Talk:Same-sex marriage in Massachusetts/Archive 1

Ancient discussions
Shouldn't this be at Same-sex marriage in the United States? Dysprosia 23:10, 17 May 2004 (UTC)

This doesn't seem to have been updated lately; is there no further data since the first group went through? Radagast 20:11, Dec 1, 2004 (UTC)

(In reference to first paragraph) Wasn't Hawaii the first state to legalize gay marriage? Psy Guy 17:43, 29 July 2005 (UTC)

Since 2004, Massachusetts has updated its laws to eliminate the three day waiting period for marriage licenses. Info lover 21:11, 12 October 2005 (UTC)

Recognition of foreign same-sex marriages?
Does Massachusetts recognize marriages of same-sex couples performed in other jurisdictions - most notably Canada, but also the Netherlands, etc? Has this issue come up yet? --thirty-seven 06:15, 20 May 2006 (UTC)


 * I haven't heard of any cases, but the Massachusetts Supreme Judicial Court was emphatic that any difference in treatment of same-sex couples vs. mixed sex couples would be unconstitutional, so it's hard to imagine that those marriages would not be recognized in Massachusetts at this time. A perhaps more interesting question is what the status of such marriages would be in other U.S. states, particularly those that have not passed anti-gay marriage legislation, and in the E.U. Are their any treaties in force on reciprocal recognition of marriages, etc.?--agr 19:46, 23 May 2006 (UTC)

Recognition of civil unions/domestic partnerships elsewhere?
Has any precedent been set in Mass. as to how couples who have entered into civil unions in Vermont/Connecticut or Domestic Partnerships in California (all of which have the same privledges and responsibilities as marriage in the eyes of those states) are treated if they move or travel to Mass.? Would a Vermont couple who had been "unionized" need to have a marraige ceremony in Massachusetts to get marriage benefits? Conversely, would a married same-sex couple from Mass. be automatically partnered/unionized in those other states? --Jfruh (talk) 20:15, 3 June 2006 (UTC)

Update
I think there should be a section about Massachusetts challenging DOMA in Federal Court. —Preceding unsigned comment added by 68.43.19.251 (talk) 01:43, 4 August 2009 (UTC)

I changed the lead to actually explain how gay marriage became legal in Mass. The old article just assumed people already knew. I also standardized the references and clarified the Feb. 4 timeline entry to better address the ultimate relevant issue (it's also a simpler interpretation). Apparently, the article was wrong about the first married couple, so I'm changing that too (with a source of course). I've brought the timeline up to date (as far as I could tell) as well. Superm401 - Talk 01:07, 6 June 2006 (UTC)

This description is entirely inaccurate. Gay marriage did NOT become legal in the manner described. The court specified that the original marriage law banned homosexuals from marrying, but the court did not strike the law, nor did they write in Goodridge that the decision was self-enacting in 180 days. Rather the Supreme Judicial Court gave the Massachusetts Legislature 180 days in which to act following its November 18, 2003 ruling. The Legislature did NOT act. Gay marriages began in MA as the result of an order by Gov. Mitt Romney.

The description is accurate. In Goodrich the court stated that the Commonwealth had "failed to identify any constitutionally adequate reason," why gays should not marry. It also stated that Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." The court stayed the entry of its judgement 180 days to allow the legislatue to rectify the situation. Your suggestion that it was "assumed" that the legislature would act to change the marriage laws is wrong. Since it was ruled that it is "unconstitutional" to ban gays the right to marry, the only way to change this scenario is with a constitutional amendment. Constituional amendments must be approved in two consecutive "Constituional Conventions" in Massachusetts before they are voted on by the people. The earliest an ammendment could have gone on the ballot would have been in 2006. Given this time table, it was not possible for the legislature to address the issue in the 180 day time period, even if they wanted to (The general court is realtively liberal and the majority of its members approve of same sex marriage). The Court knew this to be the case. Since the legislature could not act, gay marraige became legal once the 180 day stay of the SJC judgement expired. At that point it would be unconstitional for the Commonwealh to deny same sex partners a marriage license because of the court's ruling, not because of Romney's actions to comply with the court's ruling (read language above).--EnsignSOS 16:31, 25 November 2006 (UTC)

Sorry dude, the description in wikipedia right now IS inaccurate. The Massachusetts Constitution, which gives the court the right to exist in the first place is very clear in Article X saying, "The people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." That means the court cannot legislate from the bench as EnsignSOS is suggesting they can. The separation of powers provisions of the Constitution specifically BAN the court from making or changing laws--that's why it's the purview of the Legislature. Is Wikipedia now rewriting how democracy works? Re-read Goodridge and the Constitution--the court specifically said in Goodridge they were NOT striking the law. That previous law is still on the books. If you're not convinced, then read the following:

1) Immediately after the Goodridge decision, on November 18, 2003, the Globe, Fox News, and other publications reported that the legislature had six months to change the law to allow gay couples to marry.

