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Hillary GOODRIDGE
& others [FN1] vs. DEPARTMENT OF PUBLIC HEALTH & another.
[FN2] SJC-08860
November 18, 2003
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Unofficial
Synopsis Prepared by the Reporter of Decisions
The Supreme
Judicial Court held today 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." The court stayed the entry of
judgment for 180 days "to permit the Legislature to take such action
as it may deem appropriate in light of this
opinion."
"Marriage is a vital social institution," wrote
Chief Justice Margaret H. Marshall for the majority of the Justices.
"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 turn it imposes weighty legal, financial, and social
obligations." The question before the court was "whether, consistent
with the Massachusetts Constitution," the Commonwealth could deny
those protections, benefits, and obligations to two individuals of
the same sex who wish to marry.
In ruling that the
Commonwealth could not do so, the court observed that the
Massachusetts Constitution "affirms the dignity and equality of all
individuals," and "forbids the creation of second-class citizens."
It reaches its conclusion, the court said, giving "full deference to
the arguments made by the Commonwealth." The Commonwealth, the court
ruled, "has failed to identify any constitutionality adequate reason
for denying civil marriage to same-sex couples."
The court
affirmed that it owes "great deference to the Legislature to decide
social and policy issues." Where, as here, the constitutionality of
a law is challenged, it is the "traditional and settled role" of
courts to decide the constitutional question. The "marriage ban" the
court held, "works a deep and scarring hardship" on same-sex
families "for no rational reason." It prevents 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."' "It cannot be rational under our laws," the court
held, "to penalize children by depriving them of State benefits"
because of their parents' sexual orientation.
The court
rejected the Commonwealth's claim that the primary purpose of
marriage was procreation. Rather, the history of the marriage laws
in the Commonwealth demonstrates that "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
marriage."
The court remarked that its decision "does not
disturb the fundamental value of marriage in our society." "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," the court stated.
The opinion
reformulates the common-law definition of civil marriage to mean
"the voluntary union of two persons as spouses, to the exclusion of
all others. Nothing that "civil marriage has long been termed a
'civil right,"' the court concluded that "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."
Justices John M. Greaney, Roderick L. Ireland, and
Judith A. Cowin joined in the court's opinion. Justice Greaney also
filed a separate concurring opinion.
Justices Francis X.
Spina, Martha B. Sosman, and Robert J. Cordy each filed separate
dissenting opinions.
Justice Greaney concurred "with the
result reached by the court, the remedy ordered, and much of the
reasoning in the court's opinion," but expressed the view that "the
case is more directly resolved using traditional equal protection
analysis." He stated that to withhold "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." Moreover, Justice
Greaney concluded that such a restriction is impermissible under
art. 1 of the Massachusetts Declaration of Rights. In so doing,
Justice Greaney did not rely on art. 1, as amended in 1976, because
the voters' intent in passing the amendment was clearly not to
approve gay marriage, but he relied on
well-established principles of equal protection that antedated the
amendment.
Justice Cordy, with whom Justice Spina and Justice
Sosman joined, dissented on the ground that the marriage statute, as
historically interpreted to mean the union of one man and one woman,
does not violate the Massachusetts Constitution because "the
Legislature could rationally conclude that it furthers the
legitimate State purpose of ensuring, promoting, and supporting an
optimal social structure for the bearing and raising of children."
Justice Cordy stated that the court's conclusions to the contrary
are unsupportable in light of "the presumption of constitutional
validity and significant deference afforded to legislative
enactments, and the 'undesirability of the judiciary substituting
its notion of correct policy for that of a popularly elected
legislature' responsible for making it.' Further, Justice Cordy
stated that "[w]hile 'the Massachusetts Constitution protects
matters of personal liberty against government intrusion at least as
zealously and often more so than does the Federal Constitution,'
this case is not about government intrusions into matters of
personal liberty," but "about whether the State must endorse and
support [the choices of same-sex couples] by changing the
institution of civil marriage to make its benefits, obligations, and
responsibilities applicable to them." Justice Cordy concluded that,
although the plaintiffs had made a powerful case
for the extension of the benefits and burdens of civil marriage to
same-sex couples, the issue "is one deeply rooted in social policy"
and 'that decision must be made by the Legislature, not the
court."
Justice Spina, in a separately filed dissenting
opinion, stated that "[W]hat is at stake in this case is not the
unequal treatment of individuals or whether individuals 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." He
emphasized that the "power to regulate marriage lies with the
Legislature, not with the judiciary."
Justice Sosman, in a
separately filed dissenting opinion, stated that "the issue is not
whether the Legislature's rationale behind [the statutory scheme
being challenged] is persuasive to [the court]," but whether it is
"rational" for the Legislature to "reserve judgment" on whether
changing the definition of marriage "can be made at this time
without damaging the institution of marriage or adversely affecting
the critical role it has played in our society." She concluded that,
"[a]bsent 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 redefinition will not have
unintended and undesirable social consequences."
Hillary GOODRIDGE & others [FN1]
vs. DEPARTMENT OF PUBLIC HEALTH & another.
[FN2]
SJC-08860
March 4, 2003. - November 18, 2003.
Present: Marshall, C.J., Greaney, Ireland,
Spina, Cowin, Sosman, & Cordy, JJ.
License. Marriage. Statute, Construction.
Constitutional Law, Police power, Equal protection of laws.
Due Process of Law, Marriage. Words,
"Marriage."
Civil action commenced in the Superior Court
Department on April 11, 2001.
The case was heard by Thomas
E. Connolly, J., on motions for summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Mary Lisa Bonauto (Gary D.
Buseck with her) for Hillary Goodridge.
Judith S.
Yogman, Assistant Attorney General, for Department of Public
Health.
The following submitted briefs for amici
curiae:
Joseph P.J. Vrabel, Mark D. Mason, & Martin W.
Healy for Massachusetts Bar Association.
Leslie Cooper
& James D. Esseks, of New York, Jon W. Davidson &
Shannon Minter, of California, Elliot M. Mincberg &
Judith E. Schaeffer, of the District of Columbia, & John
Reinstein, Sarah R. Wunsch, Paul Holtzman, & Hugh Dun
Rappaport for Urban League of Eastern Massachusetts &
others.
Paul Benjamin Linton, of Illinois, &
Thomas M. Harvey for Robert J. Araujo &
others.
Dwight G. Duncan for Massachusetts Family
Institute, Inc., & others.
Glen
Lavy, of Arizona, Stephen W. Reed, of California,
& Bertin C. Emmons for National Association for Research
and Therapy of Homosexuality, Inc., & others.
Robert
W. Ash & Vincent P. McCarthy, of Connecticut, &
Philip E. Cleary for The Common Good Foundation &
others.
Don Stenberg, Attorney General of Nebraska,
Mark L. Shurtleff, Attorney General of Utah, Brent A.
Burnett, Assistant Attorney General of Utah, & Mark
Barnett, Attorney General of South Dakota, for the State of Utah
& others.
Chester Darling & Michael Williams
for Massachusetts Citizens Alliance & another.
Daniel
Avila for The Catholic Action League of
Massachusetts.
Joshua K. Baker, of California,
& Robert G. Caprera for José Martín de Agar &
others.
Wendy J. Herdlein, of California, &
James R. Knudsen for the Honorable Philip Travis &
others.
Steven W. Fitschen, of
Virginia, for The National Legal Foundation.
Jeffrey A.
Shafer & David R. Langdon, of Ohio, William C.
Duncan, of Utah, & Wendy J. Herdlein, of California,
for Marriage Law Project.
Lisa Rae, Kenneth Elmore, Arthur
Berney, & Josephine Ross for The Religious Coalition for the
Freedom to Marry & others.
Ann DiMaria for The
Ethics & Religious Liberty Commission &
others.
Anthony Mirenda, Vickie L. Henry, Lucy Fowler,
John M. Granberry, Rachel N. Lessem, & Gabriel M. Helmer for
Robert F. Williams & others.
