v. Guggenheim, 417
Mass. 615, 618, 631 N.E.2d 1016 (1994) (rejecting claim for equitable
distribution of property where plaintiff cohabited with but did not marry
defendant); Feliciano v. Rosemar
Silver Co., 401 Mass. 141, 142, 514 N.E.2d 1095 (1987) (government
interest in promoting marriage would be "subverted" by recognition
of "a right to recover for loss of consortium by a person who has not
accepted the correlative responsibilities of marriage"); Davis v. Misiano, 373 Mass. 261, 263,
366 N.E.2d 752 (1977) (unmarried partners not entitled to rights of
separate support or alimony). See generally
Attorney Gen. v. Desilets, 418 Mass. 316, 327-328, 636 N.E.2d 233
& nn. 10, 11 (1994). n13 For example, married persons
face substantial restrictions, simply because they are married, on their
ability freely to dispose of their assets. See, e.g., G. L. c. 208, § 34 (providing for the payment of alimony
and the equitable division of property on divorce); G. L. c. 191, § 15, and G. L. c. 189 (rights of elective
share and dower). The benefits accessible only by way of a marriage
license are enormous, touching nearly every aspect of life and death. The
department states that "hundreds of statutes" are related to marriage
and to marital benefits. With no attempt to be comprehensive, we note that
some of the statutory benefits conferred by the Legislature on those who
enter into civil marriage include, as to property: joint Massachusetts income
tax filing (G. L. c. 62C, § 6);
tenancy by the entirety (a form of ownership that provides certain
protections against creditors and allows for the automatic descent of
property to the surviving spouse without probate) (G. L. c. 184, § 7); extension of the benefit of the
homestead protection (securing up to $ 300,000 in equity from creditors) to
one's spouse and children (G. L. c. 188, §
1); automatic rights to inherit the property of a deceased spouse who
does not leave a will (G. L. c. 190, §
1); the rights of elective share and of dower (which allow surviving
spouses certain property rights where the decedent spouse has not made
adequate provision for the survivor in a will) (G. L. c. 191, § 15, and G. L. c. 189); entitlement to wages
owed to a deceased employee (G. L. c. 149, §
178A [general] and G. L. c. 149, §
178C [public employees]); eligibility to continue certain businesses
of a deceased spouse (e.g., G. L. c. 112, §
53 [dentist]); the right to share the medical policy of one's spouse
(e.g., G. L. c. 175, § 108, Second [a]
[3] [defining an insured's "dependent" to include one's spouse),
see Connors v. Boston, 430 Mass.
31, 43, 714 N.E.2d 335 (1999) [domestic partners of city employees not
included within the term "dependent" as used in G. L. c. 32B,
§ 2]); thirty-nine week continuation
of health coverage for the spouse of a person who is laid off or dies (e.g.,
G. L. c. 175, § 110G); preferential
options under the Commonwealth's pension system (see G. L. c. 32, § 12 [2] ["Joint and Last Survivor
Allowance"]); preferential benefits in the Commonwealth's medical
program, MassHealth (e.g., 130 Code Mass. Regs. § 515.012 [A] prohibiting placing a lien on
long-term care patient's former home if spouse still lives there); access to
veterans' spousal benefits and preferences (e.g., G. L. c. 115, § 1 [defining "dependents"] and G.
L. c. 31, § 26 [State employment] and
§ 28 [municipal employees]); financial
protections for spouses of certain Commonwealth employees (fire fighters,
police officers, prosecutors, among others) killed in the performance of duty
(e.g., G. L. c. 32, § § 100-103); the
equitable division of marital property on divorce (G. L. c. 208, § 34); temporary and permanent alimony rights
(G. L. c. 208, § § 17 and 34); the
right to separate support on separation of the parties that does not result
in divorce (G. L. c. 209, § 32); and
the right to bring claims for wrongful death and loss of consortium, and for
funeral and burial expenses and punitive damages resulting from tort actions
(G. L. c. 229, § § 1 and 2; G. L. c.
228, § 1. See Feliciano v. Rosemar
Silver Co., supra). Exclusive marital benefits that are not directly tied to
property rights include the presumptions of legitimacy and parentage of
children born to a married couple (G. L. c. 209C, § 6, and G. L. c. 46, § 4B); and evidentiary rights, such as the
prohibition against spouses testifying against one another about their
private conversations, applicable in both civil and criminal cases (G. L. c.
233, § 20). Other statutory benefits
of a personal nature available only to married individuals include
qualification for bereavement or medical leave to care for individuals
related by blood or marriage (G. L. c. 149, §
52D); an automatic "family member" preference to make
medical decisions for an incompetent or disabled spouse who does not have a
contrary health care proxy, see Shine
v. Vega, 429 Mass. 456, 466, 709 N.E.2d 58 (1999); the application of
predictable rules of child custody, visitation, support, and removal
out-of-State when married parents divorce (e.g., G. L. c. 208, § 19 [temporary custody], § 20 [temporary support], § 28 [custody and support on judgment of divorce],
§ 30 [removal from Commonwealth], and
§ 31 [shared custody plan]; priority
rights to administer the estate of a deceased spouse who dies without a will,
and requirement that surviving spouse must consent to the appointment of any
other person as administrator (G. L. c. 38, §
13 [disposition of body], and G. L. c. 113, § 8 [anatomical gifts]); and the right to interment
in the lot or tomb owned by one's deceased spouse (G. L. c. 114, § § 29-33). Where a married couple has children, their children are
also directly or indirectly, but no less auspiciously, the recipients of the
special legal and economic protections obtained by civil marriage.
Notwithstanding the Commonwealth's strong public policy to abolish legal
distinctions between marital and nonmarital children in providing for the
support and care of minors, see Department
of Revenue v. Mason M., 439 Mass. 665, 790 N.E.2d 671 (2003); Woodward v. Commissioner of Social Sec.,
435 Mass. 536, 546, 760 N.E.2d 257 (2002), the fact remains that marital
children reap a measure of family stability and economic security based on
their parents' legally privileged status that is largely inaccessible, or not
as readily accessible, to nonmarital children. Some of these benefits are
social, such as the enhanced approval that still attends the status of being
a marital child. Others are material, such as the greater ease of access to
family-based State and Federal benefits that attend the presumptions of one's
parentage. It is undoubtedly for these concrete reasons, as well as
for its intimately personal significance, that civil marriage has long been termed a
"civil right." See, e.g., Loving
v. Virginia, 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967)
("Marriage is one of the 'basic civil rights of man,' fundamental to our
very existence and survival"), quoting
Skinner v. Oklahoma, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct.
1110 (1942); Milford v. Worcester, 7 Mass. 48, 56 (1810)
(referring to "civil rights incident to marriages"). See also Baehr v. Lewin, 74 Haw. 530, 561, 852
P.2d 44 (1993) (identifying marriage as a "civil right[
]"); Baker v. State, 170 Vt.
194, 242, 744 A.2d 864 (1999) (Johnson, J., concurring in part and
dissenting in part) (same). The United States Supreme Court has described the
right to marry as "of fundamental importance for all individuals"
and as "part of the fundamental 'right of privacy' implicit in the
Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384,
54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). See Loving v. Virginia, supra ("The
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men"). n14 n14 Civil marriage enjoys a dual
and in some sense paradoxical status as both a State-conferred benefit (with
its attendant obligations) and a multi-faceted personal interest of
"fundamental importance." Zablocki
v. Redhail, 434 U.S. 374, 383, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). As
a practical matter, the State could not abolish civil marriage without
chaotic consequences. The "right to marry," id. at 387, is different from rights
deemed "fundamental" for equal protection and due process purposes
because the State could, in theory, abolish all civil marriage while it
cannot, for example, abolish all private property rights. Without the right to marry -- or more properly, the
right to choose to marry -- one is excluded from the full range of human
experience and denied full protection of the laws for one's "avowed
commitment to an intimate and lasting human relationship." Baker v. State, supra at 229.
Because civil marriage is central to the lives of individuals and the welfare
of the community, our laws assiduously protect the individual's right to
marry against undue government incursion. Laws may not "interfere
directly and substantially with the right to marry." Zablocki v. Redhail, supra at 387.
See Perez v. Sharp, 32 Cal. 2d 711,
714, 198 P.2d 17 (1948) ("There can be no prohibition of marriage
except for an important social objective and reasonable means"). n15 n15 The department argues that
this case concerns the rights of couples (same sex and opposite sex), not the
rights of individuals. This is incorrect. The rights implicated in this case
are at the core of individual privacy and autonomy. See, e.g., Loving v. Virginia, 388 U.S. 1, 12, 18
L. Ed. 2d 1010, 87 S. Ct. 1817 (1967) ("Under our Constitution, the
freedom to marry or not marry, a person of another race resides with the
individual and cannot be infringed by the State"); Perez v. Sharp, 32 Cal.2d 711, 716, 198
P.2d 17 (1948) ("The right to marry is the right of individuals, not
of racial groups"). See also A.Z.
v. B.Z., 431 Mass. 150, 162, 725 N.E.2d 1051 (2000), quoting Moore v. East Cleveland, 431 U.S. 494,
499, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (noting "freedom of
personal choice in matters of marriage and family life"). While two
individuals who wish to marry may be equally aggrieved by State action
denying them that opportunity, they do not "share" the liberty and
equality interests at stake. Unquestionably, the regulatory power of the Commonwealth
over civil marriage is broad, as is the Commonwealth's discretion to award
public benefits. See Commonwealth
v. Stowell, 389 Mass. 171, 175, 449 N.E.2d 357 (1983) (marriage); Moe v. Secretary of Admin. & Fin.,
382 Mass. 629, 652, 417 N.E.2d 387 (1981) (Medicaid benefits).
Individuals who have the choice to marry each other and nevertheless choose
not to may properly be denied the legal benefits of marriage. See Wilcox v. Trautz, 427 Mass. 326, 334,
693 N.E.2d 141 (1998); Collins
v. Guggenheim, 417 Mass. 615, 618, 631 N.E.2d 1016 (1994); Feliciano v. Rosemar Silver Co., 401
Mass. 141, 142, 514 N.E.2d 1095 (1987). But that same logic cannot hold
for a qualified individual who would marry if she or he only could. B For decades, indeed centuries, in much of this country
(including Massachusetts) no lawful marriage was possible between white and
black Americans. That long history availed not when the Supreme Court of
California held in 1948 that a legislative prohibition against interracial
marriage violated the due process and equality guarantees of the Fourteenth
Amendment, Perez v. Sharp, 32
Cal.2d 711, 728, 198 P.2d 17 (1948), or when, nineteen years later, the
United States Supreme Court also held that a statutory bar to interracial
marriage violated the Fourteenth Amendment,
Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817
(1967). n16 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. See Perez
v. Sharp, supra at 717 ("the essence of the right to marry is
freedom to join in marriage with the person of one's choice"). See
also Loving v. Virginia, supra at
12. In this case, as in Perez and Loving, a statute deprives individuals
of access to an institution of fundamental legal, personal, and social
significance -- the institution of marriage -- because of a single trait:
skin color in Perez and Loving, sexual orientation here. As it did in Perez
and Loving, history must yield to a more fully developed understanding of the
invidious quality of the discrimination. n17 n16 The department argues that
the Loving decision did not profoundly alter the by-then common conception of
marriage because it was decided at a time when antimiscegenation statutes
were in "full-scale retreat." But the relationship the department
draws between popular consensus and the constitutionality of a statute
oppressive to a minority group ignores the successful constitutional
challenges to an antimiscegenation statute, initiated some twenty years
earlier. When the Supreme Court of California decided Perez v. Sharp, 32 Cal.2d 711, 728, 198
P.2d 17 (1948), a precursor to Loving, racial inequality was rampant and
normative, segregation in public and private institutions was commonplace,
the civil rights movement had not yet been launched, and the "separate
but equal" doctrine of Plessy
v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896), was
still good law. The lack of popular consensus favoring integration (including
interracial marriage) did not deter the Supreme Court of California from
holding that that State's antimiscegenation statute violated the plaintiffs'
constitutional rights. Neither the Perez court nor the Loving Court was
content to permit an unconstitutional situation to fester because the remedy
might not reflect a broad social consensus. n17 Recently, the United States
Supreme Court has reaffirmed that the Constitution prohibits a State from
wielding its formidable power to regulate conduct in a manner that demeans
basic human dignity, even though that statutory discrimination may enjoy
broad public support. The Court struck down a statute criminalizing sodomy.
See Lawrence, supra at 2478 ("The liberty protected by the Constitution
allows homosexual persons the right to make this choice"). The Massachusetts Constitution protects matters of
personal liberty against government incursion as zealously, and often more
so, than does the Federal Constitution, even where both Constitutions employ
essentially the same language. See
Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424
Mass. 586, 590, 677 N.E.2d 101 (1997);
Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass.
409, 416, 294 N.E.2d 354 (1973). That the Massachusetts Constitution is
in some instances more protective of individual liberty interests than is the
Federal Constitution is not surprising.
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, 131 L.
Ed. 2d 34, 115 S. Ct. 1185 (1995). n18 n18 We have recognized that our
Constitution may more extensively protect individual rights than the Federal Constitution
in widely different contexts. See, e.g.,
Horsemen's Benevolent & Protective Ass'n v. State Racing
Comm'n, 403 Mass. 692, 532 N.E.2d 644 (1989) (freedom from intrusive drug
testing in highly regulated industry);
Cepulonis v. Secretary of the Commonwealth, 389 Mass. 930, 452
N.E.2d 1137 (1983) (inmates' right to register to vote); Batchelder v. Allied Stores Int'l, Inc.,
388 Mass. 83, 445 N.E.2d 590 (1983) (freedom to solicit signatures for
ballot access in public election); Moe
v. Secretary of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981)
(right to State Medicaid payment for medically necessary abortions); Coffee-Rich, Inc. v. Commissioner of
Pub. Health, 348 Mass. 414, 204 N.E.2d 281 (1965) (freedom to pursue
one's lawful business). The individual liberty and equality safeguards of the
Massachusetts Constitution protect both "freedom from" unwarranted
government intrusion into protected spheres of life and "freedom
to" partake in benefits created by the State for the common good. See Bachrach v. Secretary of the
Commonwealth, 382 Mass. 268, 273, 415 N.E.2d 832 (1981); Dalli v. Board of Educ., 358 Mass. 753,
759, 267 N.E.2d 219 (1971). Both freedoms are involved here. Whether and whom to marry, how to express
sexual intimacy, and whether and how to establish a family -- these are among
the most basic of every individual's liberty and due process rights. See,
e.g., Lawrence, supra at 2481; Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 851, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992); Zablocki v. Redhail, 434 U.S. 374, 384,
54 L. Ed. 2d 618, 98 S. Ct. 673 (1978);
Roe v. Wade, 410 U.S. 113, 152-153, 35 L. Ed. 2d 147, 93 S. Ct. 705
(1973); Eisenstadt v. Baird,
405 U.S. 438, 453, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Loving v. Virginia, supra. And
central to personal freedom and security is the assurance that the laws will
apply equally to persons in similar situations. "Absolute equality
before the law is a fundamental principle of our own Constitution." Opinion of the Justices, 211 Mass. 618,
619, 98 N.E. 337 (1912). 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. The Massachusetts Constitution requires, at a minimum,
that the exercise of the State's regulatory authority not be "arbitrary
or capricious." Commonwealth
v. Henry's Drywall Co., 366 Mass. 539, 542, 320 N.E.2d 911 (1974). n19
Under both the equality and liberty guarantees, regulatory authority must, at
very least, serve "a legitimate purpose in a rational way"; a
statute must "bear a reasonable relation to a permissible legislative
objective." Rushworth v.
Registrar of Motor Vehicles, 413 Mass. 265, 270, 596 N.E.2d 340 (1992).
See, e.g., Massachusetts Fed'n of
Teachers v. Board of Educ., 436 Mass. 763, 778, 767 N.E.2d 549 (2002)
(equal protection); Coffee-Rich, Inc.
v. Commissioner of Pub. Health, 348 Mass. 414, 422, 204 N.E.2d 281 (1965)
(due process). Any law failing to satisfy the basic standards of rationality
is void. n19 The Massachusetts Constitution empowers the
General Court to enact only those orders, laws, statutes, and ordinances
"wholesome and reasonable," that are not "repugnant or
contrary" to the Constitution, and that, in the Legislature's judgment,
advance the "good and welfare" of the Commonwealth, its government,
and all of its subjects. Part II, c. 1, §
1, art. 4. See Opinion of
the Justices, 360 Mass. 877, 883, 271 N.E.2d 335 (1971), quoting Jones v. Robbins, 74 Mass. 329, 8 Gray
329, 343 (1857) (powers vested in government are set down in the
Massachusetts Constitution "in a few plain, clear and intelligible
propositions, for the better guidance and control, both of legislators and
magistrates"). The plaintiffs challenge the marriage statute on both
equal protection and due process grounds. With respect to each such claim, we
must first determine the appropriate standard of review. Where a statute implicates a fundamental
right or uses a suspect classification, we employ "strict judicial
scrutiny." Lowell v. Kowalski,
380 Mass. 663, 666, 405 N.E.2d 135 (1980). For all other statutes, we
employ the "'rational basis' test."
English v. New England Med. Ctr., 405 Mass. 423, 428, 541 N.E.2d
329 (1989). For due process claims, rational basis analysis requires that
statutes "bear[] a real and substantial relation to the public health,
safety, morals, or some other phase of the general welfare." Coffee-Rich, Inc. v. Commissioner of Pub.
Health, supra, quoting Sperry &
Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307
Mass. 408, 418, 30 N.E.2d 269 (1940). For equal protection challenges,
the rational basis test requires that "an impartial lawmaker could
logically believe that the classification would serve a legitimate public
purpose that transcends the harm to the members of the disadvantaged
class." English v. New England
Med. Ctr., supra at 429, quoting Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452, 87 L. Ed. 2d 313, 105 S.
Ct. 3249 (1985) (Stevens, J., concurring). n20 n20 Not every asserted rational
relationship is a "conceivable" one, and rationality review is not "toothless." Murphy v. Commissioner of the Dep't of
Indus. Accs., 415 Mass. 218, 233, 612 N.E.2d 1149 (1993), citing Mathews v. Lucas, 427 U.S. 495, 510, 49
L. Ed. 2d 651, 96 S. Ct. 2755 (1976). Statutes have failed rational basis
review even in circumstances where no fundamental right or
"suspect" classification is implicated. See, e.g., Murphy v. Commissioner of the Dep't of
Indus. Accs., 415 Mass. 218, 226-227, 612 N.E.2d 1149 (1993) (fee imposed
on retention of counsel in administrative proceedings); Secretary of the Commonwealth v. City
Clerk of Lowell, 373 Mass. 178, 186, 366 N.E.2d 717 (1977) (selection of
surname for nonmarital child); Aetna
Cas. & Sur. Co. v. Commissioner of Ins., 358 Mass. 272, 280-281, 263
N.E.2d 698 (1970) (automobile insurance ratesetting); Coffee-Rich, Inc. v. Commissioner of
Pub. Health, 348 Mass. 414, 422, 204 N.E.2d 281 (1965) (sale of wholesome
product); Mansfield Beauty Academy,
Inc. v. Board of Registration of Hairdressers, 326 Mass. 624, 627, 96
N.E.2d 145 (1951) (right to charge for materials furnished to models by
trade school); Opinion of the
Justices, 322 Mass. 755, 760-761, 79 N.E.2d 883 (1948) (proposed statute
concerning regulating cemeteries);
Boston Elevated Ry. v. Commonwealth, 310 Mass. 528, 556-557, 39
N.E.2d 87 (1942) (legislation impairing contract right); Durgin v. Minot, 203 Mass. 26, 28, 89
N.E. 144 (1909) (statute authorizing certain board of health
regulations). The department argues that no fundamental right or
"suspect" class is at issue here, n21 and rational basis is the
appropriate standard of review. For the reasons we explain below, we conclude
that the marriage ban does not meet the rational basis test for either due
process or equal protection. Because the statute does not survive rational
basis review, we do not consider the plaintiffs' arguments that this case
merits strict judicial scrutiny. n21 Article 1 of the
Massachusetts Constitution specifically prohibits sex-based discrimination.