"Attorney Mary Bonauto, who represented the seven gay couples who sued the state, said the only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period."

http://www.foxnews.com/story/0,2933,103399,00.html

http://www.cnn.com/2003/LAW/11/18/samesex.marriage.ruling/

2) By April 16, 2004, nothing had happened and Governor Romney publicly agreed there were no laws in place on, as did a senior leader of the Massachusetts Senate. http://www.boston.com/news/local/articles/2004/04/16/romney_seeks_authority_to_delay_same_sex_marriage/

But Romney said the court's ruling, and the possibility that voters will overturn it in 2006, raise several legal questions that make the situation extremely confusing. He placed the blame for the confusion on the Legislature, which has yet to follow a directive from the SJC to change the state's marriage laws to reflect the legalization of same-sex matrimony.

"I believe the reason that the court gave 180 days to the Legislature [following its ruling] was to allow the Legislature the chance to look through all of the laws developed over the centuries and see how they should be adjusted or clarified for purposes of same-sex marriage; the Legislature didn't do that," Romney said.

Senator Bruce E. Tarr, Republican of Gloucester, said he believes the Legislature will ultimately pass bills that will insert gender neutral language into the state's marriage laws in time for the May 17 deadline.

"No one should interpret inaction thus far with the idea that no action is forthcoming," he said

3) Nothing happened by May of 2004. No laws were changed. Except Governor Romney ordered the town clerks to start issuing marriage licenses anyway. Look at the training provided to town clerks by Romney's Chief Legal Counsel Daniel Winslow, which includes the following: http://www.article8.org/ssm_training.pdf

-Slide 3 says that the Legislature has not made any changes to statutory laws to facilitate Goodridge -Slide 4 says that the SJC did not change the marriage statutes in c46 and 207 -Slide 5 says that there's not been any constitutional amendment. -Slide 6 says clerks should be ready to implement the "new law" on May 17.

What new law? There was none.

I think Wikipedia intends to be like an encylopedia, namely, conveying factually accurate information, as best as that can be ascertained. It takes less than a minute to read the Massachusetts Constitution to see that the court in Massachusetts does not have the authority to change a law, and thus the Wikipedia entry is inaccurate.

http://www.mass.gov/legis/const.htm Article XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for/

Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

What is the process for having the entry changed?

I concur with the edits of EnsignSOS. Your legal intrpretation is wrong. The Court did not create new laws, they INTREPRETED existing laws. Accoriding to the court the state never had the right to deny same sex couples marriage licenses. The state was always acting illegally. I read the sources you provided. They actually do not support your legal interpretation. They prove that it was the actions of the court that created gay marrige. Not Romney or the legislature. Your position is wrong. You may view this from one perspective, but wikipedia is not for viewpoints.--PhotographerLens 20:18, 26 November 2006 (UTC)

PhotographerLens, what I wrote is not a viewpoint--it's factually correct. I agree the court INTERPRETED the existing law and said that statute (MA General Law 207) denied same-sex couples the right to marry, and the state did not have the right to deny same-sex couples marriage licenses. But the Goodridge decision itself and the sources I shared state clearly that the court did NOT strike down the existing law. The law Goodridge ruled on--which bans homosexuals from marrying--is still in place. When the SJC in Goodridge, Mary Bonauto (representing GLAD), Gov. Romney, and a senior state senator all said the only thing that needed to happen was that the Legislature needed to change the law, why basis do YOU have for saying the change was self-enacting? What citation in the MA constitution to you have for your interpretation? For you to be correct, you would need to believe the court either changed a law they explicitly said they were not changing (and changing a law would be unconstitutional anyway), or they would have struck down a law they explicitly said they were not striking down. If they felt they had authority to strike or change the law, then why did they give the legislature 180 days to act? Why didn't they just change things right on the spot? It is because the constitution banned them from doing this.