Kenneth J. Parsigian
for Peter W. Bardaglio & others. David Cruz, of New York,
John Taylor Williams, Carol V. Rose, Debra Squires-Lee,
Christopher Morrison, & Marni Goldstein Caputo for William
E. Adams & others.
Martin J. Newhouse & Katharine
Bolland for Coalition gaie et lesbienne du Québec &
others.
Joseph Ureneck, pro se.
Teresa S. Collett, of Texas, &
Luke Stanton for Free Market Foundation.
Peter F.
Zupcofska, L. Tracee Whitley, Heidi A. Nadel, & Corin R.
Swift for Boston Bar Association & another.
Mary
Jo Johnson, Jonathan A. Shapiro, & Amy L. Nash for The
Massachusetts Psychiatric Society & others.
Tony R.
Maida, Nina Joan Kimball, & Justine H. Brousseau for Libby
Adler & others.
Daryl J. Lapp, Kevin D. Batt, &
Katharine Silbaugh for Monroe Inker &
another.
David Zwiebel, Mordechai Biser, & Nathan J.
Diament, of New York, & Abba Cohen, of the District
of Columbia, for Agudath Israel of America &
others.
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, 123 S.Ct. 2472, 2480 (2003)
(Lawrence ), quoting Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850 (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. [FN3] 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.
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 David 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 "enforce[s] 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. [FN4], [FN5]
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. [FN6]
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 [p]laintiff 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. [FN7], [FN8]
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. [FN9], [FN10]
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 (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 (1934). The
everyday meaning of "marriage" is "[t]he 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 (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. [FN11]
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 (1996)
(noting convergence of due process and equal protection principles
in cases concerning parent-child relationships); Perez v.
Sharp, 32 Cal.2d 711, 728 (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 (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 (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 "[i]n 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 (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 (1898) (on marriage, the parties "assume[ ] new
relations to each other and to the State"). See also French v.
McAnarney, 290 Mass. 544, 546 (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 (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 (1960). [FN12] See Commonwealth
v. Alger, 7 Cush. 53, 85 (1851).
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 (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. [FN13] See
Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert.
denied, 519 U.S. 827 (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 (1998). See Collins
v. Guggenheim, 417 Mass. 615, 618 (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 (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 (1977) (unmarried partners not entitled to rights
of separate support or alimony). See generally Attorney Gen.
v. Desilets, 418 Mass. 316, 327-328 & nn. 10, 11
(1994).
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 (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 (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 (2003);
Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546
(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 (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 (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 (1993) (identifying marriage
as a "civil right[ ]"); Baker v. State, 170 Vt. 194, 242
(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 (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"). [FN14]
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 (1948) ("There can be no
prohibition of marriage except for an important social objective and
reasonable means"). [FN15]
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 (1983)
(marriage); Moe v. Secretary of Admin. & Fin., 382 Mass.
629, 652 (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 (1998); Collins v. Guggenheim, 417 Mass.
615, 618 (1994); Feliciano v. Rosemar Silver Co., 401 Mass.
141, 142 (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 (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 (1967). [FN16] 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. [FN17]
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 (1997); Corning Glass
Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416
(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
(1995). [FN18]
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 (1981);
Dalli v. Board of Educ., 358 Mass. 753, 759 (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 (1992); Zablocki v. Redhail, 434 U.S. 374, 384
(1978); Roe v. Wade, 410 U.S. 113, 152-153 (1973);
Eisenstadt v. Baird, 405 U.S. 438, 453 (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 (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
(1974). [FN19] 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
(1992). See, e.g., Massachusetts Fed'n of Teachers v. Board of
Educ., 436 Mass. 763, 778 (2002) (equal protection);
Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348
Mass. 414, 422 (1965) (due process). Any law failing to satisfy the
basic standards of rationality is void.
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 (1980). For all other statutes, we employ the "
'rational basis' test." English v. New England Med. Ctr., 405
Mass. 423, 428 (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 (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 (1985) (Stevens, J., concurring).
[FN20]
The department argues that no fundamental right or
"suspect" class is at issue here, [FN21] 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.
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 (1891) ("The consummation of a
marriage by coition is not necessary to its validity"). [FN22]
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. [FN23]
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. [FN24] 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.
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 (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. [FN25]
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 (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 (2002), cert. denied, 537 U.S. 1189 (2003) (same);
E.N.O. v. L.M.M., 429 Mass. 824, cert. denied, 528
U.S. 1005 (1999) (de facto parent); Youmans v. Ramos, 429
Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416
Mass. 205 (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 (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 (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
& 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 Deaconness Med. Ctr., 435 Mass.
285, 292 (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).
[FN26]
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. [FN27] 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.
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. [FN28] 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.
[FN29]
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. [FN30] 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.
[FN31]
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 (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 (1987); Loving v.
Virginia, 388 U.S. 1 (1967); Perez v. Sharp, 32 Cal.2d
711 (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 (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 (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. [FN32] Marriage has survived all of these
transformations, and we have no doubt that marriage will continue to
be a vibrant and revered institution.
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 (1974) (decriminalization of private
consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499,
503 (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.
[FN33] "The Constitution cannot control such prejudices but neither
can it tolerate them. Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect."
Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (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.
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 (1981);
Dalli v. Board of Educ., 358 Mass. 753, 759 (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.
[FN34] 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, 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 (1987) (reforming the
common-law rule of construction of "issue"); Lewis v. Lewis,
370 Mass. 619, 629 (1976) (abolishing common-law rule of certain
interspousal immunity).
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
(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
(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 (1978) ("the right to marry is of fundamental
importance for all individuals"); Loving v. Virginia, 388
U.S. 1, 12 (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 (1942) (marriage is one of "basic
civil rights of man"). See also Turner v. Safley, 482 U.S.
78, 95-96 (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").
[FN1]
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 (1993) (plurality
opinion) (Hawaii marriage statutes created sex-based
classification); Baker v. State, 170 Vt. 194, 253 (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. [FN2]
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 (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 further by the statutes that
can be accomplished in no other reasonable manner. [FN3] See
Blixt v. Blixt, 437 Mass. 649, 655-656 (2002), cert. denied,
537 U.S. 1189 (2003); Lowell v. Kowalski, 380 Mass. 663,
667-669 (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.
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,
cert. denied, 528 U.S. 1005 (1999); Adoption of Tammy, 416
Mass. 205, 210-211 (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 (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 (1982).
[FN4]
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. [FN5] 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 (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, 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 (1992) ( "Our obligation is to
define the liberty of all, not to mandate our own moral
code").
(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
(1965). Because of the terms of art. 1, the plaintiffs will no
longer be excluded from that association. [FN6]
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. [FN1] The power to regulate
marriage lies with the Legislature, not with the judiciary. See
Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). Today,
the court has transformed its role as protector of individual rights
into the role of creator of rights, and I respectfully
dissent.
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.
[FN2] 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
(1979). See also United States v. Virginia, 518 U.S. 515
(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 (1977) (law
prohibiting prostitution not discriminatory based on gender because
of equal application to men and women).
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 (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
(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, [FN3] 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 (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 (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.
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 (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 (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 (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 (1999). When analyzing a claim that the State has impermissibly
burdened an individual's fundamental or other right or liberty
interest, "[w]e 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 (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 (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 (1997), quoting Palko v. Connecticut, 302 U.S.
319, 325, 326 (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 (1983) (O'Connor,
J., dissenting), cert. denied sub nom. Keefe v.
Massachusetts, 465 U.S. 1068 (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 & 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 (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 (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 (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 (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 (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 (1997) (receiving workers' compensation benefits
not fundamental right); Doe v. Superintendent of Schs. of
Worcester, 421 Mass. 117, 129 (1995) (declaring education not
fundamental right); Williams v. Secretary of the Executive Office
of Human Servs., 414 Mass. 551, 565 (1993) (no fundamental right
to receive mental health services); Matter of Tocci, 413
Mass. 542, 548 n. 4 (1992) (no fundamental right to practice law);
Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542
(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
(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 (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, 123 S.Ct. 2472 (2003) (private
nature of sexual behavior implicates increased due process
protection); Eisenstadt v. Baird, 405 U.S. 438 (1972)
(privacy protection extended to procreation decisions within
nonmarital context); Griswold v. Connecticut, 381 U.S. 479
(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. [FN1] 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 (2002) (Sosman, J., dissenting),
cert. denied, 537 U.S. 1189 (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.