See post at (Greaney, J., concurring). We have not previously considered
whether "sexual orientation" is a "suspect"
classification. Our resolution of this case does not require that inquiry
here. The department
posits three legislative rationales for prohibiting same-sex couples from
marrying: (1) providing a "favorable setting for procreation"; (2)
ensuring the optimal setting for child rearing, which the department defines
as "a two-parent family with one parent of each sex"; and (3)
preserving scarce State and private financial resources. We consider each in
turn. 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.
See Franklin v. Franklin, 154 Mass.
515, 516, 28 N.E. 681 (1891) ("The consummation of a marriage by
coition is not necessary to its validity"). n22 People who cannot stir
from their deathbed may marry. See G. L. c. 207, § 28A. 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.
n23 n22 Our marriage law does
recognize that the inability to participate in intimate relations may have a
bearing on one of the central expectations of marriage. Since the earliest
days of the Commonwealth, the divorce statutes have permitted (but not
required) a spouse to choose to divorce his or her impotent mate. See St.
1785, c. 69, § 3. While infertility is
not a ground to void or terminate a marriage, impotency (the inability to
engage in sexual intercourse) is, at the election of the disaffected spouse.
See G. L. c. 207, § 14 (annulment); G.
L. c. 208, § 1 (divorce). Cf. Martin v. Otis, 233 Mass. 491, 495, 124
N.E. 294 (1919) ("impotency does not render a marriage void, but
only voidable at the suit of the party conceiving himself or herself to be
wronged"); Smith v. Smith, 171
Mass. 404, 408, 50 N.E. 933 (1898) (marriage nullified because husband's
incurable syphilis "leaves him no foundation on which the marriage
relation could properly rest"). See also G. L. c. 207, § 28A. However, in Hanson v. Hanson, 287 Mass. 154, 191
N.E. 673 (1934), a decree of annulment for nonconsummation was reversed
where the wife knew before the marriage that her husband had syphilis and
voluntarily chose to marry him. We held that, given the circumstances of the
wife's prior knowledge of the full extent of the disease and her consent to
be married, the husband's condition did not go "to the essence" of
the marriage. Id. at 159. n23 It is hardly surprising that
civil marriage developed historically as a means to regulate heterosexual
conduct and to promote child rearing, because until very recently unassisted
heterosexual relations were the only means short of adoption by which
children could come into the world, and the absence of widely available and effective
contraceptives made the link between heterosexual sex and procreation very
strong indeed. Punitive notions of illegitimacy, see Powers v. Wilkinson, 399 Mass. 650, 661,
506 N.E.2d 842 (1987), and of homosexual identity, see Lawrence, supra at 2478-2479, further
cemented the common and legal understanding of marriage as an unquestionably
heterosexual institution. But it is circular reasoning, not analysis, to
maintain that marriage must remain a heterosexual institution because that is
what it historically has been. As one dissent acknowledges, in "the
modern age," "heterosexual intercourse, procreation, and childcare
are not necessarily conjoined." Post at (Cordy, J., dissenting). Moreover, the Commonwealth affirmatively facilitates
bringing children into a family regardless of whether the intended parent is
married or unmarried, whether the child is adopted or born into a family,
whether assistive technology was used to conceive the child, and whether the
parent or her partner is heterosexual, homosexual, or bisexual. n24 If
procreation were a necessary component of civil marriage, our statutes would
draw a tighter circle around the permissible bounds of nonmarital child
bearing and the creation of families by noncoital means. The attempt to isolate
procreation as "the source of a fundamental right to marry," post
at (Cordy, J., dissenting), overlooks the integrated way in which courts have
examined the complex and overlapping realms of personal autonomy, marriage,
family life, and child rearing. Our jurisprudence recognizes that, in these
nuanced and fundamentally private areas of life, such a narrow focus is
inappropriate. n24 Adoption and certain
insurance coverage for assisted reproductive technology are available to
married couples, same- sex couples, and single individuals alike. See G. L.
c. 210, § 1; Adoption of Tammy, 416 Mass. 205, 619
N.E.2d 315 (1993) (adoption); G. L. c. 175, § 47H; G. L. c. 176A, § 8K; G. L. c. 176B, § 4J; and G. L. c. 176G, § 4 (insurance coverage). See also Woodward v. Commissioner of Social Sec.,
435 Mass. 536, 546, 760 N.E.2d 257 (2002) (posthumous reproduction); Culliton v. Beth Israel Deaconess Med.
Ctr., 435 Mass. 285, 293, 756 N.E.2d 1133 (2001) (gestational surrogacy). The "marriage is procreation" argument singles
out the one unbridgeable difference between same-sex and opposite-sex
couples, and transforms that difference into the essence of legal marriage.
Like "Amendment 2" to the Constitution of Colorado, which
effectively denied homosexual persons equality under the law and full access
to the political process, the marriage restriction impermissibly
"identifies persons by a single trait and then denies them protection
across the board." Romer v.
Evans, 517 U.S. 620, 633, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). In
so doing, the State's action confers an official stamp of approval on the
destructive stereotype that same-sex relationships are inherently unstable
and inferior to opposite-sex relationships and are not worthy of respect. n25 n25 Because our laws expressly or
implicitly sanction so many kinds of opposite-sex marriages that do not or
will never result in unassisted reproduction, it is erroneous to claim, as
the dissent does, that the "theoretical" procreative capacity of opposite-sex
couples, post at (Cordy, J., dissenting), sufficiently justifies excluding
from civil marriage same-sex couples who actually have children. The department's first stated rationale, equating
marriage with unassisted heterosexual procreation, shades imperceptibly into
its second: that confining marriage to opposite-sex couples ensures that
children are raised in the "optimal" setting. Protecting the welfare of children is a
paramount State policy. Restricting marriage to opposite-sex couples,
however, cannot plausibly further this policy. "The demographic changes
of the past century make it difficult to speak of an average American family.
The composition of families varies greatly from household to
household." Troxel v.
Granville, 530 U.S. 57, 63, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000).
Massachusetts has responded supportively to "the changing realities of
the American family," id. at
64, and has moved vigorously to strengthen the modern family in its many
variations. See, e.g., G. L. c. 209C (paternity statute); G. L. c. 119,
§ 39D (grandparent visitation
statute); Blixt v. Blixt, 437 Mass.
649, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 154 L. Ed. 2d 1022, 123
S. Ct. 1259 (2003) (same); E.N.O.
v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, cert. denied, 528 U.S. 1005, 145 L. Ed. 2d 386, 120 S.
Ct. 500 (1999) (de facto parent); Youmans
v. Ramos, 429 Mass. 774, 782, 711 N.E.2d 165 (1999) (same); and Adoption of Tammy, 416 Mass. 205, 619
N.E.2d 315 (1993) (coparent adoption). Moreover, we have repudiated the
common-law power of the State to provide varying levels of protection to
children based on the circumstances of birth. See G. L. c. 209C (paternity
statute); Powers v. Wilkinson, 399
Mass. 650, 661, 506 N.E.2d 842 (1987) ("Ours is an era in which
logic and compassion have impelled the law toward unburdening children from
the stigma and the disadvantages heretofore attendant upon the status of
illegitimacy"). The "best interests of the child" standard
does not turn on a parent's sexual orientation or marital status. See
e.g., Doe v. Doe, 16 Mass. App. Ct.
499, 503, 452 N.E.2d 293 (1983) (parent's sexual orientation insufficient
ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra at 829-830 (best
interests of child determined by considering child's relationship with
biological and de facto same-sex parents);
Silvia v. Silvia, 9 Mass. App. Ct. 339, 341, 400 N.E.2d 1330
& n.3 (1980) (collecting support and custody statutes containing no
gender distinction). The department has offered no evidence that forbidding
marriage to people of the same sex will increase the number of couples
choosing to enter into opposite-sex marriages in order to have and raise
children. There is thus no rational relationship
between the marriage statute and the Commonwealth's proffered goal of
protecting the "optimal" child rearing unit. Moreover, the
department readily concedes that people in same-sex couples may be
"excellent" parents. These couples (including four of the plaintiff
couples) have children for the reasons others do -- to love them, to care for
them, to nurture them. But the task of child rearing for same-sex couples is
made infinitely harder by their status as outliers to the marriage laws. While establishing the parentage of
children as soon as possible is crucial to the safety and welfare of
children, see Culliton v. Beth
Israel Deaconess Med. Ctr., 435 Mass. 285, 292, 756 N.E.2d 1133 (2001),
same-sex couples must undergo the sometimes lengthy and intrusive process of
second-parent adoption to establish their joint parentage. While the enhanced income provided by
marital benefits is an important source of security and stability for married
couples and their children, those benefits are denied to families headed by
same-sex couples. See, e.g., note 6, supra.
While the laws of divorce provide clear and reasonably predictable
guidelines for child support, child custody, and property division on
dissolution of a marriage, same-sex couples who dissolve their relationships
find themselves and their children in the highly unpredictable terrain of
equity jurisdiction. See E.N.O. v.
L.M.M., supra. Given the wide range of public benefits reserved only for
married couples, we do not credit the department's contention that the
absence of access to civil marriage
amounts to little more than an inconvenience to same-sex couples and
their children. Excluding same-sex couples from civil marriage will not make
children of opposite-sex marriages more secure, but it does prevent children
of same-sex couples from enjoying the immeasurable advantages that flow from
the assurance of "a stable family structure in which children will be
reared, educated, and socialized." Post at (Cordy, J., dissenting). n26 n26 The claim that the
constitutional rights to bear and raise a child are "not implicated or
infringed" by the marriage ban, post at (Cordy, J., dissenting), does
not stand up to scrutiny. The absolute foreclosure of the marriage option for
the class of parents and would-be parents at issue here imposes a heavy
burden on their decision to have and raise children that is not suffered by
any other class of parent. No one disputes that the plaintiff couples are families,
that many are parents, and that the children they are raising, like all
children, need and should have the fullest opportunity to grow up in a
secure, protected family unit. Similarly, no one disputes that, under the
rubric of marriage, the State provides a cornucopia of substantial benefits
to married parents and their children. The preferential treatment of civil
marriage reflects the Legislature's conclusion that marriage "is the
foremost setting for the education and socialization of children"
precisely because it "encourages parents to remain committed to each
other and to their children as they grow." Post at (Cordy, J.,
dissenting). In this case, we are confronted with an entire, sizeable
class of parents raising children who have absolutely no access to civil
marriage and its protections because they are forbidden from procuring a
marriage license. It cannot be
rational under our laws, and indeed it is not permitted, to penalize children
by depriving them of State benefits because the State disapproves of their
parents' sexual orientation. The third rationale advanced by the department is that
limiting marriage to opposite-sex couples furthers the Legislature's interest
in conserving scarce State and private financial resources. The marriage
restriction is rational, it argues, because the General Court logically could
assume that same-sex couples are more financially independent than married
couples and thus less needy of public marital benefits, such as tax
advantages, or private marital benefits, such as employer-financed health
plans that include spouses in their coverage. An absolute statutory ban on same-sex marriage bears no
rational relationship to the goal of economy. First, the department's
conclusory generalization -- that same-sex couples are less financially
dependent on each other than opposite-sex couples -- ignores that many
same-sex couples, such as many of the plaintiffs in this case, have children
and other dependents (here, aged parents) in their care. n27 The department
does not contend, nor could it, that these dependents are less needy or
deserving than the dependents of married couples. Second, Massachusetts
marriage laws do not condition receipt of public and private financial
benefits to married individuals on a demonstration of financial dependence on
each other; the benefits are available to married couples regardless of
whether they mingle their finances or actually depend on each other for
support. n27 It is also true that civil
marriage creates legal dependency between spouses, which is simply not
available to unmarried couples. See Part III A, supra. The department suggests additional rationales for
prohibiting same-sex couples from marrying, which are developed by some
amici. It argues that broadening civil marriage to include same-sex couples
will trivialize or destroy the institution of marriage as it has historically
been fashioned. Certainly our decision today marks a significant change in
the definition of marriage as it has been inherited from the common law, and
understood by many societies for centuries. But it does not disturb the
fundamental value of marriage in our society. Here, the plaintiffs seek only to be married, not to
undermine the institution of civil marriage. They do not want marriage
abolished. They do not attack the binary nature of marriage, the
consanguinity provisions, or any of the other gate-keeping provisions of the
marriage licensing law. 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. n28 If
anything, extending civil marriage to same-sex couples reinforces the
importance of marriage to individuals and communities. That same-sex couples
are willing to embrace marriage's solemn obligations of exclusivity, mutual
support, and commitment to one another is a testament to the enduring place
of marriage in our laws and in the human spirit. n29 n28 Justice Cordy suggests that
we have "transmuted the 'right' to marry into a right to change the
institution of marriage itself," post at (Cordy, J., dissenting),
because marriage is intimately tied to the reproductive systems of the
marriage partners and to the "optimal" mother and father setting
for child rearing. Id. That analysis hews perilously close to the argument,
long repudiated by the Legislature and the courts, that men and women are so
innately and fundamentally different that their respective "proper
spheres" can be rigidly and universally delineated. An abundance of
legislative enactments and decisions of this court negate any such
stereotypical premises. n29 We are concerned only with the
withholding of the benefits, protections, and obligations of civil marriage
from a certain class of persons for invalid reasons. Our decision in no way
limits the rights of individuals to refuse to marry persons of the same sex
for religious or any other reasons. It in no way limits the personal freedom
to disapprove of, or to encourage others to disapprove of, same-sex marriage.
Our concern, rather, is whether historical, cultural, religious, or other
reasons permit the State to impose limits on personal beliefs concerning whom
a person should marry. It has been argued that, due to the State's strong
interest in the institution of marriage as a stabilizing social structure,
only the Legislature can control and define its boundaries. Accordingly, our
elected representatives legitimately may choose to exclude same-sex couples
from civil marriage in order to assure all citizens of the Commonwealth that
(1) the benefits of our marriage laws are available explicitly to create and
support a family setting that is, in the Legislature's view, optimal for child
rearing, and (2) the State does not endorse gay and lesbian parenthood as the
equivalent of being raised by one's married biological parents. n30 These
arguments miss the point. The
Massachusetts Constitution requires that legislation meet certain criteria
and not extend beyond certain limits. It is the function of courts to
determine whether these criteria are met and whether these limits are
exceeded. In most instances, these limits are defined by whether a rational
basis exists to conclude that legislation will bring about a rational result.
The Legislature in the first instance, and the courts in the last instance,
must ascertain whether such a rational basis exists. To label the court's
role as usurping that of the Legislature, see, e.g., post at (Cordy, J.,
dissenting), is to misunderstand the nature and purpose of judicial review.
We owe great deference to the Legislature to decide social and policy issues,
but it is the traditional and settled role of courts to decide constitutional
issues. n31 n30 Justice Cordy's dissenting
opinion, post at - and nn. 24-28 (Cordy, J., dissenting), makes much of the
current "battle of the experts" concerning the possible long-term
effects on children of being raised in households headed by same-sex parents.
We presume that the Legislature is aware of these studies, see Mutual Loan Co. v. Martell, 200 Mass.
482, 487, 86 N.E. 916 (1909), aff'd,
222 U.S. 225, 56 L. Ed. 175, 32 S. Ct. 74 (1911), and has drawn
the conclusion that a child's best interest is not harmed by being raised and
nurtured by same-sex parents. See G. L. c. 210, § 7. See also
Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993); 110
Code Mass. Regs. § 1.09 (3) (2000)
("The Department [of Social Services] shall not deny to any person the
opportunity to become an adoptive or foster parent, on the basis of the . . .
sexual orientation . . . of the person, or of the child, involved").
Either the Legislature's openness to same-sex parenting is rational in light
of its paramount interests in promoting children's well-being, or irrational
in light of its so-called conclusion that a household headed by opposite-sex
married parents is the "optimal" setting for raising children. See
post at (Cordy, J., dissenting). We give full credit to the Legislature for
enacting a statutory scheme of child-related laws that is coherent,
consistent, and harmonious. See New
England Div. of the Am. Cancer Soc'y v. Commissioner of Admin., 437 Mass.
172, 180, 769 N.E.2d 1248 (2002). n31 If total
deference to the Legislature were the case, the judiciary would be stripped
of its constitutional authority to decide challenges to statutes pertaining
to marriage, child rearing, and family relationships, and, conceivably,
unconstitutional laws that provided for the forced sterilization of habitual
criminals; prohibited miscegenation; required court approval for the marriage
of persons with child support obligations; compelled a pregnant unmarried
minor to obtain the consent of both parents before undergoing an abortion; and
made sodomy a criminal offense, to name just a few, would stand. Indeed, every State court that
has recently considered the issue we decide today has exercised its duty in
the same way, by carefully scrutinizing the statutory ban on same-sex
marriages in light of relevant State constitutional provisions. See Brause
vs. Bureau of Vital Statistics, No. 3AN-95-6562CJ (Alaska Super. Ct., Feb.
27, 1998) (concluding marriage statute violated right to privacy provision in
Alaska Constitution) (superseded by constitutional amendment, art. I, § 25 of the Constitution of Alaska); Baehr v. Lewin, 74 Haw. 530, 571-580,
852 P.2d 44 (1993) (concluding marriage statute implicated Hawaii
Constitution's equal protection clause; remanding case to lower court for
further proceedings); Baker v.
State, 170 Vt. 194, 197-198, 744 A.2d 864 (1999) (concluding marriage
statute violated Vermont Constitution's common benefits clause). But see Standhardt v. Superior Court, 77 P.3d
451 (Ariz. Ct. App. 2003) (marriage statute does not violate liberty
interests under either Federal or Arizona Constitution). See also Halpern
v. Toronto (City), 172 O.A.C. 276 (2003) (concluding marriage statute
violated equal protection provisions of Canada's Charter of Rights and
Freedoms); Eagle Canada, Inc. v. Canada (Attorney Gen.), 13 B.C.L.R. (4th) 1
(2003) (same). The history of constitutional law "is the story of
the extension of constitutional rights and protections to people once ignored
or excluded." United States v.
Virginia, 518 U.S. 515, 557, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996)
(construing equal protection clause of the Fourteenth Amendment to prohibit
categorical exclusion of women from public military institute). This
statement is as true in the area of civil marriage as in any other area of
civil rights. See, e.g., Turner v.
Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Loving v. Virginia, 388 U.S. 1, 18 L.
Ed. 2d 1010, 87 S. Ct. 1817 (1967);
Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948). As a public
institution and a right of fundamental importance, civil marriage is an
evolving paradigm. The common law was exceptionally harsh toward women who
became wives: a woman's legal identity all but evaporated into that of her
husband. See generally C.P. Kindregan, Jr., & M.L. Inker, Family Law and
Practice § § 1.9 and 1.10 (3d ed.
2002). Thus, one early Nineteenth Century jurist could observe matter of
factly that, prior to the abolition of slavery in Massachusetts, "the
condition of a slave resembled the connection of a wife with her husband, and
of infant children with their father. He is obliged to maintain them, and
they cannot be separated from him."
Winchendon v. Hatfield, 4 Mass. 123, 129 (1808). But since at
least the middle of the Nineteenth Century, both the courts and the
Legislature have acted to ameliorate the harshness of the common-law regime.
In Bradford v. Worcester, 184 Mass.
557, 562, 69 N.E. 310 (1904), we refused to apply the common-law rule
that the wife's legal residence was that of her husband to defeat her claim
to a municipal "settlement of paupers." In Lewis v. Lewis, 370 Mass. 619, 629, 351
N.E.2d 526 (1976), we abrogated the common-law doctrine immunizing a
husband against certain suits because the common-law rule was predicated on
"antediluvian assumptions concerning the role and status of women in
marriage and in society." Id.
at 621. Alarms about the imminent erosion of the "natural"
order of marriage were sounded over the demise of antimiscegenation laws, the
expansion of the rights of married women, and the introduction of
"no-fault" divorce. n32 Marriage has survived all of these
transformations, and we have no doubt that marriage will continue to be a
vibrant and revered institution. n32 One prominent historian of
marriage notes, for example, that in the Nineteenth Century, the Reverend
Theodore Woolsey led the charge against expanding the grounds for divorce,
arguing that the "the only divinely approved (and therefore truly
legitimate) reason for divorce was adultery" and that only the innocent
party to a marriage terminated by reason of adultery be permitted to remarry.