Furthermore, as explained on a constitutional law blog sponsored by the Globe at Boston.com on May 14, 2004, three days before the "marriages" began (Scroll 2/3 of the way down the page to the May 14 entry), the failure of the legislature to act and change the statues did not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed:

"The authority of town clerks to issue and file marriage licenses and of the Department of Health to create procedures relative to marriage flows directly from the Massachusetts statutes cited in Goodridge. Therefore, when the Court found that those statutes did not permit same- sex marriages, the Court effectively denied town clerks and Department of Health officials the ability to confer marriage upon same-sex unions until the legislature takes further action.

"Principles of our democratic republic demand that law be created by duly elected representatives. Those in the executive branch or in subordinate agencies--for example, town clerks--are not permitted to create law on an ad hoc basis. When, as has happened in Massachusetts, a state's highest court allows time for a legislature to change current statutes, procrastination on the part of the legislature does not empower those responsible for implementing existing law to proceed as if the statutes had been duly changed. Simply put, state officials may not implement a legislative scheme that does not yet exist. Yet, if the train keeps moving, that is exactly what will happen in Massachusetts on May 17. Town clerks, magistrate judges, and the entire executive branch are all gearing up for same-sex marriage. If the people of Massachusetts value their democratic principles, they will consider again the significance of May 17. Aside from an entry of the Court's judgment declaring that the lack of provision in the law for same-sex marriage is unconstitutional, nothing more will result. There will be no provision for valid same-sex marriages.

"Importantly, the Goodridge Court could have written its opinion so that legislative action was not a prerequisite for same-sex marriage. The Court could have construed Massachusetts law as currently written to provide for same-sex marriage. Alternatively, the Court could have created a form of common law marriage that included same-sex unions. Either would have had the immediate effect of creating same-same marriage in Massachusetts. For obvious reasons, however, the Court chose to do neither. Radical changes to law should involve, to the greatest degree possible, the cooperation of all of the co-equal branches. Without delving into the Court's claim that the world's oldest functioning constitution suddenly now requires same-sex marriage, it is to the Court's credit that it crafted an opinion mandating legislative action prior to same-sex marriage arriving in Massachusetts.

"It is unfortunate that Governor Romney and others are undermining the democratic process by refusing to recognize this. The result is that Massachusetts may shortly have hundreds or even thousands of "married" couples of dubious status. If, in due course, the rule of law is honored, these marriages will be invalid for lack of enabling legislation"

What I have described is not a viewpoint--it is factual. Rather, the perspective conveyed in Wikipedia right now is a viewpoint--that the court "legalized" same-sex marriage.

I thought I'd enter the fray. Now I'm not sure if this was said anywhere else, so my apologies if I'm repeating what is already common knowledge. It is my understanding that Goodridge ruled that denying same-sex couples the right to marry violated the Mass. Constitution (more specifically, the sections which guarantee the equal treatment of all Mass. citizens). As such, any law which encroached upon those rights was nullified as it would be unconstitutional after the decision. If people want citations to this, let me know and I'll find them. If this has already been answered and dealt with, hooray, I don't need to go souring the web to find them!Ronnotronald 14:19, 14 February 2007 (UTC)

Thanks, and question
Excellent article, exactly what I was looking for, the "how it became legal and how it works".

I have a question though, possibly for a new section. What are the "practical implications" for a couple who are married in this state, and who either travel, work or relocate out of state? That's quite important to cover.

FT2 (Talk 21:24, 23 July 2006 (UTC)


 * The Defense of Marriage Act (which some feel is unconstitutional) allows states not to recgonize same-sex marriages from other states and, according to that article, "Forty states have enacted laws denying the recognition of same-sex marriages, ... Six states currently have established laws recognizing some form of same-sex unions, and twelve states ban any recognition of same-sex unions including civil unions." The Full Faith and Credit Clause of the United States Constitution would be a strong argument for those few states that do allow some form of same-sex unions to recognize those established in other states. I am not a lawyer and I am not aware of any cases so far. --agr 03:21, 24 July 2006 (UTC)

Article 48, section 4, subsection 4 of the Massachusetts Constitution
"Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays"

Any constitutional scholars out there? Is this section of the Massachusetts constitution saying the legislature must vote “yea” or “nay” or it is saying that any vote taken on the initiative must be in the form of a “yea” or “nay” voice vote rather than another type of voting such as ballot, show of hands, rising or modern electronic means of voting? This type of specific requirement for voting procedures or form does seem to be relatively common in parliamentary procedures and the phrasing of the section seems to, if not imply, then leave the door open to this. I couldn’t find any recourses relating directly to this question and would appreciate any feedback.

2008 or 2010?
Regarding the point brought up as to when a proposed amendment, if approved by the legislature a second time, would go to the people for a vote, I wanted to make a clarification.