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"); ante at
("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 "impose[s] limits on personal beliefs");
ante at n. 31] (suggesting that "total deference" to
Legislature in this case would be equivalent to "strip[ping]"
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"); ante at, (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
abrogate 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
(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 (2002), cert.
denied, 537 U.S. 1189 (2003) (fundamental right); Lowell v.
Kowalski, 380 Mass. 663, 666 (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 (1986), quoting Paro v. Longwood
Hosp., 373 Mass. 645, 649 (1977). This test, referred to in
State and Federal constitutional jurisprudence as the "rational
basis test," [FN1] 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 (1985) (applying rational basis review to question of State
exercise of police power).
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 of "marry." [FN2]
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 (1987);
Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v.
Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381
U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (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. [FN3] An
examination of those interests reveals that they are either not
shared by same-sex couples or not implicated by the marriage statutes.
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. [FN4] 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 "[m]arriage 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 (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." Id. 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.
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 (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 (1978), or to derive "controversial 'new' rights
from the Constitution." Aime v. Commonwealth, 414 Mass. 667,
674 n. 10 (1993).
What the Griswold
Court found "repulsive to the notions of privacy surrounding the
marriage relationship" was the prospect of "allow[ing] 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 (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 relations[hip]," Griswold v.
Connecticut, supra at 495 (Goldberg, J., concurring), he was
obviously referring to sexual relations. [FN5] Similarly, in
Lawrence v. Texas, 123 S.Ct. 2472 (2003), it was the
criminalization of private sexual behavior that the Court found
violative of the petitioners' liberty interest.
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 (1982) (see
Opinion of the Justices, 423 Mass. 1201, 1234-1235 [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 (1990); or
whether or not to accept medical treatment, see Brophy v. New
England Sinai Hosp., Inc., 398 Mass. 417, 430 (1986);
Superintendent of Belchertown State Sch. v. Saikewicz,
373 Mass. 728, 742 (1977), none of which is at issue here. See also
Commonwealth v. Balthazar, 366 Mass. 298, 301 (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 (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. [FN6] 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.
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 (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 (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 (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 (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
(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 (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 (1980), such status has never been
recognized as a fundamental right. See Paul v. Davis, 424
U.S. 693, 701 (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 (1923); Pierce v. Society of
Sisters, 268 U.S. 510, 534-535 (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 (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 [FN7] 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. [FN8] 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 (1997).
"[T]o 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
(1937). See Dutil, petitioner, 437 Mass. 9, 13 (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.
[FN9]
Applying this limiting principle, the Supreme Court, as
noted above, declined to recognize a fundamental right to
physician-assisted suicide, which would have required "revers[ing]
centuries of legal doctrine and practice, and strik [ing] 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. [FN10]
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 (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 (2002) ("social
consensus about family relationships is relevant to the
constitutional limits on State intervention").
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, "[t]he 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
(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
(1976), quoting Leland v. Oregon, 343 U.S. 790, 798
(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
(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 (2002),
quoting Penry v. Lynaugh, 492 U.S. 302, 331 (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
(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
(1971), appeal dismissed, 409 U.S. 810 (1972); Storrs v.
Holcomb, 168 Misc.2d 898, 899-900 (N.Y.Sup.Ct.1996), dismissed,
245 A.D.2d 943 (N.Y.1997). [FN11]. The one exception was the Alaska
Superior Court, which relied on that State's Constitution's express
and broadly construed right to privacy. Brause, 1998 WL 88743
at *3-*4. [FN12] 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.
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). [FN13] Such a
conclusion is analytically unsound and inconsistent with the
legislative history of the ERA.
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 (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
(1999) ("there is no discrete class subject to differential
treatment solely on the basis of sex"). Compare Commonwealth v.
King, 374 Mass. 5, 16 (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 (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 (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 (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. [FN14]
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. [FN15]
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. [FN16]
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 "[t]hose 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 (1977). The statute "only need[s to]
be supported by a conceivable rational basis." Fine v.
Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988).
See Massachusetts Fed'n of Teachers v. Board of Educ., 436
Mass. 763, 771-772 (2002). As this court stated in Shell Oil Co. v. Revere, 383 Mass. 682,
687-688 (1981):
"[I]t is not the court's function to launch
an inquiry to resolve a debate which has already been settled in the
legislative forum. '[I]t [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 (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 (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 (1996), cert. denied, 520 U.S.
1131 (1997), quoting Commonwealth v. A Juvenile, 368 Mass.
580, 595 (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. [FN17] 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.
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 (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 (1942) ("Marriage
and procreation are fundamental to the very existence and survival
of the [human] race"); Maynard v. Hill,
125 U.S. 190, 211 (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 (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 (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, [FN18] the range of responsibilities required of
it as an institution, [FN19] and the legal environment in which it
exists. [FN20] 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).
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. [FN21]
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. [FN22]
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 (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 (1939) ("any rational basis of
fact that can be reasonably conceived" may support legislative
finding); Mutual Loan Co. v. Martell, 200 Mass. 482, 487
(1909), aff'd, 222 U.S. 225 (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 [FN23]; (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, [FN24] and
scholarly commentary contending that children and families develop
best when mothers and fathers are partners in their parenting
[FN25]; 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
[FN26]; support the proposition that children of same-sex couples
fare worse on some measures [FN27]; or reveal notable differences
between the two groups of children that warrant further study.
[FN28]
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, [FN29] 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).
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, [FN30] 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 (1999) ("conceivable that the Legislature could conclude
that opposite-sex partners offer advantages in th[e] area [of child
rearing], although ... experts disagree and the answer is decidedly
uncertain"). Cf. Marcoux v. Attorney Gen., 375 Mass. 63, 65
(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. [FN31]
The fact that the
Commonwealth currently allows same-sex couples to adopt, see
Adoption of Tammy, 416 Mass. 205 (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.
[FN32] 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. [FN33] 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.
[FN34]
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 (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. [FN35]
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. [FN36] Hall-Omar Baking Co. v. Commissioner of
Labor & Indus., 344 Mass. 695, 700 (1962) ("Legislative
classification is valid if it is rational and
bears some relationship to the object intended to be
accomplished" [emphasis added] ).
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.
[FN37]
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.
[FN38]
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. [FN39] 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 (2002); Mobil Oil v. Attorney Gen., 361 Mass. 401,
417 (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 (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 Wash.App.
247, 262-263 (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").
D.
Conclusion. While "the Massachusetts Constitution protects
matters of personal liberty against government intrusion at least 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.
1. Julie
Goodridge, David Wilson, Robert Compton, Michael Horgan, Edward
Balmelli, Maureen Brodoff, Ellen Wade, Gary Chalmers, Richard
Linnell, Heidi Norton, Gina Smith, Gloria Bailey, and Linda
Davies.
2. Commissioner of Public Health.
3. 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 (1993);
Baker v. State, 170 Vt. 194, 242 (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 (1982);
Jones v. Hallahan, 501 S.W.2d 588 (Ky.Ct.App.1973); Baker
v. Nelson, 291 Minn. 310 (1971), appeal dismissed, 409 U.S. 810
(1972); Singer v. Hara, 11 Wash.App. 247 (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).
4. 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.
5. 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.
6. 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."
7. 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: "[N]o 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."
8. 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.
9. 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.
10. "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
[c]ommissioner's copy, signed by the [c]ommissioner or the
[r]egistar, is admissible as evidence of the record." Secretary
of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178,
181-182 (1977).
11. 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
(1993).
12. "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 (1955).