Cott, Public Vows: A History of Marriage and the Nation 106 (2000). See id.
at 44-45, for a general discussion of resistance to the demise of
antimiscegenation laws. We also reject the argument suggested by the department,
and elaborated by some amici, that expanding the institution of civil
marriage in Massachusetts to include same-sex couples will lead to interstate
conflict. We would not presume to dictate how another State should respond to
today's decision. But neither should
considerations of comity prevent us from according Massachusetts residents
the full measure of protection available under the Massachusetts Constitution.
The genius of our Federal system is that each State's Constitution has
vitality specific to its own traditions, and that, subject to the minimum
requirements of the Fourteenth Amendment, each State is free to address
difficult issues of individual liberty in the manner its own Constitution
demands. Several amici suggest that prohibiting marriage by
same-sex couples reflects community consensus that homosexual conduct is
immoral. Yet Massachusetts has a strong affirmative policy of preventing
discrimination on the basis of sexual orientation. See G. L. c. 151B
(employment, housing, credit, services); G. L. c. 265, § 39 (hate crimes); G. L. c. 272, § 98 (public accommodation); G. L. c. 76, § 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass.
298, 318 N.E.2d 478 (1974) (decriminalization of private consensual adult
conduct); Doe v. Doe, 16 Mass. App.
Ct. 499, 503, 452 N.E.2d 293 (1983) (custody to homosexual parent not per
se prohibited). The department has had more than ample opportunity to
articulate a constitutionally adequate justification for limiting civil
marriage to opposite-sex unions. It has failed to do so. The department has
offered purported justifications for the civil marriage restriction that are
starkly at odds with the comprehensive network of vigorous, gender-neutral
laws promoting stable families and the best interests of children. It has
failed to identify any relevant characteristic that would justify shutting
the door to civil marriage to a person who wishes to marry someone of the
same sex. 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. n33 "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, 80
L. Ed. 2d 421, 104 S. Ct. 1879 (1984) (construing Fourteenth Amendment).
Limiting the protections, benefits, and obligations of civil marriage to
opposite-sex couples violates the basic premises of individual liberty and
equality under law protected by the Massachusetts Constitution. n33 It is not dispositive, for
purposes of our constitutional analysis, whether the Legislature, at the time
it incorporated the common-law definition of marriage into the first marriage
laws nearly three centuries ago, did so with the intent of discriminating
against or harming persons who wish to marry another of the same sex. We are
not required to impute an invidious intent to the Legislature in determining
that a statute of long standing has no applicability to present circumstances
or violates the rights of individuals under the Massachusetts Constitution.
That the Legislature may have intended what at the time of enactment was a
perfectly reasonable form of discrimination -- or a result not recognized as
a form of discrimination -- was not enough to salvage from later
constitutional challenge laws burdening nonmarital children or denying
women's equal partnership in marriage. See, e.g., Trimble v. Gordon, 430 U.S. 762, 52 L.
Ed. 2d 31, 97 S. Ct. 1459 (1977) (nonmarital children); Angelini v. OMD Corp., 410 Mass. 653,
662, 663, 575 N.E.2d 41 (1987) ("The traditional common law rules
which discriminated against children born out of wedlock have been
discarded" and "we have recognized that placing additional burdens
on [nonmarital] children is unfair because they are not responsible for their
[status]"); Silvia v. Silvia,
9 Mass. App. Ct. 339, 340-341, 400 N.E.2d 1330 (1980) (there now exists
"a comprehensive statutory and common law pattern which places marital
and parental obligations on both the husband and wife"). We are
concerned with the operation of challenged laws on the parties before us, and
we do not inhibit our inquiry on the ground that a statute's original
enactors had a benign or at the time constitutionally unassailable purpose.
See Colo v. Treasurer &
Receiver Gen., 378 Mass. 550, 557, 392 N.E.2d 1195 (1979), quoting Walz v. Tax Comm'n of the City of N.Y.,
397 U.S. 664, 678, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) ("the
mere fact that a certain practice has gone unchallenged for a long period of
time cannot alone immunize it from constitutional invalidity, 'even when that
span of time covers our entire national existence and indeed predates
it'"); Merit Oil Co. v. Director
of Div. on the Necessaries of Life, 319 Mass. 301, 305, 65 N.E.2d 529 (1946)
(constitutional contours of State's regulatory authority coextensive
"with the changing needs of society"). IV We consider next the plaintiffs' request for relief. We
preserve as much of the statute as may be preserved in the face of the successful
constitutional challenge. See Mayor of Boston v. Treasurer &
Receiver Gen., 384 Mass. 718, 725, 429 N.E.2d 691 (1981); Dalli v. Board of Educ., 358 Mass. 753,
759, 267 N.E.2d 219 (1971). See also G. L. c. 4, § 6, Eleventh. Here, no one argues that striking down the marriage laws
is an appropriate form of relief. Eliminating civil marriage would be wholly
inconsistent with the Legislature's deep commitment to fostering stable
families and would dismantle a vital organizing principle of our society. n34
We face a problem similar to one that recently confronted the Court of Appeal
for Ontario, the highest court of that Canadian province, when it considered
the constitutionality of the same-sex marriage ban under Canada's Federal
Constitution, the Charter of Rights and Freedoms (Charter). See Halpern v.
Toronto (City), 172 O.A.C. 276 (2003). Canada, like the United States,
adopted the common law of England that civil marriage is "the voluntary
union for life of one man and one woman, to the exclusion of all
others." Id. at par. (36), quoting Hyde v. Hyde, [1861-1873] All E.R.
175 (1866). In holding that the limitation of civil marriage to opposite-sex
couples violated the Charter, the Court of Appeal refined the common-law
meaning of marriage. We concur with
this remedy, which is entirely consonant with established principles of
jurisprudence empowering a court to refine a common-law principle in light of
evolving constitutional standards. See
Powers v. Wilkinson, 399 Mass. 650, 661-662, 506 N.E.2d 842 (1987)
(reforming common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629, 351
N.E.2d 526 (1976) (abolishing common-law rule of certain interspousal
immunity). n34 Similarly, no one argues that
the restrictions on incestuous or polygamous marriages are so dependent on
the marriage restriction that they too should fall if the marriage
restriction falls. Nothing in our opinion today should be construed as
relaxing or abrogating the consanguinity or polygamy prohibitions of our
marriage laws. See G. L. c. 207, § §
1, 2, and 4. Rather, the statutory provisions concerning consanguinity
or polygamous marriages shall be construed in a gender neutral manner.
See Califano v. Westcott, 443 U.S.
76, 92-93, 61 L. Ed. 2d 382, 99 S. Ct. 2655 (1979) (construing word
"father" in unconstitutional, underinclusive provision to mean
"parent"); Browne's Case,
322 Mass. 429, 430, 77 N.E.2d 649 (1948) (construing masculine pronoun
"his" to include feminine pronoun "her"). See also G. L.
c. 4, § 6, Fourth ("words of one
gender may be construed to include the other gender and the neuter"
unless such construction would be "inconsistent with the manifest intent
of the law-making body or repugnant to the context of the same statute"). We construe civil marriage to mean the voluntary union
of two persons as spouses, to the exclusion of all others. This reformulation
redresses the plaintiffs' constitutional injury and furthers the aim of
marriage to promote stable, exclusive relationships. It advances the two
legitimate State interests the department has identified: providing a stable
setting for child rearing and conserving State resources. It leaves intact
the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171,
175, 449 N.E.2d 357 (1983). In their complaint the plaintiffs request only a
declaration that their exclusion and the exclusion of other qualified
same-sex couples from access to civil marriage violates Massachusetts
law. 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. See, e.g., Michaud
v. Sheriff of Essex County, 390 Mass. 523, 535-536, 458 N.E.2d 702 (1983). So ordered. GREANEY, J. (concurring). I agree with the result
reached by the court, the remedy ordered, and much of the reasoning in the
court's opinion. In my view, however, the case is more directly resolved
using traditional equal protection analysis. (a) Article 1 of the Declaration of Rights, as amended
by art. 106 of the Amendments to the Massachusetts Constitution, provides: "All people are born free and equal and have
certain natural, essential and unalienable rights; among which may be
reckoned the right of enjoying and defending their lives and liberties; that
of acquiring, possessing and protecting property; in fine, that of seeking
and obtaining their safety and happiness. Equality under the law shall not be
denied or abridged because of sex, race, color, creed or national
origin." This provision, even prior to its amendment, guaranteed
to all people in the Commonwealth -- equally -- the enjoyment of rights that
are deemed important or fundamental. The withholding of relief from the
plaintiffs, who wish to marry, and are otherwise eligible to marry, on the
ground that the couples are of the same gender, constitutes a categorical
restriction of a fundamental right. The restriction creates a straightforward
case of discrimination that disqualifies an entire group of our citizens and
their families from participation in an institution of paramount legal and
social importance. This is impermissible under art. 1. Analysis begins with the indisputable premise that the
deprivation suffered by the plaintiffs is no mere legal inconvenience. The
right to marry is not a privilege conferred by the State, but a fundamental
right that is protected against unwarranted State interference. See Zablocki v. Redhail, 434 U.S. 374, 384,
54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) ("the right to marry is of
fundamental importance for all individuals"); Loving v. Virginia, 388 U.S. 1, 12, 18
L. Ed. 2d 1010, 87 S. Ct. 1817 (1967) (freedom to marry is "one of the
vital personal rights essential to the orderly pursuit of happiness by free
men" under due process clause of Fourteenth Amendment); Skinner v. Oklahoma, 316 U.S. 535, 541,
86 L. Ed. 1655, 62 S. Ct. 1110 (1942) (marriage is one of "basic civil
rights of man"). See also Turner
v. Safley, 482 U.S. 78, 95-96, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987)
(prisoners' right to marry is constitutionally protected). This right is
essentially vitiated if one is denied the right to marry a person of one's
choice. See Zablocki v. Redhail,
supra at 384 (all recent decisions of United States Supreme Court place
"the decision to marry as among the personal decisions protected by the
right of privacy"). n1 n1 It makes no difference
that the referenced decisions consider the right to marry in the context of
the Fourteenth Amendment to the United States Constitution rather than in the
context of our Constitution. As explained by the court, ante at n.18, a
fundamental right under the Federal Constitution enjoys at least a comparable
measure of protection under our State Constitution. See Moe v. Secretary of Admin. & Fin.,
382 Mass. 629, 651, 417 N.E.2d 387 (1981). Because our marriage statutes intend, and state, the
ordinary understanding that marriage under our law consists only of a union
between a man and a woman, they create a statutory classification based on
the sex of the two people who wish to marry. See Baehr v. Lewin, 74 Haw. 530, 564, 852
P.2d 44 (1993) (plurality opinion) (Hawaii marriage statutes created
sex-based classification); Baker v.
State, 170 Vt. 194, 253, 744 A.2d 864 (1999) (Johnson, J., concurring in
part and dissenting in part) (same). That the classification is sex based is
self-evident. The marriage statutes prohibit some applicants, such as the
plaintiffs, from obtaining a marriage license, and that prohibition is based
solely on the applicants' gender. As a factual matter, an individual's choice
of marital partner is constrained because of his or her own sex. Stated in
particular terms, Hillary Goodridge cannot marry Julie Goodridge because she
(Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell
because he (Gary) is a man. Only their gender prevents Hillary and Gary from
marrying their chosen partners under the present law. n2 n2 In her separate opinion
in Baker v. State, 170 Vt. 194,
253, 744 A.2d 864 (1999) (Johnson, J., concurring in part and dissenting
in part), Justice Johnson described the equal protection defect in Vermont's
marriage statutes in a slightly different, but no less persuasive, fashion: "A woman is denied the right
to marry another woman because her would-be partner is a woman, not because
one or both are lesbians. Similarly, a man is denied the right to marry
another man because his would-be partner is a man, not because one or both
are gay. Thus, an individual's right to marry a person of the same sex is
prohibited solely on the basis of sex, not on the basis of sexual
orientation. Indeed, sexual orientation does not appear as a qualification
for marriage under the marriage statutes. The State makes no inquiry into the
sexual practices or identities of a couple seeking a license." A classification may be gender based whether or not the
challenged government action apportions benefits or burdens uniformly along
gender lines. This is so because constitutional protections extend to
individuals and not to categories of people. Thus, when an individual desires
to marry, but cannot marry his or her chosen partner because of the
traditional opposite-sex restriction, a violation of art. 1 has occurred.
See Commonwealth v. Chou, 433 Mass.
229, 237-238, 741 N.E.2d 17 (2001) (assuming statute enforceable only
across gender lines may offend Massachusetts equal rights amendment). I find
it disingenuous, at best, to suggest that such an individual's right to marry
has not been burdened at all, because he or she remains free to chose another
partner, who is of the opposite sex. The equal protection infirmity at work here is
strikingly similar to (although, perhaps, more subtle than) the invidious
discrimination perpetuated by Virginia's antimiscegenation laws and unveiled
in the decision of Loving v.
Virginia, supra. In its landmark decision striking down Virginia's ban on
marriages between Caucasians and members of any other race on both equal
protection and substantive due process grounds, the United States Supreme
Court soundly rejected the proposition that the equal application of the ban
(i.e., that it applied equally to whites and blacks) made unnecessary the
strict scrutiny analysis traditionally required of statutes drawing
classifications according to race, see
id. at 8-9, and concluded that "restricting the freedom to
marry solely because of racial classifications violates the central meaning
of the Equal Protection Clause." Id.
at 12. That our marriage laws, unlike antimiscegenation laws, were not
enacted purposely to discriminate in no way neutralizes their present
discriminatory character. With these two propositions established (the
infringement on a fundamental right and a sex-based classification), the
enforcement of the marriage statutes as they are currently understood is
forbidden by our Constitution unless the State can present a compelling purpose
furthered by the statutes that can be accomplished in no other reasonable
manner. n3 See Blixt v. Blixt, 437
Mass. 649, 655-656, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 154 L. Ed. 2d 1022, 123
S. Ct. 1259 (2003); Lowell v. Kowalski, 380 Mass. 663, 667-669, 405
N.E.2d 135 (1980). This the State has not done. The justifications put
forth by the State to sustain the statute's exclusion of the plaintiffs are
insufficient for the reasons explained by the court, to which I add the
following observations. n3 Some might say
that the use of the so-called strict scrutiny formula is too facile in the
sense that, once a court focuses on the formula as a dispositional tool, the
result is automatically preordained -- the statute will fail because the State
cannot possibly sustain its heavy burden to overcome the presumption of
arbitrary and invidious discrimination. This is not so. See, e.g., Blixt v. Blixt, 437 Mass. 649, 656-657,
774 N.E.2d 1052 (2002), cert. denied,
537 U.S. 1189, 154 L. Ed. 2d 1022, 123 S. Ct. 1259 (2003)
(concluding G. L. c. 119, § 39D,
grandparent visitation statute, furthered compelling State interest in
mitigating potential harm to children in nonintact families). The rights of couples to have children, to adopt, and to
be foster parents, regardless of sexual orientation and marital status, are
firmly established. See E.N.O. v. L.M.M.,
429 Mass. 824, 829, 711 N.E.2d 886, cert. denied, 528 U.S. 1005, 145 L. Ed. 2d 386, 120 S.
Ct. 500 (1999); Adoption of
Tammy, 416 Mass. 205, 210-211, 619 N.E.2d 315 (1993). As recognized in
the court's opinion, and demonstrated by the record in this case, however,
the State's refusal to accord legal recognition to unions of same-sex couples
has had the effect of creating a system in which children of same-sex couples
are unable to partake of legal protections and social benefits taken for
granted by children in families whose parents are of the opposite sex. The
continued maintenance of this caste-like system is irreconcilable with,
indeed, totally repugnant to, the State's strong interest in the welfare of
all children and its primary focus, in the context of family law where
children are concerned, on "the best interests of the child." The
issue at stake is not one, as might ordinarily be the case, that can be
unilaterally and totally deferred to the wisdom of the Legislature.
"While the State retains wide latitude to decide the manner in which it
will allocate benefits, it may not use criteria which discriminatorily burden
the exercise of a fundamental right."
Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652, 417
N.E.2d 387 (1981). Nor can the State's wish to conserve resources be
accomplished by invidious distinctions between classes of citizens. See Plyler v. Doe, 457 U.S. 202, 216-217,
227, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). n4 n4 The argument, made by some in
the case, that legalization of same-sex marriage in Massachusetts will be
used by persons in other States as a tool to obtain recognition of a marriage
in their State that is otherwise unlawful, is precluded by the provisions of
G. L. c. 207, § § 11, 12, and 13. A comment is in
order with respect to the insistence of some that marriage is, as a matter of
definition, the legal union of a man and a woman. To define the institution
of marriage by the characteristics of those to whom it always has been
accessible, in order to justify the exclusion of those to whom it never has
been accessible, is conclusory and bypasses the core question we are asked to decide. n5 This
case calls for a higher level of legal analysis. Precisely, the case requires
that we confront ingrained assumptions with respect to historically accepted
roles of men and women within the institution of marriage and requires that
we reexamine these assumptions in light of the unequivocal language of art.
1, in order to ensure that the governmental conduct challenged here conforms
to the supreme charter of our Commonwealth. "A written constitution is
the fundamental law for the government of a sovereign State. It is the final
statement of the rights, privileges and obligations of the citizens and the
ultimate grant of the powers and the conclusive definition of the limitations
of the departments of State and of public officers . . . . To its provisions
the conduct of all governmental affairs must conform. From its terms there is
no appeal." Loring v. Young,
239 Mass. 349, 376-377, 132 N.E. 65 (1921). I do not doubt the sincerity
of deeply held moral or religious beliefs that make inconceivable to some the
notion that any change in the common- law definition of what constitutes a
legal civil marriage is now, or ever would be, warranted. But, as matter of
constitutional law, neither the mantra of tradition, nor individual
conviction, can justify the perpetuation of a hierarchy in which couples of
the same sex and their families are deemed less worthy of social and legal
recognition than couples of the opposite sex and their families. See Lawrence v. Texas, 539 U.S. 558, 156 L.
Ed. 2d 508, 123 S. Ct. 2472, 2486 (2003) (O'Connor, J., concurring)
(moral disapproval, with no other valid State interest, cannot justify law
that discriminates against groups of persons); Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 850, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) ("Our
obligation is to define the liberty of all, not to mandate our own moral
code"). n5 Because marriage is, by all
accounts, the cornerstone of our social structure, as well as the defining relationship
in our personal lives, confining eligibility in the institution, and all of
its accompanying benefits and responsibilities, to opposite-sex couples is
basely unfair. To justify the restriction in our marriage laws by accusing
the plaintiffs of attempting to change the institution of marriage itself,
terminates the debate at the outset without any accompanying reasoned
analysis. (b) I am hopeful
that our decision will be accepted by those thoughtful citizens who believe
that same-sex unions should not be approved by the State. I am not referring
here to acceptance in the sense of grudging acknowledgment of the court's
authority to adjudicate the matter. My hope is more liberating. The
plaintiffs are members of our community, our neighbors, our coworkers, our
friends. As pointed out by the court, their professions include investment
advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs
volunteer in our schools, worship beside us in our religious houses, and have
children who play with our children, to mention just a few ordinary daily
contacts. We share a common humanity and participate together in the social
contract that is the foundation of our Commonwealth. Simple principles of
decency dictate that we extend to
the plaintiffs, and to their new status, full acceptance, tolerance, and
respect. We should do so because it is the right thing to do. The union of
two people contemplated by G. L. c. 207 "is a coming together for better
or for worse, hopefully enduring, and intimate to the degree of being sacred.