The link which was provided makes no mention of why a vote would be put on a particular election year's ballot and the sentence itself is vague. I found an article which states the actual reason. According to the article, if the legislature approves the proposed amendment (thereby putting it on the ballot) *after* the Secretary of the Commonwealth's office prints the ballots for the 2008 election (which generally happens in September of the election year), then the proposed amendment would go to the voters in 2010. Anytime before then, it would go on the 2008 ballot. You can find the link here. Granted, this article is from the gay press, so I could see someone bringing up a question of objectivity. Ultimately though, the fact asserted is pretty straight-forward ond one that isn't subject to the sway of opinions.

If there are no objections, I'll go forward and make the change.Ronnotronald 17:39, 4 April 2007 (UTC)

May/June 2007 happenings
To keep this article timely, perhaps a discussion of [http://www.boston.com/news/local/massachusetts/articles/2007/05/12/coakley_to_fight_for_gay_marriage/ the recent comments made by the Mass. Attorney General] regarding a constitutional challenge to an amendment outlawing same-sex marriage is merited? It makes sense to discuss this in the 'future' section of the article, as it creates yet another wrinkle in determining when the battle over this issue will end.

Also, the Mass. Legislature has decided that June 14, 2007 is the date of the next Constitutional Convention and many people (on both sides of the debate) believe a vote will take place then.

I'd be happy to add these items, just wanted to put it out for discussion first.Ronnotronald 19:33, 29 May 2007 (UTC)

Revision of marriage statute
Has the legislature updated the marriage statute yet? If not, does anyone know if the legislature is doing anything about it this session? -Rrius (talk) 05:26, 23 May 2008 (UTC)

Marriage versus benefits of marriage
(Copied from User talk:Rrius) Would you care to explain your reversion? You write simply "Uh, no" but my edits were perfectly accurate. Carolynparrishfan (talk) 14:47, 5 July 2008 (UTC)


 * Your edit was not accurate. Massachusetts has same-sex marriage; it does not merely provide the benefits of marriage at the state level. That is a civil union. The fact that the federal government does not recognize same-sex marriage is not relevant because it is not responsible for domestic relations law and because it does not recognize civil unions either. If you read the rest of the article, you will see that the legislature asked whether it could simply enact civil unions as Vermont did, or whether the only remedy was to provide for same-sex marriage; the Supreme Judicial Court said it had to be marriage. See Same-sex marriage in Massachusetts at 4 February 2004. As a result, your edit was incorrect. -Rrius (talk) 17:54, 5 July 2008 (UTC)
 * I'm not exactly sure what to make of this. If I worded it somehow incorrectly, I apologize (I am not American). But the fact is that same-sex marriage in Massachusetts is not the same thing as Same-sex marriage in Canada or Same-sex marriage in Spain. Some of the benefits of marriage in the United States are provided by the state, and others (more than one thousand of them) by the federal government. Same-sex couples do not have the latter in any state, not even California or Massachusetts. The article should reflect this. If you want to do it differently than I did, fine, but my edit was certainly more correct than the current version to which you have reverted. Carolynparrishfan (talk) 18:42, 5 July 2008 (UTC)
 * The article should mention the Defense of Marriage Act limitations on benefits, but your edit was not the way to do it. In the United States, state governments create, define, and regulate marriage. This is unlike Canada, Australia, and Germany, where the national governments are responsible for marriage legislation. The US federal government cannot create legislation regulating marriage (it actually could so regulate in Washington, D.C. or territories, but does not). In statutes within its jurisdiction, the federal government can define "spouse" however it wants to, and has traditionally deferred to the relevant state. For instance, to determine if Anne and Brad are married, the federal government would look to the law of the state wherein they reside. The Defense of Marriage Act was a departure from this. It defines marriage for the purposes of federal statutes as between a man and a woman, but that does not mean that Massachusetts and California same-sex couples who marry are any less married than opposite-sex spouses. It just means that spousal benefits and obligations under federal law, such as Social Security survivor benefits, ERISA benefits and obligations, and income tax filing status do not extend to same-sex partners.


 * The difference between that and your edit is that your edit said Massachusetts provides the same state-level benefits of marriage to same-sex couples. That is the description of a civil union or a California-style domestic partnership. The difference is that in Massachusetts and with California marriages, the couples are married: they receive a marriage certificate and are married and divorced under the provisions of the marriage and divorce statutes. While the federal government may not want to recognize their relationships when it comes time to provide benefits or legal protection, those couples are still married. -Rrius (talk) 20:24, 5 July 2008 (UTC)
 * You seem to want it both ways. They don't have the benefits of marriage under federal regulations, but you don't want to say the obvious corollary of that, that they have only the benefits provided by state regulations.