13. 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).
14. 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. 376, 383 (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.
15. 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 (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 (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 (2000), quoting Moore v. East Cleveland, 431
U.S. 494, 499 (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.
16. 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 (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 (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 State's antimiscegenation statute to violate 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.
17. 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").
18. 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 (1989) (freedom from
intrusive drug testing in highly regulated industry); Cepulonis
v. Secretary of the Commonwealth, 389 Mass. 930 (1983) (inmates'
right to register to vote); Batchelder v. Allied Stores Int'l,
Inc., 388 Mass. 83 (1983) (freedom to solicit signatures for
ballot access in public election); Moe v. Secretary of Admin.
& Fin., 382 Mass. 629 (1981) (right to
State Medicaid payment for medically necessary abortions);
Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348
Mass. 414 (1965) (freedom to pursue one's lawful
business).
19. 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 (1971), quoting
Jones v. Robbins, 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").
20. 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 (1993), citing
Mathews v. Lucas, 427 U.S. 495, 510 (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 (1993) (fee
imposed on retention of counsel in administrative proceedings);
Secretary of the Commonwealth v. City Clerk of Lowell, 373
Mass. 178, 186 (1977) (selection of surname for nonmarital child);
Aetna Cas. & Sur. Co. v. Commissioner of Ins., 358
Mass. 272, 280- 281 (1970) (automobile insurance ratesetting);
Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass.
414, 422 (1965) (sale of wholesome product); Mansfield Beauty
Academy, Inc. v. Board of Registration of Hairdressers,
326 Mass. 624, 627 (1951) (right to charge for materials furnished
to models by trade school); Opinion of the Justices, 322
Mass. 755, 760-761 (1948) (proposed statute concerning regulating
cemeteries); Boston Elevated Ry. v. Commonwealth, 310
Mass. 528, 556-557 (1942) (legislation impairing contract right);
Durgin v. Minot, 203 Mass. 26, 28 (1909) (statute authorizing
certain board of health regulations).
21. 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.
22. 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 (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 (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 (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.
23. 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 (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).
24. 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 (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 (2002) (posthumous
reproduction); Culliton v. Beth Israel Deaconness Med. Ctr.,
435 Mass. 285, 293 (2001) (gestational surrogacy).
25. 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.
26. 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.
27. 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.
28. Justice
Cordy suggests that we have "transmuted the 'right' to marry into
the 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.
Post at (Cordy, J., dissenting). 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.
29. 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.
30. 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 (1909), aff'd, 222 U.S. 225
(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
(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 (2002).
31. 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 (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 (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).
32. 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.
33. 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 (1977) (nonmarital children);
Angelini v. OMD Corp., 410 Mass. 653, 662, 663 (1987) ("The
traditional common law rules which discriminated against children
born out of wedlock have been discarded" and "[w]e 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 (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 (1979), quoting Walz
v. Tax Comm'n of the City of N.Y., 397 U.S. 664, 678 (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 (1946) (constitutional contours of State's regulatory authority
coextensive "with the changing needs of society").
34. 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 polygamous
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 (1979)
(construing word "father" in unconstitutional, underinclusive
provision to mean "parent"); Browne's Case, 322 Mass. 429,
430 (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").
1. 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 (1981).
2. In her separate opinion in
Baker v. State, 170 Vt. 194, 253 (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."
3. 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 (2002),
cert. denied, 537 U.S. 1189 (2003) (concluding
G.L. c. 119, § 39D, grandparent visitation statute, furthered
compelling State interest in mitigating potential harm to children
in nonintact families).
4. 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.
5. 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.
6. 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.
1. 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."
2. 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."
3. Marriage is the civil union
between a single man and a single woman. See Milford v.
Worcester, 7 Mass. 48, 52 (1810).
1. 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).
1. 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 (1999).
2. 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.
3. 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.
4. For example, see G.L. c. 272, §§ 14 and
18, the Massachusetts adultery and fornication statutes.
5.
While the facts of Griswold v. Connecticut, 381 U.S. 479
(1965), involved a married couple, later decisions clarify that its
holding was not premised on the marriage relationship. See Carey
v. Populations Servs. Int'l, 431 U.S. 678, 687 (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 (1972) (same).
6. Contrast Lawrence v.
Texas, 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.
7.
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 (1978).
8. Tobin's
Case, 424 Mass. 250, 252-253 (1997) (no fundamental right to
receive workers' compensation benefits); Doe v. Superintendent of
Schs. of Worcester, 421 Mass. 117, 129 (1995) (no fundamental
right to education); Williams v. Secretary of the Executive
Office of Human Servs., 414 Mass. 551, 565 (1993) (no
fundamental right to receive mental health services); Matter of
Tocci, 413 Mass. 542, 548 n. 4 (1992) (no fundamental right to
practice law); Rushworth v. Registrar of Motor Vehicles, 413
Mass. 265, 269 n. 5 (1992) (no fundamental right to operate motor
vehicle); English v. New England Med. Ctr., Inc., 405 Mass.
423, 429 (1989), cert. denied, 493 U.S. 1056 (1990) (no fundamental
right to recover tort damages); Commonwealth v. Henry's Drywall
Co., 366 Mass. 539, 542 (1974) (no fundamental right to pursue
one's business). Cf. Aime v. Commonwealth, 414 Mass. 667, 674
n. 10 (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,
cert. denied, 525 U.S. 1040 (1998), quoting DeShaney v. Winnebago
County Dep't of Social Servs., 489 U.S. 189, 203 (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
...").
9. See Michael H. v. Gerald D., 491 U.S.
110, 122-123 & n. 3, 127 (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
(1965) (Harlan, J., concurring) (same).
10. Compare Curtis
v. School Comm. of Falmouth, 420 Mass. 749, 756 (1995), cert.
denied, 516 U.S. 1067 (1996), quoting Wisconsin v. Yoder, 406
U.S. 205, 232 (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 (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 (1981) (characterizing
decision whether to bear a child as "hold[ing] 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 (1995), quoting Medina v.
California, 505 U.S. 437, 445 (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 (1983), cert. denied sub nom. Keefe v.
Massachusetts, 465 U.S. 1068 (1984) (declining to find
fundamental right to child-parent privilege where "[n]either
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 (1983), quoting Roe v. Wade,
410 U.S. 113, 152 (1973) (declining to recognize right not "implicit
in the concept of ordered liberty").
11. 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.
12. 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 (1993); Baker
v. Nelson, 291 Minn. 310, 312-314 (1971); Storrs v.
Holcomb, 168 Misc.2d 898, 899-900 (N.Y.Sup.Ct.1996), dismissed,
245 A.D.2d 943 (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).
13. Article 106 is referred to as the Equal Rights
Amendment.
14. Justice Greaney views Loving v.
Virginia, 388 U.S. 1 (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.
15. The commission was composed of five State
representatives, three State senators and three gubernatorial
appointees. All of the gubernatorial appointees were
attorneys.
16. The Washington case cited by the commission
was Singer v. Hara, 11 Wash.App. 247 (1974).
17.
Modern DNA testing may reveal actual paternity, but it establishes
only a genetic relationship between father and child.
18. 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.
19. 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.
20. No-fault divorce has made the dissolution of
marriage much easier than ever before.
21. "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.
22. In support of its conclusion that the marriage
statute does not satisfy the rational basis test, the court
emphasizes that "[t]he 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.
23. 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).
24.
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).
25. 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) ("[s]tatistics continue to
show that the most stable family for children to grow up in is that
consisting of a father and a mother").
26. 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).
27. 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).
28. 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 the impact of divorce
and remarriage on children should focus on "nontraditional"
stepfamilies, particularly same-sex couples with children, because
the impact of such arrangements have been overlooked in other
studies).
29. 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 (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.
30. 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.
31. The same could be true of any other
potentially promising but recent innovation in the relationships of
persons raising children.
32. 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.
33. 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 (2002), cert.
denied, 537 U.S. 1189 (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.