It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in
our prior decisions." Griswold
v. Connecticut, 381 U.S. 479, 486, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).
Because of the terms of art. 1, the plaintiffs will no longer be excluded
from that association. n6 n6 Justice Cordy's separate
opinion points out, correctly, that, when art. 1 was revised by the people in
1976, it was not then intended to be relied on to approve same-sex marriage.
Post at (Cordy, J., dissenting). (Justice Spina adverts to the same
proposition in his separate opinion, post at [Spina, J., dissenting]).
Decisions construing the provision cited in Justice Cordy's opinion are
interesting, but obviously inapposite because they have not dealt in any
significant way with the issue before us. Nonetheless, the separate opinion
concludes, from what was intended in 1976, and from various cases discussing
art. 1, that the revised provision cannot be used to justify the result I
reach. In so reasoning, the separate
opinion places itself squarely on the side of the original intent school of
constitutional interpretation. As a general principle, I do not accept the
philosophy of the school. The Massachusetts Constitution was never meant to
create dogma that adopts inflexible views of one time to deny lawful rights
to those who live in another. The provisions of our Constitution are, and
must be, adaptable to changing circumstances and new societal phenomena, and,
unless and until the people speak again on a specific subject, conformable in
their concepts of liberty and equality to what is fair, right, and just. I am
cognizant of the voters' intent in passing the amendment to art. 1 in 1976.
Were the revision alone the basis for change, I would be reluctant to
construe it favorably to the plaintiffs, in view of the amendment's recent
passage and the voters' intent. The court's opinion, however, rests in part
on well-established principles of equal protection that are independent of
the amendment. It is on these principles that I base my opinion. SPINA, J. (dissenting, with whom Sosman and Cordy, JJ.,
join). What is at stake in this case is not the unequal treatment of
individuals or whether individual rights have been impermissibly burdened,
but the power of the Legislature to effectuate social change without
interference from the courts, pursuant to art. 30 of the Massachusetts
Declaration of Rights. n1 The power to regulate marriage lies with the
Legislature, not with the judiciary. See
Commonwealth v. Stowell, 389 Mass. 171, 175, 449 N.E.2d 357 (1983).
Today, the court has transformed its role as protector of individual rights
into the role of creator of rights, and I respectfully dissent. n1 Article 30 of the
Massachusetts Declaration of Rights provides that "the judicial
[department] shall never exercise the legislative and executive powers . . .
to the end it may be a government of laws and not of men." 1. Equal protection. Although the court did not address
the plaintiffs' gender discrimination claim, G. L. c. 207 does not
unconstitutionally discriminate on the basis of gender. n2 A claim of gender
discrimination will lie where it is shown that differential treatment
disadvantages one sex over the other. See
Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378
Mass. 342, 349-352, 393 N.E.2d 284 (1979). See also United States v. Virginia, 518 U.S. 515,
135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996). General Laws c. 207 enumerates
certain qualifications for obtaining a marriage license. It creates no
distinction between the sexes, but applies to men and women in precisely the
same way. It does not create any disadvantage identified with gender, as both
men and women are similarly limited to marrying a person of the opposite sex.
See Commonwealth v. King, 374 Mass.
5, 15-22, 372 N.E.2d 196 (1977) (law prohibiting prostitution not
discriminatory based on gender because of equal application to men and
women). n2 Article 1 of the Massachusetts
Declaration of Rights, as amended by art. 106 of the Amendments, the Equal
Rights Amendment, states: "Equality under the law shall not be denied or
abridged because of sex, race, color, creed or national origin." Similarly, the marriage statutes do not discriminate on
the basis of sexual orientation. As the court correctly recognizes,
constitutional protections are extended to individuals, not couples. Ante
n.15. The marriage statutes do not disqualify individuals on the basis of
sexual orientation from entering into marriage. All individuals, with certain
exceptions not relevant here, are free to marry. Whether an individual
chooses not to marry because of sexual orientation or any other reason should
be of no concern to the court. The court concludes, however, that G. L. c. 207
unconstitutionally discriminates against the individual plaintiffs because it
denies them the "right to marry the person of one's choice" where
that person is of the same sex. Ante at . To reach this result the court
relies on Loving v. Virginia, 388
U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967), and transforms
"choice" into the essential element of the institution of marriage.
The Loving case did not use the word "choice" in this manner, and
it did not point to the result that the court reaches today. In Loving, the
Supreme Court struck down as unconstitutional a statute that prohibited
Caucasians from marrying non-Caucasians. It concluded that the statute was
intended to preserve white supremacy and invidiously discriminated against
non-Caucasians because of their race. See
id. at 11-12. The "choice" to which the Supreme Court
referred was the "choice to marry," and it concluded that with
respect to the institution of marriage, the State had no compelling interest
in limiting the choice to marry along racial lines. Id. The Supreme Court did
not imply the existence of a right to marry a person of the same sex. To the
same effect is Perez v. Sharp, 32
Cal.2d 711, 198 P.2d 17 (1948), on which the court also relies. Unlike the Loving and Sharp cases, the Massachusetts
Legislature has erected no barrier to marriage that intentionally
discriminates against anyone. Within the institution of marriage, n3 anyone
is free to marry, with certain exceptions that are not challenged. In the
absence of any discriminatory purpose, the State's marriage statutes do not
violate principles of equal protection. See
Washington v. Davis, 426 U.S. 229, 240, 48 L. Ed. 2d 597, 96 S. Ct.
2040 (1976) ("invidious quality of a law claimed to be . . .
discriminatory must ultimately be traced to a . . . discriminatory
purpose"); Dickerson v.
Attorney Gen., 396 Mass. 740, 743, 488 N.E.2d 757 (1986) (for purpose of
equal protection analysis, standard of review under State and Federal
Constitutions is identical). See also
Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, supra.
This court should not have invoked even the most deferential standard of
review within equal protection analysis because no individual was denied
access to the institution of marriage. n3 Marriage is the civil union
between a single man and a single woman. See
Milford v. Worcester, 7 Mass. 48, 52 (1810). 2. Due process. The marriage statutes do not
impermissibly burden a right protected by our constitutional guarantee of due
process implicit in art. 10 of our Declaration of Rights. There is no
restriction on the right of any plaintiff to enter into marriage. Each is
free to marry a willing person of the opposite sex. Cf. Zablocki v. Redhail, 434 U.S. 374, 54 L.
Ed. 2d 618, 98 S. Ct. 673 (1978) (fundamental right to marry
impermissibly burdened by statute requiring court approval when subject to
child support order). Substantive due process protects individual rights
against unwarranted government intrusion. See
Aime v. Commonwealth, 414 Mass. 667, 673, 611 N.E.2d 204 (1993).
The court states, as we have said on many occasions, that the Massachusetts
Declaration of Rights may protect a right in ways that exceed the protection
afforded by the Federal Constitution. Ante at . See Arizona v. Evans, 514 U.S. 1, 8, 131 L.
Ed. 2d 34, 115 S. Ct. 1185 (1995) (State courts afforded broader
protection of rights than granted by United States Constitution). However,
today the court does not fashion a remedy that affords greater protection of
a right. Instead, using the rubric of due process, it has redefined marriage. Although art. 10 may afford greater protection of rights
than the due process clause of the Fourteenth Amendment, our treatment of due
process challenges adheres to the same standards followed in Federal due
process analysis. See Commonwealth v. Ellis, 429 Mass. 362,
371, 708 N.E.2d 644 (1999). When analyzing a claim that the State has
impermissibly burdened an individual's fundamental or other right or liberty
interest, "we begin by sketching the contours of the right asserted. We
then inquire whether the challenged restriction burdens that right." Moe v. Secretary of Admin. & Fin.,
382 Mass. 629, 646, 417 N.E.2d 387 (1981). Where a right deemed
"fundamental" is implicated, the challenged restriction will be
upheld only if it is "narrowly tailored to further a legitimate and
compelling governmental interest."
Aime v. Commonwealth, supra at 673. To qualify as
"fundamental" the asserted right must be "objectively, 'deeply
rooted in this Nation's history and tradition,' [ Moore v. East Cleveland,
431 U.S. 494, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plurality
opinion)] . . . and 'implicit in the concept of ordered liberty,' such that
'neither liberty nor justice would exist if they were sacrificed.'" Washington v. Glucksberg, 521 U.S. 702,
720-721, 138 L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct. 2302 (1997),
quoting Palko v. Connecticut, 302
U.S. 319, 325, 326, 82 L. Ed. 288, 58 S. Ct. 149 (1937) (right to
assisted suicide does not fall within fundamental right to refuse medical
treatment because novel and unsupported by tradition) (citations omitted).
See Three Juveniles v.
Commonwealth, 390 Mass. 357, 367, 455 N.E.2d 1203 (1983) (O'Connor, J.,
dissenting), cert. denied sub nom. Keefe
v. Massachusetts, 465 U.S. 1068, 79 L. Ed. 2d 746, 104 S. Ct. 1421 (1984).
Rights that are not considered fundamental merit due process protection if
they have been irrationally burdened. See
Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763,
777-779, 767 N.E.2d 549 & n.14 (2002). Although this court did not state that same-sex marriage
is a fundamental right worthy of strict scrutiny protection, it nonetheless
deemed it a constitutionally protected right by applying rational basis
review. Before applying any level of constitutional analysis there must be a
recognized right at stake. Same-sex marriage, or the "right to marry the
person of one's choice" as the court today defines that right, does not
fall within the fundamental right to marry. Same-sex marriage is not
"deeply rooted in this Nation's history," and the court does not
suggest that it is. Except for the occasional isolated decision in recent
years, see, e.g., Baker v. State,
170 Vt. 194, 744 A.2d 864 (1999), same-sex marriage is not a right,
fundamental or otherwise, recognized in this country. Just one example of the
Legislature's refusal to recognize same-sex marriage can be found in a
section of the legislation amending G. L. c. 151B to prohibit discrimination
in the workplace on the basis of sexual orientation, which states:
"Nothing in this act shall be construed so as to legitimize or validate
a 'homosexual marriage'. . . ." St. 1989, c. 516, § 19. In this Commonwealth and in this
country, the roots of the institution of marriage are deeply set in history
as a civil union between a single man and a single woman. There is no basis
for the court to recognize same-sex marriage as a constitutionally protected
right. 3. Remedy. The remedy that the court has fashioned both
in the name of equal protection and due process exceeds the bounds of
judicial restraint mandated by art. 30. The remedy that construes
gender-specific language as gender-neutral amounts to a statutory revision
that replaces the intent of the Legislature with that of the court. Article
30 permits the court to apply principles of equal protection and to modify
statutory language only if legislative intent is preserved. See, e.g., Commonwealth v. Chou, 433 Mass. 229,
238-239, 741 N.E.2d 17 (2001) (judicial rewriting of gender language
permissible only when Legislature intended to include both men and women).
See also Lowell v. Kowalski, 380
Mass. 663, 670, 405 N.E.2d 135 (1980). Here, the alteration of the
gender-specific language alters precisely what the Legislature unambiguously
intended to preserve, the marital rights of single men and women. Such a
dramatic change in social institutions must remain at the behest of the
people through the democratic process. Where the application of equal protection principles do
not permit rewriting a statute in a manner that preserves the intent of the
Legislature, we do not rewrite the statute. In Dalli v. Board of Educ., 358 Mass. 753,
267 N.E.2d 219 (1971), the court refused to rewrite a statute in a manner
that would include unintended individuals. "To attempt to interpret this
[statute] as including those in the category of the plaintiff would be to
engage in a judicial enlargement of the clear statutory language beyond the
limit of our judicial function. We have traditionally and consistently
declined to trespass on legislative territory in deference to the time tested
wisdom of the separation of powers as expressed in art. [30] of the
Declaration of Rights of the Constitution of Massachusetts even when it
appeared that a highly desirable and just result might thus be
achieved." Id. at 759.
Recently, in Connors v. Boston, 430
Mass. 31, 714 N.E.2d 335 (1999), we refused to expand health insurance
coverage to include domestic partners because such an expansion was within
the province of the Legislature, where policy affecting family relationships
is most appropriate and frequently considered. Id. at 42-43. Principles of equal
protection do not permit the marriage statutes to be changed in the manner
that we have seen today. This court has previously exercised the judicial
restraint mandated by art. 30 and declined to extend due process protection
to rights not traditionally coveted, despite recognition of their social
importance. See Tobin's Case, 424
Mass. 250, 252-253, 675 N.E.2d 781 (1997) (receiving workers'
compensation benefits not fundamental right);
Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129,
653 N.E.2d 1088 (1995) (declaring education not fundamental right); Williams v. Secretary of the Executive
Office of Human Servs., 414 Mass. 551, 565, 609 N.E.2d 447 (1993) (no
fundamental right to receive mental health services); Matter of Tocci, 413 Mass. 542, 548 n.4,
600 N.E.2d 577 (1992) (no fundamental right to practice law); Commonwealth v. Henry's Drywall Co., 366
Mass. 539, 542, 320 N.E.2d 911 (1974) (no fundamental right to pursue
one's business). Courts have authority to recognize rights that are supported
by the Constitution and history, but the power to create novel rights is
reserved for the people through the democratic and legislative processes. Likewise, the Supreme Court exercises restraint in the
application of substantive due process "'because guideposts for
responsible decisionmaking in this unchartered area are scarce and
open-ended.' [ Collins v. Harker Heights, 503 U.S. 115, 125, 117 L. Ed. 2d
261, 112 S. Ct. 1061 (1992).] By extending constitutional protection to
an asserted right or liberty interest, we, to a great extent, place the
matter outside the arena of public debate and legislative action. We must
therefore 'exercise the utmost care whenever we are asked to break new ground
in this field,' [id.], lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences of the Members of this
Court, Moore [v. East Cleveland,
431 U.S. 494, 502, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977)] (plurality opinion)." Washington v. Glucksberg, supra at 720. The court has extruded a new right from principles of
substantive due process, and in doing so it has distorted the meaning and
purpose of due process. The purpose of substantive due process is to protect
existing rights, not to create new rights. Its aim is to thwart government
intrusion, not invite it. The court asserts that the Massachusetts
Declaration of Rights serves to guard against government intrusion into each
individual's sphere of privacy. Ante at . Similarly, the Supreme Court has
called for increased due process protection when individual privacy and
intimacy are threatened by unnecessary government imposition. See, e.g., Lawrence v. Texas, 539 U.S. 558, 156 L.
Ed. 2d 508, 123 S. Ct. 2472 (2003) (private nature of sexual behavior
implicates increased due process protection);
Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029
(1972) (privacy protection extended to procreation decisions within
nonmarital context); Griswold v.
Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (due
process invoked because of intimate nature of procreation decisions). These
cases, along with the Moe case, focus on the threat to privacy when
government seeks to regulate the most intimate activity behind bedroom doors.
The statute in question does not seek to regulate intimate activity within an
intimate relationship, but merely gives formal recognition to a particular
marriage. The State has respected the private lives of the plaintiffs, and
has done nothing to intrude in the relationships that each of the plaintiff
couples enjoy. Cf. Lawrence v. Texas,
supra at 2484 (case "does not involve whether the government must give
formal recognition to any relationship that homosexual persons seek to
enter"). Ironically, by extending the marriage laws to same-sex couples
the court has turned substantive due process on its head and used it to
interject government into the plaintiffs' lives. SOSMAN, J. (dissenting, with whom Spina and Cordy, JJ.,
join). In applying the rational basis test to any challenged statutory
scheme, the issue is not whether the Legislature's rationale behind that
scheme is persuasive to us, but only whether it satisfies a minimal threshold
of rationality. Today, rather than apply that test, the court announces that,
because it is persuaded that there are no differences between same-sex and
opposite-sex couples, the Legislature has no rational basis for treating them
differently with respect to the granting of marriage licenses. n1 Reduced to
its essence, the court's opinion concludes that, because same-sex couples are
now raising children, and withholding the benefits of civil marriage from
their union makes it harder for them to raise those children, the State must
therefore provide the benefits of civil marriage to same-sex couples just as
it does to opposite-sex couples. Of course, many people are raising children
outside the confines of traditional marriage, and, by definition, those
children are being deprived of the various benefits that would flow if they
were being raised in a household with married parents. That does not mean
that the Legislature must accord the full benefits of marital status on every
household raising children. Rather, the Legislature need only have some
rational basis for concluding that, at present, 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. People are of course at liberty to raise their
children in various family structures, as long as they are not literally
harming their children by doing so. See
Blixt v. Blixt, 437 Mass. 649, 668-670, 774 N.E.2d 1052 (2002)
(Sosman, J., dissenting), cert. denied,
537 U.S. 1189, 154 L. Ed. 2d 1022, 123 S. Ct. 1259 (2003). That
does not mean that the State is required to provide identical forms of
encouragement, endorsement, and support to all of the infinite variety of
household structures that a free society permits. n1 The one difference that the
court acknowledges -- that sexual relations between persons of the same sex
does not result in pregnancy and childbirth -- it immediately brushes aside
on the theory that civil marriage somehow has nothing to do with begetting
children. Ante at - . For the reasons explained in detail in Justice Cordy's
dissent, in which I join, the reasons justifying the civil marriage laws are
inextricably linked to the fact that human sexual intercourse between a man
and a woman frequently results in pregnancy and childbirth. Indeed, as
Justice Cordy outlines, that fact lies at the core of why society fashioned
the institution of marriage in the first place. Post at (Cordy, J.,
dissenting). Based on our own philosophy of child rearing, and on our
observations of the children being raised by same-sex couples to whom we are
personally close, we may be of the view that what matters to children is not
the gender, or sexual orientation, or even the number of the adults who raise
them, but rather whether those adults provide the children with a nurturing,
stable, safe, consistent, and supportive environment in which to mature.
Same-sex couples can provide their children with the requisite nurturing,
stable, safe, consistent, and supportive environment in which to mature, just
as opposite-sex couples do. It is therefore understandable that the court
might view the traditional definition of marriage as an unnecessary
anachronism, rooted in historical prejudices that modern society has in large
measure rejected and biological limitations that modern science has overcome. It is not, however, our assessment that matters.
Conspicuously absent from the court's opinion today is any acknowledgment that
the attempts at scientific study of the ramifications of raising children in
same-sex couple households are themselves in their infancy and have so far
produced inconclusive and conflicting results. Notwithstanding our belief
that gender and sexual orientation of parents should not matter to the
success of the child rearing venture, studies to date reveal that there are
still some observable differences between children raised by opposite-sex
couples and children raised by same-sex couples. See post at - (Cordy, J.,
dissenting). Interpretation of the
data gathered by those studies then becomes clouded by the personal and
political beliefs of the investigators, both as to whether the differences
identified are positive or negative, and as to the untested explanations of
what might account for those differences. (This is hardly the first time in
history that the ostensible steel of the scientific method has melted and
buckled under the intense heat of political and religious passions.) Even in
the absence of bias or political agenda behind the various studies of
children raised by same-sex couples, the most neutral and strict application
of scientific principles to this field would be constrained by the limited
period of observation that has been available. Gay and lesbian couples living
together openly, and official recognition of them as their children's sole
parents, comprise a very recent phenomenon, and the recency of that
phenomenon has not yet permitted any study of how those children fare as
adults and at best minimal study of how they fare during their adolescent
years. The Legislature can rationally view the state of the scientific
evidence as unsettled on the critical question it now faces: Are families
headed by same-sex parents equally successful in rearing children from
infancy to adulthood as families headed by parents of opposite sexes? Our
belief that children raised by same-sex couples should fare the same as
children raised in traditional families is just that: a passionately held but
utterly untested belief. The Legislature is not required to share that belief
but may, as the creator of the institution of civil marriage, wish to see the
proof before making a fundamental alteration to that institution. Although ostensibly applying the rational basis test to
the civil marriage statutes, it is abundantly apparent that the court is in
fact applying some undefined stricter standard to assess the
constitutionality of the marriage statutes' exclusion of same-sex couples.
While avoiding any express conclusion as to any of the proffered routes by
which that exclusion would be subjected to a test of strict scrutiny --
infringement of a fundamental right, discrimination based on gender, or
discrimination against gays and lesbians as a suspect classification -- the
opinion repeatedly alludes to those concepts in a prolonged and eloquent
prelude before articulating its view that the exclusion lacks even a rational
basis. See, e.g., ante at (noting that State Constitution is "more
protective of individual liberty and equality," demands "broader
protection for fundamental rights," and is "less tolerant of
government intrusion into the protected spheres of private life" than
Federal Constitution); ante at (describing decision to marry and choice of
marital partner as "among life's momentous acts of
self-definition"); ante at - (repeated references to "right to
marry" as "fundamental"); ante at - (repeated comparisons to
statutes prohibiting interracial marriage, which were predicated on suspect
classification of race); ante at - (characterizing ban on same-sex marriage
as "invidious" discrimination that "deprives individuals of
access to an institution of fundamental legal, personal, and social
significance" and again noting that Massachusetts Constitution "protects
matters of personal liberty against government incursion" more zealously
than Federal Constitution); ante at (characterizing "whom to marry, how
to express sexual intimacy, and whether and how to establish a family"
as "among the most basic of every individual's liberty and due process
rights"); id. ("liberty interest in choosing whether and whom to
marry would be hollow" if Commonwealth could "foreclose an
individual from freely choosing the person" to marry); ante at (opining
that in "overlapping realms of personal autonomy, marriage, family life,
and child rearing," characterized as "fundamentally private areas
of life," court uses "integrated" analysis instead of
"narrow focus"). See also ante at n.29 (suggesting that prohibition
on same-sex marriage "imposes limits on personal beliefs"); ante at
n.31 (suggesting that "total deference" to Legislature in this case
would be equivalent to "stripping" judiciary "of its
constitutional authority to decide challenges" in such areas as forced
sterilization, antimiscegenation statutes, and abortion, even though all
cited examples pertain to fundamental rights analyzed under strict scrutiny,
not under rational basis test); ante at (civil marriage as "a right of
fundamental importance"); ante at (noting State policy of
"preventing discrimination on the basis of sexual orientation");
id. (prohibition against same-sex marriage inconsistent with
"gender-neutral laws promoting stable families," and "rooted
in persistent prejudices against" homosexuals); ante at (prohibition
against same-sex marriage "violated the basic premises of individual
liberty"). In short, while claiming to apply a mere rational basis test,
the court's opinion works up an enormous head of steam by repeated
invocations of avenues by which to subject the statute to strict scrutiny,
apparently hoping that that head of steam will generate momentum sufficient
to propel the opinion across the yawning chasm of the very deferential
rational basis test. Shorn of these emotion-laden invocations, the opinion
ultimately opines that the Legislature is acting irrationally when it grants
benefits to a proven successful family structure while denying the same
benefits to a recent, perhaps promising, but essentially untested alternate
family structure. Placed in a more neutral context, the court would never
find any irrationality in such an approach. For example, if the issue were
government subsidies and tax benefits promoting use of an established
technology for energy efficient heating, the court would find no equal
protection or due process violation in the Legislature's decision not to
grant the same benefits to an inventor or manufacturer of some new,
alternative technology who did not yet have sufficient data to prove that
that new technology was just as good as the established technology. That the
early results from preliminary testing of the new technology might look very
promising, or that the theoretical underpinnings of the new technology might
appear flawless, would not make it irrational for the Legislature to grant
subsidies and tax breaks to the established technology and deny them to the
still unproved newcomer in the field. While programs that affect families and
children register higher on our emotional scale than programs affecting
energy efficiency, our standards for what is or is not "rational"
should not be bent by those emotional tugs. Where, as here, there is no
ground for applying strict scrutiny, the emotionally compelling nature of the
subject matter should not affect the manner in which we apply the rational
basis test. Or, to the extent that the court is going to invoke such
emotion-laden and value-laden rhetoric as a means of heightening the degree
of scrutiny to be applied, the same form of rhetoric can be employed to
justify the Legislature's proceeding with extreme caution in this area. In
considering whether the Legislature has a rational reason for postponing a
dramatic change to the definition of marriage, it is surely pertinent to the
inquiry to recognize that this proffered change affects not just a
load-bearing wall of our social structure but the very cornerstone of that
structure. See post at - (Cordy, J.,
dissenting). Before making a fundamental alteration to that cornerstone, it
is eminently rational for the Legislature to require a high degree of
certainty as to the precise consequences of that alteration, to make sure
that it can be done safely, without either temporary or lasting damage to the
structural integrity of the entire edifice. The court today blithely assumes that
there are no such dangers and that it is safe to proceed (see ante at -, an
assumption that is not supported by anything more than the court's blind
faith that it is so. More importantly, it is not our confidence in the lack
of adverse consequences that is at issue, or even whether that confidence is
justifiable. The issue is whether it is rational to reserve judgment on
whether this change can be made at this time without damaging the institution
of marriage or adversely affecting the critical role it has played in our
society. Absent consensus on the issue (which obviously does not exist), or
unanimity amongst scientists studying the issue (which also does not exist),
or a more prolonged period of observation of this new family structure (which
has not yet been possible), it is rational for the Legislature to postpone
any redefinition of marriage that would include same-sex couples until such
time as it is certain that that redefinition will not have unintended and
undesirable social consequences. Through the political process, the people
may decide when the benefits of extending civil marriage to same-sex couples
have been shown to outweigh whatever risks -- be they palpable or ephemeral
-- are involved. However minimal the risks of that redefinition of marriage
may seem to us from our vantage point, it is not up to us to decide what
risks society must run, and it is inappropriate for us to arrogate that power
to ourselves merely because we are confident that "it is the right thing
to do." Ante at (Greaney, J., concurring). As a matter of social history, today's opinion may
represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of
constitutional jurisprudence, however, the case stands as an aberration. To
reach the result it does, the court has tortured the rational basis test
beyond recognition. I fully appreciate the strength of the temptation to find
this particular law unconstitutional - there is much to be said for the
argument that excluding gay and lesbian couples from the benefits of civil
marriage is cruelly unfair and hopelessly outdated; the inability to marry
has a profound impact on the personal lives of committed gay and lesbian
couples (and their children) to whom we are personally close (our friends,
neighbors, family members, classmates, and co-workers); and our resolution of
this issue takes place under the intense glare of national and international
publicity. Speaking metaphorically, these factors have combined to turn the case
before us into a "perfect storm" of a constitutional question. In
my view, however, such factors make it all the more imperative that we adhere
precisely and scrupulously to the established guideposts of our
constitutional jurisprudence, a jurisprudence that makes the rational basis
test an extremely deferential one that focuses on the rationality, not the
persuasiveness, of the potential justifications for the classifications in
the legislative scheme. I trust that, once this particular "storm"
clears, we will return to the rational basis test as it has always been
understood and applied. Applying that deferential test in the manner it is
customarily applied, the exclusion of gay and lesbian couples from the
institution of civil marriage passes constitutional muster. I respectfully
dissent. CORDY, J. (dissenting, with whom Spina and Sosman, JJ.,
join). The court's opinion concludes that the Department of Public Health has
failed to identify any "constitutionally adequate reason" for
limiting civil marriage to opposite-sex unions, and that there is no
"reasonable relationship" between a disqualification of same-sex
couples who wish to enter into a civil marriage and the protection of public
health, safety, or general welfare. Consequently, it holds that the marriage
statute cannot withstand scrutiny under the Massachusetts Constitution.
Because I find these conclusions to be unsupportable in light of the nature
of the rights and regulations at issue, the presumption of constitutional
validity and significant deference afforded to legislative enactments, and
the "undesirability of the judiciary substituting its notions of correct
policy for that of a popularly elected Legislature" responsible for
making such policy, Zayre Corp. v. Attorney
Gen., 372 Mass. 423, 433, 362 N.E.2d 878 (1977), I respectfully dissent.
Although it may be desirable for many reasons to extend to same-sex couples
the benefits and burdens of civil marriage (and the plaintiffs have made a
powerfully reasoned case for that extension), that decision must be made by
the Legislature, not the court. If a statute either impairs the exercise of a
fundamental right protected by the due process or liberty provisions of our
State Constitution, or discriminates based on a constitutionally suspect classification
such as sex, it will be subject to strict scrutiny when its validity is
challenged. See Blixt v. Blixt, 437
Mass. 649, 655-656, 660-661, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 154 L. Ed. 2d 1022, 123
S. Ct. 1259 (2003) (fundamental right);
Lowell v. Kowalski, 380 Mass. 663, 666, 405 N.E.2d 135 (1980)
(sex-based classification). If it does neither, a statute "will be
upheld if it is 'rationally related to a legitimate State
purpose.'" Hallett v.
Wrentham, 398 Mass. 550, 557, 499 N.E.2d 1189 (1986), quoting Paro v. Longwood Hosp., 373 Mass. 645,
649, 369 N.E.2d 985 (1977). This test, referred to in State and Federal
constitutional jurisprudence as the "rational basis test," n1 is
virtually identical in substance and effect to the test applied to a law
promulgated under the State's broad police powers (pursuant to which the
marriage statutes and most other licensing and regulatory laws are enacted):
that is, the law is valid if it is reasonably related to the protection of
public health, safety, or general welfare. See, e.g., Leigh v. Board of Registration in
Nursing, 395 Mass. 670, 682-683, 481 N.E.2d 1347 (1985) (applying
rational basis review to question of State exercise of police power). n1 The rational basis standard
applied under the Massachusetts Constitution and the Fourteenth Amendment to
the United States Constitution is the same. See Chebacco Liquor Mart, Inc. v. Alcoholic
Beverages Control Comm'n, 429 Mass. 721, 722-723, 711 N.E.2d 135 (1999). The Massachusetts marriage statute does not impair the
exercise of a recognized fundamental right, or discriminate on the basis of
sex in violation of the equal rights amendment to the Massachusetts
Constitution. Consequently, it is subject to review only to determine whether
it satisfies the rational basis test. Because a conceivable rational basis
exists upon which the Legislature could conclude that the marriage statute
furthers the legitimate State purpose of ensuring, promoting, and supporting
an optimal social structure for the bearing and raising of children, it is a
valid exercise of the State's police power. A. Limiting marriage to the union of one man and one
woman does not impair the exercise of a fundamental right. Civil marriage is
an institution created by the State. In Massachusetts, the marriage statutes
are derived from English common law, see
Commonwealth v. Knowlton, 2 Mass. 530, 534 (1807), and were
first enacted in colonial times. Commonwealth
v. Munson, 127 Mass. 459, 460 (1879). They were enacted to secure public
interests and not for religious purposes or to promote personal interests or
aspirations. (See discussion infra at - ). As the court notes in its opinion,
the institution of marriage is "the legal union of a man and woman as
husband and wife," ante at, and it has always been so under
Massachusetts law, colonial or otherwise. The plaintiffs contend that because the right to choose
to marry is a "fundamental" right, the right to marry the person of
one's choice, including a member of the same sex, must also be a
"fundamental" right. While the court stops short of deciding that
the right to marry someone of the same sex is "fundamental" such
that strict scrutiny must be applied to any statute that impairs it, it
nevertheless agrees with the plaintiffs that the right to choose to marry is
of fundamental importance ("among the most basic" of every person's
"liberty and due process rights") and would be "hollow"
if an individual was foreclosed from "freely choosing the person with
whom to share . . . the . . . institution of civil marriage." Ante at .
Hence, it concludes that a marriage license cannot be denied to an individual
who wishes to marry someone of the same sex. In reaching this result the
court has transmuted the "right" to marry into a right to change
the institution of marriage itself. This feat of reasoning succeeds only if
one accepts the proposition that the definition of the institution of
marriage as a union between a man and a woman is merely
"conclusory" (as suggested, ante at [Greaney, J., concurring]),
rather than the basis on which the
"right" to partake in it has been deemed to be of
fundamental importance. In other words, only by assuming that
"marriage" includes the union of two persons of the same sex does
the court conclude that restricting marriage to opposite-sex couples
infringes on the "right" of same-sex couples to "marry."
n2 n2 The same semantic sleight of
hand could transform every other restriction on marriage into an infringement
of a right of fundamental importance. For example, if one assumes that a
group of mature, consenting, committed adults can form a
"marriage," the prohibition on polygamy (G. L. c. 207, § 4), infringes on their "right" to
"marry." In legal analysis as in mathematics, it is fundamentally
erroneous to assume the truth of the very thing that is to be proved. The plaintiffs ground their contention that they have a
fundamental right to marry a person of the same sex in a long line of Supreme
Court decisions, e.g., Turner v.
Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Zablocki v. Redhail, 434 U.S. 374, 54 L.
Ed. 2d 618, 98 S. Ct. 673 (1978); Loving
v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Griswold v. Connecticut, 381 U.S. 479,
14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965);
Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110
(1942); that discuss the importance of marriage. In context, all of these
decisions and their discussions are about the "fundamental" nature
of the institution of marriage as it has existed and been understood in this
country, not as the court has redefined it today. Even in that context, its
"fundamental" nature is derivative of the nature of the interests
that underlie or are associated with it. n3 An examination of those interests reveals that
they are either not shared by same-sex couples or not implicated by the
marriage statutes. n3 Casting the right to civil
marriage as a "fundamental right" in the constitutional sense is
somewhat peculiar. It is not referred to as such in either the State or
Federal Constitution, and unlike other recognized fundamental rights (such as
the right to procreate, the right to be free of government restraint, or the
right to refuse medical treatment), civil marriage is wholly a creature of
State statute. If by enacting a civil marriage statutory scheme Massachusetts
has created a fundamental right, then it could never repeal its own statute
without violating the fundamental rights of its inhabitants. Supreme Court cases that have described marriage or the
right to marry as "fundamental" have focused primarily on the
underlying interest of every individual in procreation, which, historically,
could only legally occur within the construct of marriage because sexual
intercourse outside of marriage was a criminal act. n4 In Skinner v. Oklahoma, supra, the
first case to characterize marriage as a "fundamental" right, the
Supreme Court stated, as its rationale for striking down a sterilization
statute, that "marriage and procreation are fundamental to the very
existence of the race." Id. at
541. In concluding that a sterilized individual "is forever deprived
of a basic liberty," id., the Court was obviously referring to
procreation rather than marriage, as this court recognized in Matter of Moe, 385 Mass. 555, 560, 432
N.E.2d 712 (1982). Similarly, in Loving
v. Virginia, supra, in which the United States Supreme Court struck down
Virginia's antimiscegenation statute, the Court implicitly linked marriage
with procreation in describing marriage as "fundamental to our very
existence." Id. at 12.
In Zablocki v. Redhail, supra,
the Court expressly linked the right to marry with the right to procreate,
concluding that "if [the plaintiff's] right to procreate means anything
at all, it must imply some right to enter the only relationship in which the
State . . . allows sexual relations legally to take place." Id. at 386. Once again, in Turner v. Safley, supra, striking a
State regulation that curtailed the right of an inmate to marry, the Court
included among the important attributes of such marriages the
"expectation that [the marriage] ultimately will be fully
consummated." 482 U.S. at 96.
See Milford v. Worcester, 7 Mass.
48, 52 (1810) (purpose of marriage is "to regulate, chasten, and
refine, the intercourse between the sexes; and to multiply [and] preserve . .
. the species"). Because same-sex couples are unable to procreate on
their own, any right to marriage they may possess cannot be based on their
interest in procreation, which has been essential to the Supreme Court's
denomination of the right to marry as fundamental. n4 For example, see G. L. c. 272,
§ § 14 and 18, the Massachusetts
adultery and fornication statutes. Supreme Court cases recognizing a right to privacy in
intimate decision-making, e.g., Griswold
v. Connecticut, supra (striking down statute prohibiting use of
contraceptives); Roe v. Wade, 410
U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (striking down statute
criminalizing abortion), have also focused primarily on sexual relations and
the decision whether or not to procreate, and have refused to recognize an
"unlimited right" to privacy.
Id. at 154. Massachusetts courts have been no more willing than
the Federal courts to adopt a "universal[]" "privacy
doctrine," Marcoux v. Attorney
Gen., 375 Mass. 63, 67, 375 N.E.2d 688 (1978), or to derive
"controversial 'new' rights from the Constitution." Aime v. Commonwealth, 414 Mass. 667, 674
n.10, 611 N.E.2d 204 (1993). What the Griswold Court found "repulsive to the
notions of privacy surrounding the marriage relationship" was the
prospect of "allowing the police to search the sacred precincts of
marital bedrooms for telltale signs of the use of contraceptives." Griswold v. Connecticut, supra at
485-486. See Moe v. Secretary
of Admin. & Fin., 382 Mass. 629, 658, 417 N.E.2d 387 (1981), quoting
L. Tribe, American Constitutional Law 924 (1978) (finding it "difficult
to imagine a clearer case of bodily intrusion" than being forced to bear
a child). When Justice Goldberg spoke of "marital relations" in the
context of finding it "difficult to imagine what is more private or more
intimate than a husband and wife's marital relationship," Griswold v. Connecticut, supra at 495
(Goldberg, J., concurring), he was obviously referring to sexual relations.
n5 Similarly, in Lawrence v. Texas,
539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), it was the
criminalization of private sexual behavior that the Court found violative of
the petitioners' liberty interest. n5 While the facts of Griswold v. Connecticut, 381 U.S. 479,
14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), involved a married couple, later
decisions clarify that its holding was not premised on the marriage
relationship. See Carey v. Population
Servs. Int'l, 431 U.S. 678, 687, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977)
(stating that Griswold rested on the "right of the individual" to
be free from governmental interference with child-bearing decisions [emphasis
in original]); Eisenstadt v. Baird,
405 U.S. 438, 453-454, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972) (same). In Massachusetts jurisprudence, protected decisions
generally have been limited to those concerning "whether or not to beget
or bear a child," Matter of
Moe, 385 Mass. 555, 564, 432 N.E.2d 712 (1982) (see Opinion of the Justices, 423 Mass. 1201,
1234-1235, 668 N.E.2d 738 [1996] ["focus of (the Griswold and Roe
cases) and the cases following them has been the intrusion . . . into the
especially intimate aspects of a person's life implicated in procreation and
childbearing"]); how to raise a child, see Care & Protection of Robert, 408
Mass. 52, 58, 60, 556 N.E.2d 993 (1990); or whether or not to accept
medical treatment, see Brophy v.
New England Sinai Hosp., Inc., 398 Mass. 417, 430, 497 N.E.2d 626 (1986); Superintendent of Belchertown State Sch. v.
Saikewicz, 373 Mass. 728, 742, 370 N.E.2d 417 (1977), none of which is
at issue here. See also Commonwealth
v. Balthazar, 366 Mass. 298, 301, 318 N.E.2d 478 (1974) (statute
punishing unnatural and lascivious acts does not apply to sexual conduct
engaged in by adults in private, in light of "articulation of the
constitutional right of an individual to be free from government regulation
of certain sex related activities"). The marriage statute, which regulates only the act of
obtaining a marriage license, does not implicate privacy in the sense that it
has found constitutional protection under Massachusetts and Federal law.
Cf. Commonwealth v. King, 374 Mass.
5, 14, 372 N.E.2d 196 (1977) (solicitation of prostitution "while in
a place to which the public had access" implicated no
"constitutionally protected rights of privacy"); Marcoux v. Attorney Gen., supra at 68
(right to privacy, at most, protects conduct "limited more or less to the
hearth"). It does not intrude on any right that the plaintiffs have to
privacy in their choices regarding procreation, an intimate partner or sexual
relations. n6 The plaintiffs' right to privacy in such matters does not
require that the State officially endorse their choices in order for the
right to be constitutionally vindicated. n6 Contrast Lawrence v. Texas, 539 U.S. 558, 156 L.
Ed. 2d 508, 123 S. Ct. 2472 (2003), in which the United States Supreme
Court struck down the Texas criminal sodomy statute because it constituted
State intrusion on some of these very choices. Although some of the privacy cases also speak in terms
of personal autonomy, no court has ever recognized such an open- ended right.