34. 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.
35. 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 (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.
36.
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 (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.
37. 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).
38. "[T]he State retains wide latitude to decide
the manner in which it will allocate benefits." Moe v. Secretary
of Admin. & Fin., 382 Mass. 629, 652 (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 (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").
39. 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.
|
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Unofficial
Synopsis Prepared by the Reporter of Decisions
The Supreme Judicial
Court held today 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." The court stayed the entry of judgment for 180 days "to
permit the Legislature to take such action as it may deem appropriate in
light of this opinion."
"Marriage is a vital social institution,"
wrote Chief Justice Margaret H. Marshall for the majority of the Justices.
"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 turn it
imposes weighty legal, financial, and social obligations." The question
before the court was "whether, consistent with the Massachusetts
Constitution," the Commonwealth could deny those protections, benefits,
and obligations to two individuals of the same sex who wish to
marry.
In ruling that the Commonwealth could not do so, the court
observed that the Massachusetts Constitution "affirms the dignity and
equality of all individuals," and "forbids the creation of second-class
citizens." It reaches its conclusion, the court said, giving "full
deference to the arguments made by the Commonwealth." The Commonwealth,
the court ruled, "has failed to identify any constitutionality adequate
reason for denying civil marriage to same-sex couples."
The court
affirmed that it owes "great deference to the Legislature to decide social
and policy issues." Where, as here, the constitutionality of a law is
challenged, it is the "traditional and settled role" of courts to decide
the constitutional question. The "marriage ban" the court held, "works a
deep and scarring hardship" on same-sex families "for no rational reason."
It prevents 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."' "It cannot be rational under our laws," the court held, "to
penalize children by depriving them of State benefits" because of their
parents' sexual orientation.
The court rejected the Commonwealth's
claim that the primary purpose of marriage was procreation. Rather, the
history of the marriage laws in the Commonwealth demonstrates that "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
marriage."
The court remarked that its decision "does not disturb
the fundamental value of marriage in our society." "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," the court
stated.
The opinion reformulates the common-law definition of civil
marriage to mean "the voluntary union of two persons as spouses, to the
exclusion of all others. Nothing that "civil marriage has long been termed
a 'civil right,"' the court concluded that "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."
Justices John M.
Greaney, Roderick L. Ireland, and Judith A. Cowin joined in the court's
opinion. Justice Greaney also filed a separate concurring
opinion.
Justices Francis X. Spina, Martha B. Sosman, and Robert J.
Cordy each filed separate dissenting opinions.
Justice Greaney
concurred "with the result reached by the court, the remedy ordered, and
much of the reasoning in the court's opinion," but expressed the view that
"the case is more directly resolved using traditional equal protection
analysis." He stated that to withhold "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." Moreover, Justice Greaney concluded that such a
restriction is impermissible under art. 1 of the Massachusetts Declaration
of Rights. In so doing, Justice Greaney did not rely on art. 1, as amended
in 1976, because the voters' intent in passing the amendment was clearly
not to approve gay marriage, but he relied on
well-established principles of equal protection that antedated the
amendment.
Justice Cordy, with whom Justice Spina and Justice
Sosman joined, dissented on the ground that the marriage statute, as
historically interpreted to mean the union of one man and one woman, does
not violate the Massachusetts Constitution because "the Legislature could
rationally conclude that it furthers the legitimate State purpose of
ensuring, promoting, and supporting an optimal social structure for the
bearing and raising of children." Justice Cordy stated that the court's
conclusions to the contrary are unsupportable in light of "the presumption
of constitutional validity and significant deference afforded to
legislative enactments, and the 'undesirability of the judiciary
substituting its notion of correct policy for that of a popularly elected
legislature' responsible for making it.' Further, Justice Cordy stated
that "[w]hile 'the Massachusetts Constitution protects matters of personal
liberty against government intrusion at least as zealously and often more
so than does the Federal Constitution,' this case is not about government
intrusions into matters of personal liberty," but "about whether the State
must endorse and support [the choices of same-sex couples] by changing the
institution of civil marriage to make its benefits, obligations, and
responsibilities applicable to them." Justice Cordy concluded that,
although the plaintiffs had made a powerful case for the
extension of the benefits and burdens of civil marriage to same-sex
couples, the issue "is one deeply rooted in social policy" and 'that
decision must be made by the Legislature, not the court."
Justice
Spina, in a separately filed dissenting opinion, stated that "[W]hat is at
stake in this case is not the unequal treatment of individuals or whether
individuals 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."
He emphasized that the "power to regulate marriage lies with the
Legislature, not with the judiciary."
Justice Sosman, in a
separately filed dissenting opinion, stated that "the issue is not whether
the Legislature's rationale behind [the statutory scheme being challenged]
is persuasive to [the court]," but whether it is "rational" for the
Legislature to "reserve judgment" on whether changing the definition of
marriage "can be made at this time without damaging the institution of
marriage or adversely affecting the critical role it has played in our
society." She concluded that, "[a]bsent 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 redefinition will not have unintended and
undesirable social consequences."
Hillary GOODRIDGE & others [FN1] vs.
DEPARTMENT OF PUBLIC HEALTH & another.
[FN2]
SJC-08860
March 4, 2003. - November 18, 2003.
Present: Marshall, C.J., Greaney, Ireland, Spina,
Cowin, Sosman, & Cordy, JJ.
License. Marriage. Statute, Construction.
Constitutional Law, Police power, Equal protection of laws. Due
Process of Law, Marriage. Words, "Marriage."
Civil
action commenced in the Superior Court Department on April 11,
2001.
The case was heard by Thomas E. Connolly, J., on
motions for summary judgment.
The Supreme
Judicial Court granted an application for direct appellate
review.
Mary Lisa Bonauto (Gary D. Buseck with her)
for Hillary Goodridge.
Judith S. Yogman, Assistant Attorney
General, for Department of Public Health.
The following submitted
briefs for amici curiae:
Joseph P.J. Vrabel, Mark D. Mason,
& Martin W. Healy for Massachusetts Bar
Association.
Leslie Cooper & James D. Esseks, of New
York, Jon W. Davidson & Shannon Minter, of California,
Elliot M. Mincberg & Judith E. Schaeffer, of the District of
Columbia, & John Reinstein, Sarah R. Wunsch, Paul Holtzman, &
Hugh Dun Rappaport for Urban League of Eastern Massachusetts &
others.
Paul Benjamin Linton, of Illinois, & Thomas
M. Harvey for Robert J. Araujo & others.
Dwight G.
Duncan for Massachusetts Family Institute, Inc., &
others.
Glen Lavy, of Arizona, Stephen
W. Reed, of California, & Bertin C. Emmons for National
Association for Research and Therapy of Homosexuality, Inc., &
others.
Robert W. Ash & Vincent P. McCarthy, of
Connecticut, & Philip E. Cleary for The Common Good Foundation
& others.
Don Stenberg, Attorney General of Nebraska,
Mark L. Shurtleff, Attorney General of Utah, Brent A.
Burnett, Assistant Attorney General of Utah, & Mark
Barnett, Attorney General of South Dakota, for the State of Utah &
others.
Chester Darling & Michael Williams for
Massachusetts Citizens Alliance & another.
Daniel Avila
for The Catholic Action League of Massachusetts.
Joshua K.
Baker, of California, & Robert G. Caprera for José Martín
de Agar & others.
Wendy J. Herdlein, of California,
& James R. Knudsen for the Honorable Philip Travis &
others.
Steven W. Fitschen, of Virginia,
for The National Legal Foundation.
Jeffrey A. Shafer & David
R. Langdon, of Ohio, William C. Duncan, of Utah, & Wendy
J. Herdlein, of California, for Marriage Law Project.
Lisa
Rae, Kenneth Elmore, Arthur Berney, & Josephine Ross for The
Religious Coalition for the Freedom to Marry & others.
Ann
DiMaria for The Ethics & Religious Liberty Commission &
others.
Anthony Mirenda, Vickie L. Henry, Lucy Fowler, John M.
Granberry, Rachel N. Lessem, & Gabriel M. Helmer for Robert F.
Williams & others.
Kenneth J. Parsigian for Peter W.
Bardaglio & others. David Cruz, of New York, John Taylor
Williams, Carol V. Rose, Debra Squires-Lee, Christopher Morrison, &
Marni Goldstein Caputo for William E. Adams &
others.
Martin J. Newhouse & Katharine Bolland for
Coalition gaie et lesbienne du Québec & others.
Joseph
Ureneck, pro se.
Teresa S. Collett,
of Texas, & Luke Stanton for Free Market
Foundation.
Peter F. Zupcofska, L. Tracee Whitley, Heidi A.
Nadel, & Corin R. Swift for Boston Bar Association &
another.
Mary Jo Johnson, Jonathan A. Shapiro, & Amy L.
Nash for The Massachusetts Psychiatric Society &
others.
Tony R. Maida, Nina Joan Kimball, & Justine H.
Brousseau for Libby Adler & others.
Daryl J. Lapp, Kevin
D. Batt, & Katharine Silbaugh for Monroe Inker &
another.
David Zwiebel, Mordechai Biser, & Nathan J.
Diament, of New York, & Abba Cohen, of the District of
Columbia, for Agudath Israel of America & others.
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, 123 S.Ct. 2472, 2480 (2003)
(Lawrence ), quoting Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 850 (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. [FN3] 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.
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 David 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 "enforce[s] 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. [FN4], [FN5] 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. [FN6]
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 [p]laintiff 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. [FN7],
[FN8]
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. [FN9], [FN10]
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 (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 (1934). The
everyday meaning of "marriage" is "[t]he 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 (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. [FN11]
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 (1996) (noting
convergence of due process and equal protection principles in cases
concerning parent-child relationships); Perez v. Sharp, 32 Cal.2d
711, 728 (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
(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 (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 "[i]n 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
(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 (1898) (on marriage, the parties "assume[ ]
new relations to each other and to the State"). See also French v.
McAnarney, 290 Mass. 544, 546 (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 (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 (1960). [FN12] See
Commonwealth v. Alger, 7 Cush. 53, 85 (1851).
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 (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. [FN13] See Leduc v. Commonwealth,
421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (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 (1998). See Collins v. Guggenheim,
417 Mass. 615, 618 (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 (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 (1977) (unmarried partners not entitled
to rights of separate support or alimony). See generally Attorney
Gen. v. Desilets, 418 Mass. 316, 327-328 & nn. 10, 11
(1994).
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 (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
(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
(2003); Woodward v. Commissioner of Social Sec., 435 Mass. 536, 546
(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 (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 (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 (1993) (identifying
marriage as a "civil right[ ]"); Baker v. State, 170 Vt. 194, 242
(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 (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").
[FN14]
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
(1948) ("There can be no prohibition of marriage except for an important
social objective and reasonable means"). [FN15]
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 (1983) (marriage);
Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (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 (1998);
Collins v. Guggenheim, 417 Mass. 615, 618 (1994); Feliciano v.
Rosemar Silver Co., 401 Mass. 141, 142 (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 (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 (1967). [FN16] 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. [FN17]
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 (1997); Corning Glass Works v.
Ann & Hope, Inc. of Danvers, 363 Mass. 409, 416 (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 (1995). [FN18]
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
(1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (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 (1992); Zablocki v.
Redhail, 434 U.S. 374, 384 (1978); Roe v. Wade, 410 U.S. 113,
152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (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 (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 (1974). [FN19] 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 (1992). See, e.g.,
Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763,
778 (2002) (equal protection); Coffee-Rich, Inc. v. Commissioner
of Pub. Health, 348 Mass. 414, 422 (1965) (due process). Any law
failing to satisfy the basic standards of rationality is void.
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 (1980).
For all other statutes, we employ the " 'rational basis' test." English
v. New England Med. Ctr., 405 Mass. 423, 428 (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
(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 (1985) (Stevens, J.,
concurring). [FN20]
The department argues that no fundamental right
or "suspect" class is at issue here, [FN21] 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.
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 (1891) ("The consummation
of a marriage by coition is not necessary to its validity"). [FN22] 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.
[FN23]
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. [FN24] 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.
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 (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. [FN25]
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 (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 (2002), cert. denied, 537 U.S. 1189
(2003) (same); E.N.O. v. L.M.M., 429 Mass. 824, cert.
denied, 528 U.S. 1005 (1999) (de facto parent); Youmans v. Ramos,
429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass.
205 (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 (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 (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 & 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 Deaconness
Med. Ctr., 435 Mass. 285, 292 (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). [FN26]
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. [FN27] 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.
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. [FN28] 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. [FN29]
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. [FN30] 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.
[FN31]
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 (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 (1987); Loving v. Virginia, 388 U.S. 1 (1967); Perez v.
Sharp, 32 Cal.2d 711 (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 (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 (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. [FN32] Marriage has survived all
of these transformations, and we have no doubt that marriage will continue
to be a vibrant and revered institution.
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 (1974) (decriminalization
of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct.
499, 503 (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. [FN33] "The Constitution cannot
control such prejudices but neither can it tolerate them. Private biases
may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433
(1984) (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.
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 (1981); Dalli v. Board of
Educ., 358 Mass. 753, 759 (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. [FN34] 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, 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 (1987) (reforming the
common-law rule of construction of "issue"); Lewis v. Lewis, 370
Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal
immunity).
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 (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 (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 (1978) ("the right to marry is of fundamental importance for all
individuals"); Loving v. Virginia, 388 U.S. 1, 12 (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 (1942) (marriage
is one of "basic civil rights of man"). See also Turner v. Safley,
482 U.S. 78, 95-96 (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"). [FN1]
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 (1993) (plurality
opinion) (Hawaii marriage statutes created sex-based classification);
Baker v. State, 170 Vt. 194, 253 (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. [FN2]
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 (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 further by the statutes
that can be accomplished in no other reasonable manner. [FN3] See Blixt
v. Blixt, 437 Mass. 649, 655-656 (2002), cert. denied, 537 U.S. 1189
(2003); Lowell v. Kowalski, 380 Mass. 663, 667-669 (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.
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, cert. denied, 528 U.S. 1005 (1999); Adoption of Tammy, 416
Mass. 205, 210-211 (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 (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 (1982). [FN4]
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. [FN5] 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 (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, 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 (1992) ( "Our obligation is to define the
liberty of all, not to mandate our own moral code").
(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 (1965). Because of the terms of art. 1,
the plaintiffs will no longer be excluded from that association.
[FN6]
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. [FN1] The power to regulate marriage
lies with the Legislature, not with the judiciary. See Commonwealth v.
Stowell, 389 Mass. 171, 175 (1983). Today, the court has transformed
its role as protector of individual rights into the role of creator of
rights, and I respectfully dissent.
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. [FN2] 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 (1979). See also
United States v. Virginia, 518 U.S. 515 (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 (1977) (law prohibiting prostitution not discriminatory based on
gender because of equal application to men and women).
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 (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 (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, [FN3] 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 (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 (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.
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
(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 (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 (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
(1999). When analyzing a claim that the State has impermissibly burdened
an individual's fundamental or other right or liberty interest, "[w]e
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 (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 (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 (1997),
quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (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
(1983) (O'Connor, J., dissenting), cert. denied sub nom. Keefe v.
Massachusetts, 465 U.S. 1068 (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 & 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 (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 (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 (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 (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 (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
(1997) (receiving workers' compensation benefits not fundamental right);
Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129
(1995) (declaring education not fundamental right); Williams v.
Secretary of the Executive Office of Human Servs., 414 Mass. 551, 565
(1993) (no fundamental right to receive mental health services); Matter
of Tocci, 413 Mass. 542, 548 n. 4 (1992) (no fundamental right to
practice law); Commonwealth v. Henry's Drywall Co., 366 Mass. 539,
542 (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 (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 (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,
123 S.Ct. 2472 (2003) (private nature of sexual behavior implicates
increased due process protection); Eisenstadt v. Baird, 405 U.S.