"That many of the rights and liberties protected by the Due Process
Clause sound in personal autonomy does not warrant the sweeping conclusion
that any and all important, intimate, and personal decisions are so protected
. . . ." Washington v.
Glucksberg, 521 U.S. 702, 727, 138 L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct.
2302 (1997). Such decisions are protected not because they are important,
intimate, and personal, but because the right or liberty at stake is "so
deeply rooted in our history and traditions, or so fundamental to our concept
of constitutionally ordered liberty" that it is protected by due
process. Id. Accordingly, the Supreme
Court has concluded that while the decision to refuse unwanted medical treatment
is fundamental, Cruzan v. Director,
Mo. Dep't of Health, 497 U.S. 261, 278, 111 L. Ed. 2d 224, 110 S. Ct. 2841
(1990), because it is deeply rooted in our nation's history and
tradition, the equally personal and profound decision to commit suicide is
not because of the absence of such roots.
Washington v. Glucksberg, supra. While the institution of
marriage is deeply rooted in the history and traditions of our country and
our State, the right to marry someone of the same sex is not. No matter how
personal or intimate a decision to marry someone of the same sex might be,
the right to make it is not guaranteed by the right of personal autonomy. The protected right to freedom of association, in the
sense of freedom of choice "to enter into and maintain certain intimate
human relationships," Roberts
v. United States Jaycees, 468 U.S. 609, 617, 82 L. Ed. 2d 462, 104 S. Ct.
3244 (1984) (as an element of liberty or due process rather than free
speech), is similarly limited and unimpaired by the marriage statute. As
recognized by the Supreme Court, that right affords protection only to
"certain kinds of highly personal relationships," id. at 618, such as those between
husband and wife, parent and child, and among close relatives, id. at 619, that "have played a
critical role in the culture and traditions of the Nation," id. at 618-619, and are "deeply
rooted in this Nation's history and tradition." Moore v. East Cleveland, 431 U.S. 494,
498-499, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (distinguishing on
this basis between family and nonfamily relationships). Unlike opposite-sex
marriages, which have deep historic roots, or the parent-child relationship,
which reflects a "strong tradition" founded on "the history
and culture of Western civilization" and "is now established beyond
debate as an enduring American tradition," Wisconsin v. Yoder, 406 U.S. 205, 232,
32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); or extended family relationships,
which have been "honored throughout our history," Moore v. East Cleveland, supra at 505,
same-sex relationships, although becoming more accepted, are certainly not so
"deeply rooted in this Nation's history and tradition" as to
warrant such enhanced constitutional protection. Although "expressions of emotional support and
public commitment" have been recognized as among the attributes of
marriage, which, "[t]aken together . . . form a constitutionally
protected marital relationship" (emphasis added), Turner v. Safley, 482 U.S. 78, 95, 96,
96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), those interests, standing alone,
are not the source of a fundamental right to marry. While damage to one's
"status in the community" may be sufficient harm to confer standing
to sue, Lowell v. Kowalski, 380
Mass. 663, 667, 405 N.E.2d 135 (1980), such status has never been
recognized as a fundamental right. See
Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155
(1976) (mere damage to reputation does not constitute deprivation of
"liberty"). Finally, the constitutionally protected interest in
child rearing, recognized in Meyer
v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S.
510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); and Care & Protection of Robert, supra at
58, 60, is not implicated or infringed by the marriage statute here. The fact
that the plaintiffs cannot marry has no bearing on their independently
protected constitutional rights as parents which, as with opposite-sex
parents, are limited only by their continued fitness and the best interests
of their children. Bezio v.
Patenaude, 381 Mass. 563, 579, 410 N.E.2d 1207 (1980) (courts may not use
parent's sexual orientation as reason to deny child custody). Because the rights and interests discussed above do not
afford the plaintiffs any fundamental right that would be impaired by a
statute limiting marriage to members of the opposite sex, they have no
fundamental right to be declared "married" by the State. Insofar as the right to marry someone of the same sex is
neither found in the unique historical context of our Constitution n7 nor
compelled by the meaning ascribed by this court to the liberty and due
process protections contained within it, should the court nevertheless
recognize it as a fundamental right? The consequences of deeming a right to
be "fundamental" are profound, and this court, as well as the
Supreme Court, has been very cautious in recognizing them. n8 Such caution is
required by separation of powers principles. If a right is found to be
"fundamental," it is, to a great extent, removed from "the
arena of public debate and legislative action"; utmost care must be
taken when breaking new ground in this field "lest the liberty protected
by the Due Process Clause be subtly transformed into the policy preferences
of [judges]." Washington v.
Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct.
2302 (1997). n7 The statutes from which our
current marriage laws derive were enacted prior to or shortly after the
adoption of our Constitution in 1780, and "may well be considered . . .
as affording some light in regard to the views and intentions of [the
Constitution's] founders."
Merriam v. Secretary of the Commonwealth, 375 Mass. 246, 253, 376
N.E.2d 838 (1978).n8 Tobin's
Case, 424 Mass. 250, 252-253, 675 N.E.2d 781 (1997) (no fundamental right
to receive workers' compensation benefits);
Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129,
653 N.E.2d 1088 (1995) (no fundamental right to education); Williams v. Secretary of the Executive
Office of Human Servs., 414 Mass. 551, 565, 609 N.E.2d 447 (1993) (no
fundamental right to receive mental health services); Matter of Tocci, 413 Mass. 542, 548 n.4,
600 N.E.2d 577 (1992) (no fundamental right to practice law); Rushworth v. Registrar of Motor
Vehicles, 413 Mass. 265, 269 n.5, 596 N.E.2d 340 (1992) (no fundamental
right to operate motor vehicle); English
v. New England Med. Ctr., Inc., 405 Mass. 423, 429, 541 N.E.2d 329 (1989),
cert. denied, 493 U.S. 1056, 107 L.
Ed. 2d 949, 110 S. Ct. 866 (1990) (no fundamental right to recover tort
damages); Commonwealth v. Henry's
Drywall Co., 366 Mass. 539, 542, 320 N.E.2d 911 (1974) (no fundamental
right to pursue one's business). Cf. Aime
v. Commonwealth, 414 Mass. 667, 674 n.10, 611 N.E.2d 204 (1993) (recognizing
right to be free from physical restraint "does not involve judicial
derivation of controversial 'new' rights from the Constitution"). See
generally Williams v. Secretary of
the Executive Office of Human Servs., supra at 566 (recognizing
fundamental right to receive mental health services "would represent an
enormous and unwarranted extension of the judiciary into the [Department of
Mental Health]'s authority"); Ford
v. Grafton, 44 Mass. App. Ct. 715, 730-731, 693 N.E.2d 1047, cert.
denied, 525 U.S. 1040, 142 L. Ed.
2d 534, 119 S. Ct. 591 (1998), quoting
DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189,
203, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989) ("people of
Massachusetts may choose by legislation to [provide remedies for "grievous
harm"] . . . however, 'they should not have [such remedies] thrust upon
them by this Court's expansion of the Due Process Clause . . ."). "To rein in" the otherwise potentially
unlimited scope of substantive due process rights, id. at 722, both Federal and Massachusetts
courts have recognized as "fundamental" only those "rights and
liberties which are, objectively, 'deeply rooted in this Nation's history and
tradition,' [ Moore v. East Cleveland, supra at 503] . . . and
'implicit in the concept of ordered liberty.'" Id. at 720-721, quoting Palko v. Connecticut, 302 U.S. 319, 325,
82 L. Ed. 288, 58 S. Ct. 149 (1937). See
Dutil, petitioner, 437 Mass. 9, 13, 768 N.E.2d 1055 (2002)
(same). In the area of family-related rights in particular, the Supreme Court
has emphasized that the "Constitution protects the sanctity of the
family precisely because the institution of the family is deeply
rooted." Moore v. East
Cleveland, supra. n9 n9 See
Michael H. v. Gerald D., 491 U.S. 110, 122-123, 127, 105 L. Ed. 2d
91, 109 S. Ct. 2333 & n.3 (1989) (plurality opinion) (limits on
substantive due process rights center on "respect for the teachings of
history"); Griswold v.
Connecticut, 381 U.S. 479, 501, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)
(Harlan, J., concurring) (same). Applying this limiting principle, the Supreme Court, as
noted above, declined to recognize a fundamental right to physician-assisted
suicide, which would have required "reversing centuries of legal
doctrine and practice, and striking down the considered policy choice of
almost every State." Washington
v. Glucksberg, supra at 723. While recognizing that public attitudes
toward assisted suicide are currently the subject of "earnest and
profound debate," the Court nevertheless left the continuation and
resolution of that debate to the political arena, "as it should be in a
democratic society." Id. at
719, 735. Similarly, Massachusetts courts have declined to
recognize rights that are not so deeply rooted. n10 As this court noted in
considering whether to recognize a right of terminally ill patients to refuse
life-prolonging treatment, "the law always lags behind the most advanced
thinking in every area," and must await "some common ground, some
consensus." Superintendent of
Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 737, 370 N.E.2d 417
(1977), quoting Burger, The Law and Medical Advances, 67 Annals Internal
Med. Supp. 7, 15, 17 (1967). See Blixt
v. Blixt, 437 Mass. 649, 662-663 n.22, 774 N.E.2d 1052 (2002)
("social consensus about family relationships is relevant to the
constitutional limits on State intervention"). n10 Compare Curtis v. School Comm. of Falmouth, 420
Mass. 749, 756, 652 N.E.2d 580 (1995), cert. denied, 516 U.S. 1067, 133 L. Ed. 2d 700, 116 S.
Ct. 753 (1996), quoting Wisconsin
v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)
("primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition"); Aime v. Commonwealth, supra at 676
("right to be free from governmental detention and restraint is firmly
embedded in the history of Anglo-American law"); Brophy v. New England Sinai Hosp., Inc.,
398 Mass. 417, 430, 497 N.E.2d 626 (1986) (right to make decisions to
accept or reject medical treatment "has its roots deep in our
history" and "has come to be widely recognized and
respected"); and Moe v.
Secretary of Admin. & Fin., 382 Mass. 629, 649, 417 N.E.2d 387 (1981)
(characterizing decision whether to bear a child as "holding a
particularly important place in the history of the right of privacy" and
finding "something approaching consensus" on right to refuse
unwanted infringement of bodily integrity), with Trigones v. Attorney Gen., 420 Mass.
859, 863, 652 N.E.2d 893 (1995), quoting
Medina v. California, 505 U.S. 437, 445, 120 L. Ed. 2d 353, 112 S.
Ct. 2572 (1992) (upholding statute that does not "offend some
principle of justice so rooted in the tradition and conscience of our people
as to be ranked fundamental"); Three
Juveniles v. Commonwealth, 390 Mass. 357, 364, 455 N.E.2d 1203 (1983),
cert. denied sub nom. Keefe v.
Massachusetts, 465 U.S. 1068, 79 L. Ed. 2d 746, 104 S. Ct. 1421 (1984)
(declining to find fundamental right to child-parent privilege where
"neither Congress nor the Legislature of any State has seen fit to adopt
a rule granting [such] a privilege . . ."); Commonwealth v. Stowell, 389 Mass. 171,
174, 449 N.E.2d 357 (1983), quoting
Roe v. Wade, 410 U.S. 113, 152, 35 L. Ed. 2d 147, 93 S. Ct. 705
(1973) (declining to recognize right not "implicit in the concept of
ordered liberty"). This is not to say that a statute that has no rational
basis must nevertheless be upheld as long as it is of ancient origin.
However, "the long history of a certain practice . . . and its acceptance
as an uncontroversial part of our national and State tradition do suggest
that [the court] should reflect carefully before striking it down." Colo v. Treasurer & Receiver Gen.,
378 Mass. 550, 557, 392 N.E.2d 1195 (1979). As this court has recognized,
the "fact that a challenged practice 'is followed by a large number of
states . . . is plainly worth considering in determining whether the practice
"offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."'" Commonwealth v. Kostka, 370 Mass. 516,
533, 350 N.E.2d 444 (1976), quoting
Leland v. Oregon, 343 U.S. 790, 798, 96 L. Ed. 1302, 72 S. Ct. 1002
(1952). Although public attitudes toward marriage in general and
same-sex marriage in particular have changed and are still evolving,
"the asserted contemporary concept of marriage and societal interests
for which [plaintiffs] contend" are "manifestly [less] deeply
founded" than the "historic institution" of marriage. Matter of the Estate of Cooper, 187
A.D.2d 128, 133-134, 592 N.Y.S.2d 797 (N.Y. 1993). Indeed, it is not
readily apparent to what extent contemporary values have embraced the concept
of same-sex marriage. Perhaps the "clearest and most reliable objective
evidence of contemporary values is the legislation enacted by the country's
legislatures," Atkins v.
Virginia, 536 U.S. 304, 312, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002),
quoting Penry v. Lynaugh, 492 U.S.
302, 331, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). No State Legislature
has enacted laws permitting same-sex marriages; and a large majority of
States, as well as the United States Congress, have affirmatively prohibited
the recognition of such marriages for any purpose. See P. Greenberg, State
Laws Affecting Lesbians and Gays, National Conference of State Legislatures
Legisbriefs at 1 (April/May 2001) (reporting that, as of May, 2001,
thirty-six States had enacted "defense of marriage" statutes); 1
U.S.C. § 7 (2000); 28 U.S.C.
§ 1738C (2000) (Federal Defense of
Marriage Act). Given this history and the current state of public
opinion, as reflected in the actions of the people's elected representatives,
it cannot be said that "a right to same-sex marriage is so rooted in the
traditions and collective conscience of our people that failure to recognize
it would violate the fundamental principles of liberty and justice that lie
at the base of all our civil and political institutions. Neither . . . [is] a
right to same-sex marriage . . . implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if it were
sacrificed." Baehr v. Lewin,
74 Haw. 530, 556-557, 852 P.2d 44 (1993). See Dean v. District of Columbia, 653 A.2d
307, 333 (D.C. 1995) (per curiam) (Ferren, J., concurring in part and
dissenting in part); Baker v.
Nelson, 291 Minn. 310, 312, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 34 L. Ed. 2d 65, 93 S. Ct.
37 (1972); Storrs v. Holcomb,
168 Misc. 2d 898, 899-900, 645 N.Y.S.2d 286 (N.Y. Sup. Ct. 1996),
dismissed, 245 A.D.2d 943, 666
N.Y.S.2d 835 (N.Y. 1997). n11 In such circumstances, the law with respect
to same-sex marriages must be left to develop through legislative processes,
subject to the constraints of rationality, lest the court be viewed as using
the liberty and due process clauses as vehicles merely to enforce its own
views regarding better social policies, a role that the strongly worded
separation of powers principles in art. 30 of the Declaration of Rights of
our Constitution forbids, and for which the court is particularly ill suited. n11 Because of the absence of
deep historical roots, every court but one that has considered recognizing a
fundamental right to same-sex marriage, has declined to do so. See,
e.g., Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003);
Dean v. District of Columbia, 653 A.2d 307, 333 (D.C. 1995)
(per curiam) (Ferren, J., concurring in part and dissenting in part); Baehr v. Lewin, 74 Haw. 530, 556-557,
852 P.2d 44 (1993); Baker v. Nelson,
291 Minn. 310, 312-314, 191 N.W.2d 185 (1971); Storrs v. Holcomb, 168 Misc. 2d 898,
899-900, 645 N.Y.S.2d 286 (N.Y. Sup. Ct. 1996), dismissed, 245 A.D.2d 943, 666 N.Y.S.2d 835 (N.Y.
1997). The one exception was the Alaska Superior Court, which relied on
that State's Constitution's express and broadly construed right to privacy.
Brause vs. Bureau of Vital Statistics, No. 3AN-95-6562CJ (Alaska Super. Ct.
Feb. 27, 1998). B. The marriage statute, in limiting marriage to
heterosexual couples, does not constitute discrimination on the basis of sex
in violation of the Equal Rights Amendment to the Massachusetts Constitution.
In his concurrence, Justice Greaney contends that the marriage statute
constitutes discrimination on the basis of sex in violation of art. 1 of the
Declaration of Rights as amended by art. 106 of the Amendments to the
Constitution of the Commonwealth, the Equal Rights Amendment (ERA). n12 Such
a conclusion is analytically unsound and inconsistent with the legislative
history of the ERA. n12 Article 106 is referred to as
the Equal Rights Amendment. The central purpose of the ERA was to eradicate
discrimination against women and in favor of men or vice versa. See Attorney
Gen. v. Massachusetts Interscholastic Athletic Ass'n, 378 Mass. 342, 357,
393 N.E.2d 284 (1979). Consistent with this purpose, we have construed
the ERA to prohibit laws that advantage one sex at the expense of the other,
but not laws that treat men and women equally, id. at 346-349 (assuming that
"separate but equal" treatment of males and females would be
constitutionally permissible). The Massachusetts marriage statute does not
subject men to different treatment from women; each is equally prohibited
from precisely the same conduct. See Baker
v. State, 170 Vt. 194, 215 n.13, 744 A.2d 864 (1999) ("there is no
discrete class subject to differential treatment solely on the basis of
sex"). Compare Commonwealth v.
King, 374 Mass. 5, 16, 372 N.E.2d 196 (1977) (law prohibiting
prostitution applied to both male and female prostitutes and therefore did
not discriminate), and Personnel Adm'r
of Mass. v. Feeney, 442 U.S. 256, 274-275, 60 L. Ed. 2d 870, 99 S. Ct.
2282 (1979) (declining to characterize veterans' preference as sex
discrimination because it applied to both male and female veterans),
with Attorney Gen. v. Massachusetts
Interscholastic Athletic Ass'n, supra, and
Lowell v. Kowalski, 380 Mass. 663, 405 N.E.2d 135 (1980) (where
statutes and rules at issue advantaged one sex over another). Of course, a statute that on its face treats protected
groups equally may still harm, stigmatize, or advantage one over the other.
Such was the circumstance in Loving
v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967), where
the Supreme Court struck down a State statute that made interracial marriage
a crime, as constituting invidious discrimination on the basis of race. While
the statute purported to apply equally to whites and nonwhites, the Court
found that it was intended and structured to favor one race (white) and
disfavor all others (nonwhites). The statute's legislative history
demonstrated that its purpose was not merely to punish interracial marriage,
but to do so for the sole benefit of the white race. As the Supreme Court
readily concluded, the Virginia law was "designed to maintain White
Supremacy." Id. at 11.
Consequently, there was a fit between the class that the law was intended to
discriminate against (nonwhite races) and the classification enjoying
heightened protection (race). By contrast, here there is no evidence that limiting
marriage to opposite-sex couples was motivated by sexism in general or a
desire to disadvantage men or women in particular. Moreover, no one has
identified any harm, burden, disadvantage, or
advantage accruing to either gender as a consequence of the
Massachusetts marriage statute. In the absence of such effect, the statute
limiting marriage to couples of the opposite sex does not violate the ERA's
prohibition of sex discrimination. n13 n13 Justice Greaney views Loving v. Virginia, 388 U.S. 1, 18 L.
Ed. 2d 1010, 87 S. Ct. 1817 (1967), as standing analogously for the
proposition that just as a person cannot be barred from marrying another
person because of his or her race, a person cannot be barred from marrying
another person because of his or her sex. Ante at (Greaney, J., concurring).
While superficially attractive, this analogy does not withstand closer
scrutiny. Unlike Virginia's antimiscegenation statute, neither the purpose
nor effect of the Massachusetts marriage statute is to advantage or
disadvantage one gender over the other. This distinction is critical and was
central to the Loving decision. More fundamentally, the statute at issue
burdened marriage with a requirement that was both constitutionally suspect and
unrelated to protecting either the underlying purposes or nature of the
institution. In contrast, the limitation of marriage to one man and one woman
preserves both its structure and its historic purposes. This conclusion is buttressed by the legislative history
of the ERA, which was adopted by the voters on November 2, 1976, after being
approved by constitutional conventions of the Legislature on August 15, 1973,
(by a vote of 261-0) and May 14, 1975 (by a vote of 217-55). In anticipation of its adoption, the Legislature enacted
and, on June 21, 1975, the Governor approved a "Resolve providing for an
investigation and study by a special commission relative to the effect of the
ratification of the proposed amendments to the Constitution of the Commonwealth
of Massachusetts and the Constitution of the United States prohibiting
discrimination on account of sex upon the laws, business communities and
public in the Commonwealth." Res. 1975, c. 26. One of the principal
tasks of the commission was to catalog the aspects of the General Laws that
would have to be amended for the statutory code to comply with the mandate of
the proposed amendment that equality not be abridged on the basis of sex. n14 n14 The commission was composed of
five State representatives, three State senators and three gubernatorial
appointees. All of the gubernatorial appointees were attorneys. On October 19, 1976, just before the general election at
which the amendment was to be considered, the commission filed its Interim
Report, which focused on the effect of the Massachusetts ERA on the laws of
the Commonwealth. 1976 Senate Doc. No. 1689. A section of the report,
entitled "Areas Unaffected by the Equal Rights Amendment,"
addressed some of the legal regimes that would not be affected by the
adoption of the ERA. One such area was "Homosexual Marriage," about
which the commission stated: "An equal rights amendment will have no effect upon
the allowance or denial of homosexual marriages. The equal rights amendment
is not concerned with the relationship of two persons of the same sex; it
only addresses those laws or public-related actions which treat persons of
opposite sexes differently. The Washington Court of Appeals has already
stated that the equal rights amendment to its state constitution did not
afford a basis for validating homosexual marriages. In Colorado, the attorney
general has likewise issued an opinion that the state equal rights amendment
did not validate homosexual marriage. There are no cases which have used a
state equal rights amendment to either validate or require the allowance of
homosexual marriages." (Footnotes omitted.) Id. at 21-22. n15 n15 The Washington case cited by
the commission was Singer v. Hara,
11 Wn. App. 247, 522 P.2d 1187 (1974). The views of the commission were reflected in the public
debate surrounding the passage of the ERA that focused on gender equality.
See, e.g., Referenda reviewed, Boston Globe, Nov. 1, 1976, at 26; Voters'
guide on nine state referendum measures, Boston Herald American, Nov. 1,
1976, at 17. Claims that the ERA might be the basis for validating marriages
between same-sex couples were labelled as "exaggerated" and
"unfounded." For example, before the vote, the Boston Globe published
an editorial discussing and urging favorable action on the ERA. In making its
case, it noted that "those urging a no vote . . . argue that the
amendment would . . . legitimize marriage between people of the same sex [and
other changes]. In reality, the proposed amendment would require none of
these things. Mass. ballot issues . . . 1 Equal Rights Amendment. Boston
Globe, Nov. 1, 1976, at 29. And in the aftermath of the vote, the Boston
Globe heralded the electorate's acceptance of "the arguments of
proponents that the proposal would not result in many far-reaching or
threatening changes." Referendums fared poorly, Boston Globe, Nov. 4,
1976, at 29. While the court, in interpreting a constitutional
amendment, is not bound to accept either the views of a legislative commission
studying and reporting on the amendment's likely effects, or of public
commentary and debate contemporaneous with its passage, it ought to be wary
of completely disregarding what appears to be the clear intent of the people
recently recorded in our constitutional history. This is particularly so
where the plain wording of the amendment does not require the result it would
reach. C. The marriage statute satisfies the rational basis
standard. The burden of demonstrating that a statute does not satisfy the
rational basis standard rests on the plaintiffs. It is a weighty one.
"[A] reviewing court will presume
a statute's validity, and make all rational inferences in favor of it. . . .
The Legislature is not required to justify its classifications, nor provide a
record or finding in support of them." (Citation omitted.) Paro v. Longwood Hosp., 373 Mass. 645,
650, 369 N.E.2d 985 (1977). The statute "only need[s to] be
supported by a conceivable rational basis." Fine v. Contributory Retirement Appeal
Bd., 401 Mass. 639, 641, 518 N.E.2d 1151 (1988). See Massachusetts Fed'n of Teachers v. Board
of Educ., 436 Mass. 763, 771-772, 767 N.E.2d 549 (2002). As this court
stated in Shell Oil Co. v. Revere,
383 Mass. 682, 687-688, 421 N.E.2d 1181 (1981): "It is not the court's function to launch an
inquiry to resolve a debate which has already been settled in the legislative
forum. 'It [is] the judge's duty . . . to give effect to the will of the
people as expressed in the statute by their representative body. It is in
this way . . . that the doctrine of separation of powers is given
meaning.' Commonwealth v. Leis, 355
Mass. 189, 202, 243 N.E.2d 898 (1969) (Kirk, J., concurring). "This respect for the legislative process means
that it is not the province of the court to sit and weigh conflicting
evidence supporting or opposing a legislative enactment. . . . "Although persons challenging the constitutionality
of legislation may introduce evidence in support of their claim that the
legislation is irrational . . . they will not prevail if 'the question is at
least debatable' in view of the evidence which may have been available to the
Legislature. United States v.
Carolene Prods. Co., 304 U.S. 144, 154, 82 L. Ed. 1234, 58 S. Ct. 778 (1938)." The "time
tested wisdom of the separation of powers" requires courts to avoid
"judicial legislation in the guise of new constructions to meet real or
supposed new popular viewpoints, preserving always to the Legislature alone
its proper prerogative of adjusting the statutes to changed
conditions." Pielech v.
Massasoit Greyhound, Inc., 423 Mass. 534, 539, 540, 668 N.E.2d 1298 (1996),
cert. denied, 520 U.S. 1131, 137 L.
Ed. 2d 356, 117 S. Ct. 1280 (1997), quoting Commonwealth v. A Juvenile, 368 Mass.
580, 595, 334 N.E.2d 617 (1975). In analyzing whether a statute satisfies the rational
basis standard, we look to the nature of the classification embodied in the
enactment, then to whether the statute serves a legitimate State purpose, and
finally to whether the classification is reasonably related to the
furtherance of that purpose. With this framework, we turn to the challenged
statute, G. L. c. 207, which authorizes local town officials to issue
licenses to couples of the opposite sex authorizing them to enter the institution
of civil marriage. 1. Classification. The nature of the classification at
issue is readily apparent. Opposite-sex couples can obtain a license and
same-sex couples cannot. The granting of this license, and the completion of
the required solemnization of the marriage, opens the door to many statutory
benefits and imposes numerous responsibilities. The fact that the statute
does not permit such licenses to be issued to couples of the same sex thus
bars them from civil marriage. The classification is not drawn between men
and women or between heterosexuals and homosexuals, any of whom can obtain a
license to marry a member of the opposite sex; rather, it is drawn between
same-sex couples and opposite-sex couples. 2. State purpose. The court's opinion concedes that the
civil marriage statute serves legitimate State purposes, but further
investigation and elaboration of those purposes is both helpful and
necessary. Civil marriage is the institutional mechanism by which
societies have sanctioned and recognized particular family structures, and
the institution of marriage has existed as one of the fundamental organizing
principles of human society. See C.N. Degler, The Emergence of the Modern
American Family, in The American Family in Social-Historical Perspective 61
(3d ed. 1983); A.J. Hawkins, Introduction, in Revitalizing the Institution of
Marriage for the Twenty-First Century: An Agenda for Strengthening Marriage
xiv (2002); C. Lasch, Social Pathologists and the Socialization of
Reproduction, in The American Family in Social-Historical Perspective, supra
at 80; W.J. O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1
(1982); L. Saxton, The Individual, Marriage, and the Family 229-230, 260
(1968); M.A. Schwartz & B.M. Scott, Marriages and Families: Diversity and
Change 4 (1994); Wardle, "Multiply and Replenish": Considering Same-Sex Marriage in Light of
State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y
771, 777-780 (2001); J.Q. Wilson, The Marriage Problem: How Our Culture
Has Weakened Families 28, 40, 66-67 (2002). Marriage has not been merely a
contractual arrangement for legally defining the private relationship between
two individuals (although that is certainly part of any marriage). Rather, on
an institutional level, marriage is the "very basis of the whole fabric
of civilized society," J.P. Bishop, Commentaries on the Law of Marriage
and Divorce, and Evidence in Matrimonial Suits § 32 (1852), and it serves many important
political, economic, social, educational, procreational, and personal
functions. Paramount among its many important functions, the
institution of marriage has systematically provided for the regulation of
heterosexual behavior, brought order to the resulting procreation, and
ensured a stable family structure in which children will be reared, educated,
and socialized. See Milford v.
Worcester, 7 Mass. 48, 52 (1810) (civil marriage "intended to
regulate, chasten, and refine, the intercourse between the sexes; and to multiply,
preserve, and improve the species"). See also P. Blumstein & P.
Schwartz, American Couples: Money, Work, Sex 29 (1983); C.N. Degler, supra at
61; G. Douglas, Marriage, Cohabitation, and Parenthood -- From Contract to
Status?, in Cross Currents: Family Law and Policy in the United States and
England 223 (2000); S.L. Nock, The Social Costs of De-Institutionalizing
Marriage, in Revitalizing the Institution of Marriage for the Twenty-First
Century: An Agenda for Strengthening Marriage, supra at 7; L. Saxton, supra
at 239- 240, 242; M.A. Schwartz & B.M. Scott, supra at 4-6; Wardle, supra
at 781-796; J.Q. Wilson, supra at 23-32. Admittedly, heterosexual
intercourse, procreation, and child care are not necessarily conjoined
(particularly in the modern age of widespread effective contraception and
supportive social welfare programs), but an orderly society requires some
mechanism for coping with the fact that sexual intercourse commonly results
in pregnancy and childbirth. The institution of marriage is that mechanism. The institution of marriage provides the important legal
and normative link between heterosexual intercourse and procreation on the
one hand and family responsibilities on the other. The partners in a marriage
are expected to engage in exclusive sexual relations, with children the
probable result and paternity presumed. See G. L. c. 209C, § 6 ("a man is presumed to be the father
of a child . . . if he is or has been married to the mother and the child was
born during the marriage, or within three hundred days after the marriage was
terminated by death, annulment or divorce"). Whereas the relationship
between mother and child is demonstratively and predictably created and
recognizable through the biological process of pregnancy and childbirth, there
is no corresponding process for creating a relationship between father and
child. n16 Similarly, aside from an act of heterosexual intercourse nine
months prior to childbirth, there is no process for creating a relationship
between a man and a woman as the parents of a particular child. The
institution of marriage fills this void by formally binding the
husband-father to his wife and child, and imposing on him the
responsibilities of fatherhood. See J.Q. Wilson, supra at 23-32. See also P.
Blumstein & P. Schwartz, supra at 29; C.N. Degler, supra at 61; G.
Douglas, supra at 223; S.L. Nock, supra at 7; L. Saxton, supra at 239-240,
242; M.A. Schwartz & B.M. Scott, supra at 4-6; Wardle, supra at 781-796.
The alternative, a society without the institution of marriage, in which
heterosexual intercourse, procreation, and child care are largely
disconnected processes, would be chaotic. n16 Modern DNA testing may reveal
actual paternity, but it establishes only a genetic relationship between
father and child. The marital
family is also the foremost setting for the education and socialization of
children. Children learn about the world and their place in it primarily from
those who raise them, and those children eventually grow up to exert some
influence, great or small, positive or negative, on society. The institution
of marriage encourages parents to remain committed to each other and to their
children as they grow, thereby encouraging a stable venue for the education
and socialization of children. See P. Blumstein & P. Schwartz, supra at
26; C.N. Degler, supra at 61; S.L. Nock, supra at 2-3; C. Lasch, supra at 81;
M.A. Schwartz & B.M. Scott, supra at 6-7. More macroscopically,
construction of a family through marriage also formalizes the bonds between
people in an ordered and institutional manner, thereby facilitating a
foundation of interconnectedness and interdependency on which more intricate
stabilizing social structures might be built. See M. Grossberg, Governing the
Hearth: Law and Family in Nineteenth-Century America 10 (1985); C. Lasch,
supra; L. Saxton, supra at 260; J.Q. Wilson, supra at 221. This court, among others, has consistently acknowledged
both the institutional importance of marriage as an organizing principle of
society, and the State's interest in regulating it. See French v. McAnarney, 290 Mass. 544, 546,
195 N.E. 714 (1935) ("Marriage is not merely a contract between the
parties. It is the foundation of the family. It is a social institution of
the highest importance. The Commonwealth has a deep interest that its
integrity is not jeopardized"); Milford
v. Worcester, 7 Mass. 48, 52 (1810) ("Marriage, being essential to
the peace and harmony, and to the virtues and improvements of civil society,
it has been, in all well-regulated governments, among the first attentions of
the civil magistrate to regulate [it]"). See also Skinner v. Oklahoma, 316 U.S. 535, 541,
86 L. Ed. 1655, 62 S. Ct. 1110 (1942) ("Marriage and procreation are
fundamental to the very existence and survival of the [human] race"); Maynard v. Hill, 125 U.S. 190, 211, 31
L. Ed. 654, 8 S. Ct. 723 (1888) (marriage "is an institution, in the
maintenance of which in its purity the public is deeply interested, for it is
the foundation of the family and of society, without which there would be
neither civilization nor progress");
Murphy v. Ramsey, 114 U.S. 15, 45, 29 L. Ed. 47, 5 S. Ct. 747
(1885) ("no legislation can be supposed more wholesome and necessary
in the founding of a free, self-governing commonwealth . . . than that which
seeks to establish it on the basis of the idea of the family, as consisting
in and springing from the union for life of one man and one woman . . . the
sure foundation of all that is stable and noble in our civilization; the best
guaranty of that reverent morality which is the source of all beneficent
progress in social and political improvement"); Reynolds v. United States, 98 U.S. 145,
165, 25 L. Ed. 244 (1878) ("Upon [marriage] society may be said to
be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required to
deal"). It is undeniably true that dramatic historical shifts in
our cultural, political, and economic landscape have altered some of our
traditional notions about marriage, including the interpersonal dynamics
within it, n17 the range of responsibilities required of it as an
institution, n18 and the legal environment in which it exists. n19
Nevertheless, the institution of marriage remains the principal weave of our
social fabric. See C.N. Degler, supra at 61; A.J. Hawkins, Introduction, in
Revitalizing the Institution of Marriage for the Twenty-First Century: An
Agenda for Strengthening Marriage xiv (2002); C. Lasch, supra at 80; W.J.
O'Donnell & D.A. Jones, Marriage and Marital Alternatives 1 (1982); L.
Saxton, supra at 229-230, 260; M.A. Schwartz & B.M. Scott, supra at 4;
Wardle, supra at 777-780; J.Q. Wilson, supra at 28, 40, 66-67. A family
defined by heterosexual marriage continues to be the most prevalent social
structure into which the vast majority of children are born, nurtured, and
prepared for productive participation in civil society, see Children's Living
Arrangements and Characteristics:
March, 2002, United States
Census Bureau Current Population Reports at 3 (June, 2003) (in 2002, 69% of
children lived with two married parents, 23% lived with their mother, 5%
lived with their father, and 4% lived in households with neither parent
present). n17 The normative relationship
between husband and wife has changed markedly due to the overwhelming
movement toward gender equality both at home and in the marketplace.n18 The
availability of a variety of social welfare programs and public education has
in many instances affected the status of the marital family as the only
environment dedicated to the care, protection, and education of children.n19
No-fault divorce has made the dissolution of marriage much easier than ever
before. It is difficult to imagine a State purpose more
important and legitimate than ensuring, promoting, and supporting an optimal
social structure within which to bear and raise children. At the very least,
the marriage statute continues to serve this important State purpose. n20 n20 "It is important to
distinguish the individual interests in domestic relations from the social
interest in the family and marriage as social institutions." Pound,
Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 177
(1916). The court's opinion blurs this important distinction and
emphasizes the personal and emotional dimensions that often accompany
marriage. It is, however, only society's interest in the institution of
marriage as a stabilizing social structure that justifies the statutory
benefits and burdens that attend to the status provided by its laws. Personal
fulfilment and public celebrations or announcements of commitment have little
if anything to do with the purpose of the civil marriage laws, or with a
legitimate public interest that would justify them. 3. Rational relationship. The question we must turn to
next is whether the statute, construed as limiting marriage to couples of the
opposite sex, remains a rational way to further that purpose. Stated
differently, we ask whether a conceivable rational basis exists on which the
Legislature could conclude that continuing to limit the institution of civil
marriage to members of the opposite sex furthers the legitimate purpose of
ensuring, promoting, and supporting an optimal social structure for the
bearing and raising of children. n21 n21 In support of its conclusion that the
marriage statute does not satisfy the rational basis test, the court
emphasizes that "the department has offered no evidence that forbidding marriage
to people of the same sex will increase the number of couples choosing to
enter into opposite-sex marriages in order to have and raise children."
Ante at . This surprising statement misallocates the burden of proof in a
constitutional challenge to the rational basis of a statute (see supra at -
). It is the plaintiffs who must prove that supporting and promoting one form
of relationship by providing (as is pointed out) literally hundreds of
benefits, could not conceivably affect the decision-making of anyone
considering whether to bear and raise a child. The department is not required
to present "evidence" of anything. In considering whether such a rational basis exists, we
defer to the decision-making process of the Legislature, and must make deferential
assumptions about the information that it might consider and on which it may
rely. See Shell Oil Co. v. Revere,
383 Mass. 682, 688, 421 N.E.2d 1181 (1981) (court considers
"evidence which may have been available to the Legislature"
[emphasis added]); Slome v. Chief
of Police of Fitchburg, 304 Mass. 187, 189, 23 N.E.2d 133 (1939)
("any rational basis of fact that can be reasonably conceived" may
support legislative finding); Mutual
Loan Co. v. Martell, 200 Mass. 482, 487, 86 N.E. 916 (1909), aff'd, 222 U.S. 225, 56 L. Ed. 175, 32 S. Ct.
74 (1911) ("Legislature may be supposed to have known" relevant
facts). We must assume that the Legislature (1) might conclude
that the institution of civil marriage has successfully and continually
provided this structure over several centuries n22; (2) might consider and
credit studies that document negative consequences that too often follow
children either born outside of marriage or raised in households lacking
either a father or a mother figure, n23 and scholarly commentary contending
that children and families develop best when mothers and fathers are partners
in their parenting n24; and (3) would be familiar with many recent studies
that variously support the proposition that children raised in intact families
headed by same-sex couples fare as well on many measures as children raised
in similar families headed by opposite-sex couples n25; support the
proposition that children of same-sex couples fare worse on some measures
n26; or reveal notable differences between the two groups of children that
warrant further study. n27 n22 See C.N. Degler, The
Emergence of the Modern American Family, in The American Family in
Social-Historical Perspective 61 (3d ed. 1983); A.J. Hawkins, Introduction,
in Revitalizing the Institution of Marriage for the Twenty-First Century: An
Agenda for Strengthening Marriage xiv (2002); C. Lasch, Social Pathologists
and the Socialization of Reproduction, in The American Family in
Social-Historical Perspective, 80 (3d ed. 1983); W.J. O'Donnell & D.A.
Jones, The Law of Marriage and Marital Alternatives 1 (1982); L. Saxton, The
Individual, Marriage and the Family 229-230, 260 (1968); M.A. Schwartz &
B.M. Scott, Marriages and Families: Diversity and Change 4 (1994); Wardle,
"Multiply and Replenish":
Considering Same-Sex Marriage in Light of State Interests in Marital
Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 777-780 (2001); J.Q.
Wilson, The Marriage Problem: How Our Culture has Weakened Families 28, 40,
66-67 (2002). n23 See Rodney, Behavioral Differences
between African American Male Adolescents with Biological Fathers and Those
Without Biological Fathers in the Home, 30 J. Black Stud. 45, 53 (1999)
(African-American juveniles who lived with their biological fathers displayed
fewer behavioral problems than those whose biological fathers were absent
from home); Chilton, Family Disruption, Delinquent Conduct and the Effect of
Subclassification, 37 Am. Soc. Rev. 93, 95 (1972) (proportion of youth
charged with juvenile offenses who were not living in husband-wife family was
larger than comparable proportion of youth charged with juvenile offenses who
were living in husband-wife family); Hoffmann, A National Portrait of Family
Structure and Adolescent Drug Use, 60 J. Marriage & Fam. 633 (1998)
(children from households with both mother and father reported relatively low
use of drugs, whereas children from households without their natural mothers
and from other family type households had highest prevalence of drug use).