438 (1972) (privacy protection extended to procreation decisions within
nonmarital context); Griswold v. Connecticut, 381 U.S. 479 (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. [FN1] 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
(2002) (Sosman, J., dissenting), cert. denied, 537 U.S. 1189 (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.
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"); ante at ("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
"impose[s] limits on personal beliefs"); ante at n. 31] (suggesting
that "total deference" to Legislature in this case would be equivalent to
"strip[ping]" 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");
ante at, (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 abrogate 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 (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 (2002), cert. denied, 537 U.S. 1189 (2003) (fundamental right);
Lowell v. Kowalski, 380 Mass. 663, 666 (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 (1986), quoting Paro v. Longwood
Hosp., 373 Mass. 645, 649 (1977). This test, referred to in State and
Federal constitutional jurisprudence as the "rational basis test," [FN1]
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 (1985) (applying rational basis review to question of
State exercise of police power).
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 of "marry." [FN2]
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 (1987); Zablocki v. Redhail, 434 U.S. 374
(1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v.
Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S.
535 (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. [FN3] An examination of
those interests reveals that they are either not shared by same-sex
couples or not implicated by the marriage
statutes.
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. [FN4] 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 "[m]arriage 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 (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." Id. 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.
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 (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 (1978), or to derive "controversial 'new'
rights from the Constitution." Aime v. Commonwealth, 414 Mass. 667,
674 n. 10 (1993).
What the Griswold Court
found "repulsive to the notions of privacy surrounding the marriage
relationship" was the prospect of "allow[ing] 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 (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
relations[hip]," Griswold v. Connecticut, supra at 495 (Goldberg,
J., concurring), he was obviously referring to sexual relations. [FN5]
Similarly, in Lawrence v. Texas, 123 S.Ct. 2472 (2003), it was the
criminalization of private sexual behavior that the Court found violative
of the petitioners' liberty interest.
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 (1982) (see Opinion of the Justices,
423 Mass. 1201, 1234-1235 [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 (1990); or
whether or not to accept medical treatment, see Brophy v. New England
Sinai Hosp., Inc., 398 Mass. 417, 430 (1986); Superintendent of
Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 742 (1977),
none of which is at issue here. See also Commonwealth v. Balthazar,
366 Mass. 298, 301 (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 (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. [FN6] 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.
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 (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 (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 (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
(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 (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 (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 (1980),
such status has never been recognized as a fundamental right. See Paul
v. Davis, 424 U.S. 693, 701 (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 (1923); Pierce v. Society of
Sisters, 268 U.S. 510, 534-535 (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 (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 [FN7] 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. [FN8] 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 (1997).
"[T]o
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 (1937). See Dutil, petitioner,
437 Mass. 9, 13 (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.
[FN9]
Applying this limiting principle, the Supreme Court, as noted
above, declined to recognize a fundamental right to physician-assisted
suicide, which would have required "revers[ing] centuries of legal
doctrine and practice, and strik [ing] 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. [FN10] 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 (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 (2002)
("social consensus about family relationships is relevant to the
constitutional limits on State intervention").
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, "[t]he 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 (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 (1976), quoting
Leland v. Oregon, 343 U.S. 790, 798 (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
(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 (2002), quoting Penry v. Lynaugh,
492 U.S. 302, 331 (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 (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 (1971), appeal dismissed, 409 U.S. 810
(1972); Storrs v. Holcomb, 168 Misc.2d 898, 899-900
(N.Y.Sup.Ct.1996), dismissed, 245 A.D.2d 943 (N.Y.1997). [FN11]. The one
exception was the Alaska Superior Court, which relied on that State's
Constitution's express and broadly construed right to privacy.
Brause, 1998 WL 88743 at *3-*4. [FN12] 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.
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). [FN13]
Such a conclusion is analytically unsound and inconsistent with the
legislative history of the ERA.
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 (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 (1999)
("there is no discrete class subject to differential treatment solely on
the basis of sex"). Compare Commonwealth v. King, 374 Mass. 5, 16
(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 (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 (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 (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. [FN14]
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. [FN15]
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. [FN16]
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 "[t]hose 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 (1977). The statute
"only need[s to] be supported by a conceivable rational basis." Fine v.
Contributory Retirement Appeal Bd., 401 Mass. 639, 641 (1988). See
Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763,
771-772 (2002). As this court stated in Shell Oil
Co. v. Revere, 383 Mass. 682, 687-688 (1981):
"[I]t is not the
court's function to launch an inquiry to resolve a debate which has
already been settled in the legislative forum. '[I]t [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 (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 (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 (1996), cert.
denied, 520 U.S. 1131 (1997), quoting Commonwealth v. A Juvenile,
368 Mass. 580, 595 (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. [FN17] 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.
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 (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 (1942) ("Marriage and
procreation are fundamental to the very existence and survival of the
[human] race"); Maynard v. Hill, 125 U.S. 190,
211 (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
(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 (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, [FN18] the range of
responsibilities required of it as an institution, [FN19] and the legal
environment in which it exists. [FN20] 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).
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.
[FN21]
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.
[FN22]
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 (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 (1939) ("any rational basis of
fact that can be reasonably conceived" may support legislative finding);
Mutual Loan Co. v. Martell, 200 Mass. 482, 487 (1909), aff'd, 222
U.S. 225 (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 [FN23]; (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, [FN24]
and scholarly commentary contending that children and families develop
best when mothers and fathers are partners in their parenting [FN25]; 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 [FN26]; support the proposition
that children of same-sex couples fare worse on some measures [FN27]; or
reveal notable differences between the two groups of children that warrant
further study. [FN28]
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,
[FN29] 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).
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, [FN30] 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 (1999)
("conceivable that the Legislature could conclude that opposite-sex
partners offer advantages in th[e] area [of child rearing], although ...
experts disagree and the answer is decidedly uncertain"). Cf. Marcoux
v. Attorney Gen., 375 Mass. 63, 65 (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. [FN31]
The fact that the
Commonwealth currently allows same-sex couples to adopt, see Adoption
of Tammy, 416 Mass. 205 (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.
[FN32] 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. [FN33] 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.
[FN34]
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 (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. [FN35] 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. [FN36] Hall-Omar Baking Co. v. Commissioner
of Labor & Indus., 344 Mass. 695, 700 (1962) ("Legislative
classification is valid if it is rational and bears
some relationship to the object intended to be accomplished"
[emphasis added] ).
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. [FN37]
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. [FN38]
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. [FN39] 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 (2002); Mobil Oil v. Attorney
Gen., 361 Mass. 401, 417 (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 (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 Wash.App. 247, 262-263
(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").
D. Conclusion. While
"the Massachusetts Constitution protects matters of personal liberty
against government intrusion at least 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.
1. Julie Goodridge, David Wilson,
Robert Compton, Michael Horgan, Edward Balmelli, Maureen Brodoff, Ellen
Wade, Gary Chalmers, Richard Linnell, Heidi Norton, Gina Smith, Gloria
Bailey, and Linda Davies.
2. Commissioner of Public
Health.
3. 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
(1993); Baker v. State, 170 Vt. 194, 242 (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 (1982); Jones v.
Hallahan, 501 S.W.2d 588 (Ky.Ct.App.1973); Baker v. Nelson, 291
Minn. 310 (1971), appeal dismissed, 409 U.S. 810 (1972); Singer v.
Hara, 11 Wash.App. 247 (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).
4. 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.
5. 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.
6. 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."
7. 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: "[N]o 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."
8. 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.
9. 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.
10.
"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 [c]ommissioner's copy,
signed by the [c]ommissioner or the [r]egistar, is admissible as evidence
of the record." Secretary of the Commonwealth v. City Clerk of
Lowell, 373 Mass. 178, 181-182 (1977).
11. 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 (1993).