See also D. Blankenhorn, Fatherless America: Confronting Our Most Urgent
Social Problem 25 (1995). n24 H.B. Biller & J.L.
Kimpton, The Father and the School- Aged Child, in The Role of The Father in
Child Development 143 (3d ed. 1997); H.B. Biller, Fathers and Families:
Paternal Factors in Child Development 1-3 (1993); Lynne Marie Kohm, The
Homosexual "Union": Should Gay and Lesbian Partnerships be Granted
the Same Status as Marriage? 22 J.
Contemp. L. 51, 61 & nn.53, 54 (1996) ("statistics continue to
show that the most stable family for children to grow up in is that
consisting of a father and a mother"). n25 See, e.g., Patterson, Family
Relationships of Lesbians and Gay Men, 62 J. Marriage & Fam. 1052, 1060,
1064-1065 (2000) (concluding that there are no significant differences
between children of same-sex parents and children of heterosexual parents in
aspects of personal development). n26 See, e.g., Cameron,
Homosexual Parents, 31 Adolescence 757, 770-774 (1996) (concluding results of
limited study consonant with notion that children raised by homosexuals
disproportionately experience emotional disturbance and sexual
victimization). n27 See, e.g., Stacey, (How) Does
the Sexual Orientation of Parents Matter?, 66 Amer. Soc. Rev. 159, 172,
176-179 (2001) (finding significant statistical differences in parenting
practices, gender roles, sexual behavior but noting that
"heterosexism" and political implications have constrained
research). See also Coleman, Reinvestigating Remarriage: Another Decade of
Progress, 62 J. Marriage & Fam. 1288 (2000) (concluding that future
studies of impact of divorce and remarriage on children should focus on
"nontraditional" stepfamilies, particularly same-sex couples with
children, because impact of such arrangements have been overlooked in other studies). We must also assume that the Legislature would be aware
of the critiques of the methodologies used in virtually all of the
comparative studies of children raised in these different environments,
cautioning that the sampling populations are not representative, that the
observation periods are too limited in time, n28 that the empirical data are
unreliable, and that the hypotheses are too infused with political or agenda
driven bias. See, e.g., R. Lerner & A.K. Nagai, No Basis: What the Studies
Don't Tell Us About Same-Sex Parenting, Marriage Law Project (Jan. 2001)
(criticizing forty-nine studies on same-sex parenting -- at least
twenty-six of which were cited by amici in this case -- as suffering from
flaws in formulation of hypotheses, use of experimental controls, use of
measurements, sampling and statistical testing, and finding false negatives);
Stacey, (How) Does the Sexual Orientation of Parents Matter, 66 Am. Soc. Rev.
159, 159-166 (2001) (highlighting problems with sampling pools, lack of longitudinal
studies, and political hypotheses). n28 In Massachusetts, for
example, the State's adoption laws were only recently interpreted to permit
adoption by same-sex partners. Adoption
of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993). It is fair to assume that
most of the children affected by that ruling, who properly would be the
subject of study in their teenage and adult years, are still only children
today. Taking all of this available information into account,
the Legislature could rationally conclude that a family environment with
married opposite-sex parents remains the optimal social structure in which to
bear children, and that the raising of children by same-sex couples, who by
definition cannot be the two sole biological parents of a child and cannot
provide children with a parental authority figure of each gender, n29
presents an alternative structure for child rearing that has not yet proved
itself beyond reasonable scientific dispute to be as optimal as the
biologically based marriage norm. See Baker
v. State, 170 Vt. 194, 222, 744 A.2d 864 (1999) ("conceivable that
the Legislature could conclude that opposite-sex partners offer advantages in
the area [of child rearing], although . . . experts disagree and the answer
is decidedly uncertain"). Cf. Marcoux
v. Attorney Gen., 375 Mass. 63, 65, 375 N.E.2d 688 (1978). Working from
the assumption that a recognition of same-sex marriages will increase the
number of children experiencing this alternative, the Legislature could
conceivably conclude that declining to recognize same-sex marriages remains
prudent until empirical questions about its impact on the upbringing of
children are resolved. n30 n29 This family structure raises
the prospect of children lacking any parent of their own gender. For example,
a boy raised by two lesbians as his parents has no male parent. Contrary to
the suggestion that concerns about such a family arrangement is based on
"stereotypical" views about the differences between sexes, ante at
n.28, concern about such an arrangement remains rational. It is, for example,
rational to posit that the child himself might invoke gender as a
justification for the view that neither of his parents
"understands" him, or that they "don't know what he is going
through," particularly if his disagreement or dissatisfaction involves
some issue pertaining to sex. Given that same-sex couples raising children
are a very recent phenomenon, the ramifications of an adolescent child's
having two parents but not one of his or her own gender have yet to be fully
realized and cannot yet even be tested in significant numbers. But see note
25, supra, regarding studies of children raised without parents of each
gender. n30 The same could be true of any other potentially
promising but recent innovation in the relationships of persons raising
children. The fact that the Commonwealth currently allows same-sex
couples to adopt, see Adoption of
Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993), does not affect the rationality
of this conclusion. The eligibility of a child for adoption presupposes that
at least one of the child's biological parents is unable or unwilling, for
some reason, to participate in raising the child. In that sense, society has
"lost" the optimal setting in which to raise that child -- it is
simply not available. In these circumstances, the principal and overriding
consideration is the "best interests of the child," considering his
or her unique circumstances and the options that are available for that
child. The objective is an individualized determination of the best
environment for a particular child, where the normative social structure -- a
home with both the child's biological father and mother -- is not an option.
That such a focused determination may lead to the approval of a same-sex
couple's adoption of a child does not mean that it would be irrational for a
legislator, in fashioning statutory laws that cannot make such individualized
determinations, to conclude generally that being raised by a same-sex couple
has not yet been shown to be the absolute equivalent of being raised by one's
married biological parents. That the State does not preclude different types of
families from raising children does not mean that it must view them all as
equally optimal and equally deserving of State endorsement and support. n31
For example, single persons are allowed to adopt children, but the fact that
the Legislature permits single-parent adoption does not mean that it has
endorsed single parenthood as an optimal setting in which to raise children
or views it as the equivalent of being raised by both of one's biological
parents. n32 The same holds true with respect to same-sex couples -- the fact
that they may adopt children means only that the Legislature has concluded
that they may provide an acceptable setting in which to raise children who
cannot be raised by both of their biological parents. The Legislature may
rationally permit adoption by same-sex couples yet harbor reservations as to
whether parenthood by same-sex couples should be affirmatively encouraged to
the same extent as parenthood by the heterosexual couple whose union produced
the child. n33 n31 The plaintiffs also argue
that because the State requires insurance companies to provide coverage for
diagnosing and treating infertility unrestricted to those who are married, G.
L. c. 175, § 47H, limiting marriage to
opposite-sex couples is contrary to its currently stated public policy, and,
therefore no longer rational. This argument is not persuasive. The fact that
the Legislature has seen fit to require that health insurers cover the
medical condition of infertility, for all subscribers, is not inconsistent
with the State's policy of encouraging and endorsing heterosexual marriage as
the optimum structure in which to bear and raise children. There is no rule
that requires the State to limit every law bearing on birth and child rearing
to the confines of heterosexual marriage in order to vindicate its policy of
supporting that structure as optimal. Just as the insurance laws relating to
infertility coverage cannot be said to be a State endorsement of childbirth
out of wedlock, they cannot be said to represent an abandonment of the
State's policy regarding a preference that children be born into and raised
in the context of heterosexual marriage. n32 Indeed, just recently, this court
reasoned that the Legislature could permissibly conclude that children being
raised by single parents "may be at heightened risk for certain kinds of
harm when compared with children of so-called intact families," because
such children "may not have or be able to draw on the resources of two
parents" when having to cope with some form of loss. Blixt v. Blixt, 437 Mass. 649, 663, 664,
774 N.E.2d 1052 (2002), cert. denied,
537 U.S. 1189, 154 L. Ed. 2d 1022, 123 S. Ct. 1259 (2003). In
that case, the differences between single parents and parents raising a child
together sufficed to justify subjecting single parents to the grandparent
visitation statute, G. L. c. 119, §
39D. Id. at 662-664. Because
the statute implicated fundamental parental rights, its classifications had
to survive strict scrutiny, id. at
660, not the mere rational basis test at issue in today's opinion. The fact
that single people can adopt children did not insulate them from differential
treatment with respect to their parental rights.n33 Similarly, while the fact
that our laws have evolved to include a strong affirmative policy against
discrimination on the basis of sexual orientation, have decriminalized
intimate adult conduct, and have abolished the legal distinctions between
marital and nonmarital children, may well be a reason to celebrate a more
open and humane society, they ought not be the basis on which to conclude
that there is no longer a rational basis for the current marriage law. See
ante at . To conclude the latter based on the former threatens the process of
social reform in a democratic society. States must be free to experiment in
the realm of social and civil relations, incrementally and without concern
that a step or two in one direction will determine the outcome of the
experiment as a matter of law. If they are not, those who argue
"slippery slope" will have more ammunition than ever to resist any
effort at progressive change or social experimentation, and will be able to
put the lie to the arguments of the proponents of such efforts, that an
incremental step forward does not preordain a result which neither the people
nor their elected representatives may yet be prepared to accept. In addition, the Legislature could conclude that
redefining the institution of marriage to permit same-sex couples to marry
would impair the State's interest in promoting and supporting heterosexual
marriage as the social institution that it has determined best normalizes,
stabilizes, and links the acts of procreation and child rearing. While the
plaintiffs argue that they only want to take part in the same stabilizing
institution, the Legislature conceivably could conclude that permitting their
participation would have the unintended effect of undermining to some degree
marriage's ability to serve its social purpose. See Commonwealth v. Stowell, 389 Mass. 171,
175, 449 N.E.2d 357 (1983) (given State's broad concern with institution
of marriage, it has "legitimate interest in prohibiting conduct which
may threaten that institution"). As long as marriage is limited to opposite-sex couples
who can at least theoretically procreate, society is able to communicate a
consistent message to its citizens that marriage is a (normatively) necessary
part of their procreative endeavor; that if they are to procreate, then
society has endorsed the institution of marriage as the environment for it
and for the subsequent rearing of their children; and that benefits are
available explicitly to create a supportive and conducive atmosphere for
those purposes. If society proceeds similarly to recognize marriages between
same-sex couples who cannot procreate, it could be perceived as an
abandonment of this claim, and might result in the mistaken view that civil
marriage has little to do with procreation: just as the potential of
procreation would not be necessary for a marriage to be valid, marriage would
not be necessary for optimal procreation and child rearing to occur. n34 In
essence, the Legislature could conclude that the consequence of such a policy
shift would be a diminution in society's ability to steer the acts of
procreation and child rearing into their most optimal setting. n35 Hall-Omar Baking Co. v. Commissioner of
Labor & Indus., 344 Mass. 695, 700, 184 N.E.2d 344 (1962)
("Legislative classification is valid if it is rational and bears some
relationship to the object intended to be accomplished" [emphasis
added]). n34 The court contends that the exclusive
and permanent commitment of the marriage partnership rather than the
begetting of children is the sine qua non of civil marriage, ante at, and
that "the 'marriage is procreation' argument singles out the one
unbridgeable difference between same-sex and opposite-sex couples, and
transforms that difference into the essence of legal marriage." Ante at
. The court has it backward. Civil marriage is the product of society's
critical need to manage procreation as the inevitable consequence of intercourse
between members of the opposite sex. Procreation has always been at the root
of marriage and the reasons for its existence as a social institution. Its
structure, one man and one woman committed for life, reflects society's
judgment as how optimally to manage procreation and the resultant child
rearing. The court, in attempting to divorce procreation from marriage,
transforms the form of the structure into its purpose. In doing so, it turns
history on its head. The court compounds its error by
likening the marriage statute to Colorado's "Amendment 2" which was
struck by the United States Supreme Court in
Romer v. Evans, 517 U.S. 620, 633, 134 L. Ed. 2d 855, 116 S. Ct.
1620 (1996). That amendment repealed all Colorado laws and ordinances
that barred discrimination against homosexuals, and prohibited any
governmental entity from adopting similar statutes. The amendment withdrew
from homosexuals, but no others, legal protection from a broad range of
injuries caused by private and governmental discrimination, "imposing a
broad and undifferentiated disability on a single named group." Id. at 632. As the Court noted, its
sheer breadth seems "inexplicable by anything but animus toward the
class it affects." Id. The
comparison to the Massachusetts marriage statute, which limits the
institution of marriage (created to manage procreation) to opposite-sex
couples who can theoretically procreate, is completely inapposite. n35 Although the marriage statute is
overinclusive because it comprehends within its scope infertile or
voluntarily nonreproductive opposite-sex couples, this overinclusiveness does
not make the statute constitutionally infirm. See Massachusetts Fed'n of Teachers v. Board
of Educ., 436 Mass. 763, 778, 767 N.E.2d 549 (2002) ("Some degree of
overinclusiveness or underinclusiveness is constitutionally permissible . .
."). The overinclusiveness present here is constitutionally permissible
because the Commonwealth has chosen, reasonably, not to test every
prospective married couple for fertility and not to demand of fertile
prospective married couples whether or not they will procreate. It is
satisfied, rather, to allow every couple whose biological opposition makes
procreation theoretically possible to join the institution. The court recognizes this concern, but brushes it aside
with the assumption that permitting same-sex couples to marry "will not
diminish the validity or dignity of opposite-sex marriage," ante at, and
that "we have no doubt that marriage will continue to be a vibrant and
revered institution." Ante at . Whether the court is correct in its
assumption is irrelevant. What is relevant is that such predicting is not the
business of the courts. A rational Legislature, given the evidence, could
conceivably come to a different conclusion, or could at least harbor rational
concerns about possible unintended consequences of a dramatic redefinition of
marriage. n36 n36 Concerns about such unintended
consequences cannot be dismissed as fanciful or far-fetched. Legislative
actions taken in the 1950's and 1960's in areas as widely arrayed as domestic
relations law and welfare legislation have had significant unintended adverse
consequences in subsequent decades including the dramatic increase in
children born out of wedlock, and the destabilization of the institution of
marriage. See Nonmarital Childbearing in the United States 1940-99, National
Center for Health Statistics, 48 Nat'l Vital Stat. Reps. at 2 (Oct. 2000)
(nonmarital childbirths increased from 3.8% of annual births in 1940 to 33%
in 1999); M.D. Bramlett, Cohabitation, Marriage, Divorce, and Remarriage in
the United States, National Center for Health Statistics, Vital & Health
Stat. at 4-5 (July 2002) (due to higher divorce rates and postponement of
marriage, proportion of people's lives spent in marriage declined
significantly during later half of Twentieth Century). There is no question that many same-sex couples are
capable of being good parents, and should be (and are) permitted to be so.
The policy question that a legislator must resolve is a different one, and
turns on an assessment of whether the marriage structure proposed by the
plaintiffs will, over time, if endorsed and supported by the State, prove to
be as stable and successful a model as the one that has formed a cornerstone
of our society since colonial times, or prove to be less than optimal, and
result in consequences, perhaps now unforeseen, adverse to the State's
legitimate interest in promoting and supporting the best possible social
structure in which children should be born and raised. Given the critical
importance of civil marriage as an organizing and stabilizing institution of
society, it is eminently rational for the Legislature to postpone making
fundamental changes to it until such time as there is unanimous scientific
evidence, or popular consensus, or both, that such changes can safely be
made. n37 n37 "The State retains wide
latitude to decide the manner in which it will allocate benefits." Moe v. Secretary of Admin. & Fin.,
382 Mass. 629, 652, 417 N.E.2d 387 (1981). To the extent that the
Legislature concludes that one form of social relationship is more optimal
than another for the bearing and raising of children, it is free to promote
and support the one and not the other, so long as its conclusion is rational,
and does not discriminatorily burden the exercise of a fundamental
right. Id. Cf. Rust v. Sullivan, 500 U.S. 173, 192-193,
114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991) ("Government can, without
violating the Constitution, selectively fund a program to encourage certain
activities it believes to be in the public interest, without at the same time
funding an alternative program which seeks to deal with the problems in
another way"). There is no reason to believe that legislative processes
are inadequate to effectuate legal changes in response to evolving evidence,
social values, and views of fairness on the subject of same-sex
relationships. n38 Deliberate consideration of, and incremental responses to
rapidly evolving scientific and social understanding is the norm of the
political process -- that it may seem painfully slow to those who are already
persuaded by the arguments in favor of change is not a sufficient basis to
conclude that the processes are constitutionally infirm. See, e.g., Massachusetts Fed'n of Teachers v. Board
of Educ., 436 Mass. 763, 778, 767 N.E.2d 549 (2002); Mobil Oil v. Attorney Gen., 361 Mass.
401, 417, 280 N.E.2d 406 (1972) (Legislature may proceed piecemeal in
addressing perceived injustices or problems). The advancement of the rights,
privileges, and protections afforded to homosexual members of our community
in the last three decades has been significant, and there is no reason to
believe that that evolution will not continue. Changes of attitude in the
civic, social, and professional communities have been even more profound.
Thirty years ago, The Diagnostic and Statistical Manual, the seminal handbook
of the American Psychiatric Association, still listed homosexuality as a
mental disorder. Today, the Massachusetts Psychiatric Society, the American
Psychoanalytic Association, and many other psychiatric, psychological, and
social science organizations have joined in an amicus brief on behalf of the
plaintiffs' cause. A body of experience and evidence has provided the basis
for change, and that body continues to mount. The Legislature is the
appropriate branch, both constitutionally and practically, to consider and
respond to it. It is not enough that we as Justices might be personally of
the view that we have learned enough to decide what is best. So long as the
question is at all debatable, it must be the Legislature that decides. The
marriage statute thus meets the requirements of the rational basis test.
Accord Standhardt v. Superior
Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (marriage statutes rationally
related to State's legitimate interest in encouraging procreation and child
rearing within marriage); Baker v.
Nelson, 291 Minn. 310, 313, 191 N.W.2d 185 (1971) ("equal protection
clause of the Fourteenth Amendment, like the due process clause, is not
offended by the state's classification of persons authorized to
marry"); Singer v. Hara, 11
Wn. App. 247, 262-263, 522 P.2d 1187 (1974) ("There can be no doubt
that there exists a rational basis for the state to limit the definition of
marriage to exclude same-sex relationships"). n38 Legislatures in many parts of
the country continue to consider various means of affording same-sex couples
the types of benefits and legal structures that married couples enjoy. For
example, in 1999 the California Legislature established the first Statewide
domestic partner registry in the nation, and in each of the years 2001, 2002,
and 2003 substantially expanded the rights and benefits accruing to
registered partners. Cal. Fam. Code § §
297 et seq. (West Supp. 2003). See also comments of Massachusetts
Senate President Robert Traviglini to the effect that he intends to bring
civil union legislation to the floor of the Senate for a vote. Mass. Senate
Eyes Civil Unions: Move Comes as SJC Mulls Gay Marriages, Boston Globe, Sept.
7, 2003, at A1. D. Conclusion. While "the Massachusetts
Constitution protects matters of personal liberty against government
incursion as zealously, and often more so, than does the Federal Constitution,"
ante at -, this case is not about government intrusions into matters of
personal liberty. It is not about the rights of same-sex couples to choose to
live together, or to be intimate with each other, or to adopt and raise
children together. It is about whether the State must endorse and support
their choices by changing the institution of civil marriage to make its
benefits, obligations, and responsibilities applicable to them. While the
courageous efforts of many have resulted in increased dignity, rights, and
respect for gay and lesbian members of our community, the issue presented
here is a profound one, deeply rooted in social policy, that must, for now,
be the subject of legislative not judicial action. |
|