12. "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 (1955).
13. 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).
14. 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. 376, 383 (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.
15. 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 (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 (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 (2000), quoting Moore v.
East Cleveland, 431 U.S. 494, 499 (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.
16. 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 (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
(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 State's
antimiscegenation statute to violate 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.
17. 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").
18. 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 (1989) (freedom from intrusive drug testing in highly regulated
industry); Cepulonis v. Secretary of the Commonwealth, 389 Mass.
930 (1983) (inmates' right to register to vote); Batchelder v. Allied
Stores Int'l, Inc., 388 Mass. 83 (1983) (freedom to solicit signatures
for ballot access in public election); Moe v. Secretary of Admin. &
Fin., 382 Mass. 629 (1981) (right to State
Medicaid payment for medically necessary abortions); Coffee-Rich,
Inc. v. Commissioner of Pub. Health, 348 Mass. 414 (1965)
(freedom to pursue one's lawful business).
19. 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 (1971),
quoting Jones v. Robbins, 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").
20. 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 (1993), citing Mathews v. Lucas, 427
U.S. 495, 510 (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 (1993) (fee
imposed on retention of counsel in administrative proceedings);
Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass.
178, 186 (1977) (selection of surname for nonmarital child); Aetna Cas.
& Sur. Co. v. Commissioner of Ins., 358 Mass. 272, 280- 281
(1970) (automobile insurance ratesetting); Coffee-Rich, Inc. v.
Commissioner of Pub. Health, 348 Mass. 414, 422 (1965) (sale of
wholesome product); Mansfield Beauty Academy, Inc. v. Board of
Registration of Hairdressers, 326 Mass. 624, 627 (1951) (right to
charge for materials furnished to models by trade school); Opinion of
the Justices, 322 Mass. 755, 760-761 (1948) (proposed statute
concerning regulating cemeteries); Boston Elevated Ry. v.
Commonwealth, 310 Mass. 528, 556-557 (1942) (legislation impairing
contract right); Durgin v. Minot, 203 Mass. 26, 28 (1909) (statute
authorizing certain board of health regulations).
21. 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.
22. 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
(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 (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 (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.
23. 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 (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).
24.
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 (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 (2002)
(posthumous reproduction); Culliton v. Beth Israel Deaconness Med.
Ctr., 435 Mass. 285, 293 (2001) (gestational surrogacy).
25. 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.
26. 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.
27. 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.
28. Justice Cordy suggests
that we have "transmuted the 'right' to marry into the 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. Post at (Cordy, J.,
dissenting). 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.
29. 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.
30. 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 (1909), aff'd, 222 U.S. 225 (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 (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
(2002).
31. 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
(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 (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).
32. 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.
33. 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 (1977) (nonmarital children); Angelini v. OMD
Corp., 410 Mass. 653, 662, 663 (1987) ("The traditional common law
rules which discriminated against children born out of wedlock have been
discarded" and "[w]e 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 (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 (1979), quoting Walz v. Tax Comm'n of the City of
N.Y., 397 U.S. 664, 678 (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
(1946) (constitutional contours of State's regulatory authority
coextensive "with the changing needs of society").
34. 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 polygamous 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 (1979)
(construing word "father" in unconstitutional, underinclusive provision to
mean "parent"); Browne's Case, 322 Mass. 429, 430 (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").
1. 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 (1981).
2. In her separate opinion in Baker v.
State, 170 Vt. 194, 253 (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."
3. 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 (2002), cert. denied, 537 U.S. 1189 (2003) (concluding G.L. c. 119, § 39D,
grandparent visitation statute, furthered compelling State interest in
mitigating potential harm to children in nonintact families).
4.
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.
5. 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.
6. 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.
1. 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."
2. 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."
3. Marriage
is the civil union between a single man and a single woman. See Milford
v. Worcester, 7 Mass. 48, 52 (1810).
1. 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).
1. 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 (1999).
2. 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.
3. 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.
4. For example, see G.L. c. 272, §§ 14 and 18, the
Massachusetts adultery and fornication statutes.
5. While the facts
of Griswold v. Connecticut, 381 U.S. 479 (1965), involved a married
couple, later decisions clarify that its holding was not premised on the
marriage relationship. See Carey v. Populations Servs. Int'l, 431
U.S. 678, 687 (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 (1972) (same).
6. Contrast
Lawrence v. Texas, 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.
7.
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 (1978).
8. Tobin's Case, 424 Mass. 250, 252-253 (1997)
(no fundamental right to receive workers' compensation benefits); Doe
v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129 (1995) (no
fundamental right to education); Williams v. Secretary of the Executive
Office of Human Servs., 414 Mass. 551, 565 (1993) (no fundamental
right to receive mental health services); Matter of Tocci, 413
Mass. 542, 548 n. 4 (1992) (no fundamental right to practice law);
Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 269 n. 5
(1992) (no fundamental right to operate motor vehicle); English v. New
England Med. Ctr., Inc., 405 Mass. 423, 429 (1989), cert. denied, 493
U.S. 1056 (1990) (no fundamental right to recover tort damages);
Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974) (no
fundamental right to pursue one's business). Cf. Aime v.
Commonwealth, 414 Mass. 667, 674 n. 10 (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, cert.
denied, 525 U.S. 1040 (1998), quoting DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189, 203 (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 ...").
9. See
Michael H. v. Gerald D., 491 U.S. 110, 122-123 & n. 3,
127 (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 (1965) (Harlan, J., concurring)
(same).
10. Compare Curtis v. School Comm. of Falmouth, 420
Mass. 749, 756 (1995), cert. denied, 516 U.S. 1067 (1996), quoting
Wisconsin v. Yoder, 406 U.S. 205, 232 (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 (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 (1981) (characterizing decision whether to
bear a child as "hold[ing] 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 (1995), quoting
Medina v. California, 505 U.S. 437, 445 (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 (1983), cert. denied sub
nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984) (declining to
find fundamental right to child-parent privilege where "[n]either 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 (1983), quoting Roe v. Wade, 410 U.S. 113, 152 (1973)
(declining to recognize right not "implicit in the concept of ordered
liberty").
11. 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.
12.
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 (1993); Baker v.
Nelson, 291 Minn. 310, 312-314 (1971); Storrs v. Holcomb, 168
Misc.2d 898, 899-900 (N.Y.Sup.Ct.1996), dismissed, 245 A.D.2d 943
(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).
13. Article 106 is referred to as
the Equal Rights Amendment.
14. Justice Greaney views Loving v.
Virginia, 388 U.S. 1 (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.
15. The commission
was composed of five State representatives, three State senators and three
gubernatorial appointees. All of the gubernatorial appointees were
attorneys.
16. The Washington case cited by the commission was
Singer v. Hara, 11 Wash.App. 247 (1974).
17. Modern DNA
testing may reveal actual paternity, but it establishes only a genetic
relationship between father and child.
18. 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.
19. 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.
20.
No-fault divorce has made the dissolution of marriage much easier than
ever before.
21. "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.
22. In support of its conclusion that the
marriage statute does not satisfy the rational basis test, the court
emphasizes that "[t]he 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.
23.
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).
24. 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).
25. 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) ("[s]tatistics
continue to show that the most stable family for children to grow up in is
that consisting of a father and a mother").
26. 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).
27.
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).
28. 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 the impact of divorce and remarriage on children should focus
on "nontraditional" stepfamilies, particularly same-sex couples with
children, because the impact of such arrangements have been overlooked in
other studies).
29. 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 (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.
30. 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.
31. The same could be true of any
other potentially promising but recent innovation in the relationships of
persons raising children.
32. 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.
33. 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 (2002), cert. denied, 537 U.S. 1189 (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.
34. 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.
35. 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 (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.
36. 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 (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.
37.
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).
38. "[T]he State retains wide latitude to
decide the manner in which it will allocate benefits." Moe v. Secretary
of Admin. & Fin., 382 Mass. 629, 652 (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 (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").
39.
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.
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