 * "...that does not mean that Massachusetts and California same-sex couples who marry are any less married than opposite-sex spouses. It just means that spousal benefits and obligations under federal law, such as Social Security survivor benefits, ERISA benefits and obligations, and income tax filing status do not extend to same-sex partners."


 * You've just contradicted yourself. If they don't have those benefits, then clearly they are "any less married." Of course it should be made clear that married same-sex couples in MA and CA are married and not "civilly united." (I haven't, for what it's worth, said anything about civil unions; you brought those up. And "state benefits of marriage" is not the "description of a civil union." Many forms of civil union scheme exists. If that is the American form, then fine). But that marriage clearly does not entail the same rights and obligations as an opposite-sex marriage. You yourself say as much in parts of your response (even though you contradict yourself in others). Carolynparrishfan (talk) 01:49, 6 July 2008 (UTC)


 * I think the dispute is that you changed "Same-sex marriage in the U.S. state Massachusetts began..." to "The benefits of marriage at the state-level have been available to same sex couples in Massachusetts since..." Semantically, the second sentence implies that same-sex couples aren't married, merely that they receive the state-level rights pertaining to marriage.  This isn't true.  Same-sex couples in Mass. can be married under state law.  It's absolutely true that their marriages aren't legally identical under federal law to opposite-sex marriages, but that doesn't mean that they aren't married, as marriage is a creation of state law.  You could I suppose say that they're "less married", but they're still married.  Obviously the distinction should be made clear in the article, but we shouldn't imply that they aren't married. --Jfruh (talk) 03:36, 6 July 2008 (UTC)


 * I did not contradict myself. The level of benefits provided by the federal government does not affect the extent to which people are married. Federal law does not affect the extent to which someone is or is not in a marital relationship. The federal government can choose to confer rights or protections on married couples, or some of them, but it does not affect the underlying fact of their marital relationship. I can keep saying this in different ways, but I am not sure it will help. In any event, I would suggest you read up on American marriage law before trying to assert that federal benefits in any way affect whether (or to what extent) people are married.


 * As an aside, I don't believe the term "civil union" is used anywhere else. There are civil partnerships, registered partnerships, and others, but in any event, I was referring to American civil unions, which are the only relevant sort here. Those are described as providing the same rights and benefits (on the state level) as marriage. Your edit attempted to minimize the status under Massachusetts law. The opening of your edit could as easily apply to Vermont, New Hampshire, New Jersey, etc. by substituting the name of the state and the year. -Rrius (talk) 09:12, 6 July 2008 (UTC)


 * The new addition is perfect, thanks. --Jfruh (talk) 16:49, 9 July 2008 (UTC)


 * I agree. Since it's in the lead (which is a summary) it should also be in discussed in the body of the article. If no one else does it, I will grab some language from a related article, but not today. -Rrius (talk) 18:46, 9 July 2008 (UTC)

Unclear
Was the ballot initiative voted on? If so, what was the vote? If not, why not? —Preceding unsigned comment added by 74.10.198.121 (talk) 19:05, 22 August 2009 (UTC)

The ballot initiative was pushed off until 2012, so no, there has not been a vote.98.180.27.232 (talk) 06:07, 22 December 2009 (UTC)

Legislative Action and Legal Precedent Before 2003
This page is skipping an important part of the story--legislative action in the Mass. Gen. Assembly before the court case was decided. As far back as 2000(?) the Legislature was considering bills to legalize same-sex marriage. I can recall in one session the matter was eventually scuttled because a legislator added a rider to legalize polygamous relationships. While it was unclear whether they had all the votes they needed at the time (around 2001) they were getting pretty close. I would say the SJC decision hit most straight residents of Mass. like a brick to the forehead, but it was no surprise to readers of Bay Windows and innewsweekly, the two gay papers at the time. (I think one or both of them have folded.) This is also why the Legislature acted to scuttle the proposed ballot measure or put it off, rather than try to ban same-sex marriage as other legislatures have done. Much of the lobbying work had already been done; the delegates and senators were educated on the issue.

This page also seems to have left off an important name: Mary Bonuato, of Lambda Legal, the lawyer who brought the case. The GLBT community's leader in Mass. did an excellent job of educating lawmakers and carefully setting the legal precedent that led to this victory. There's a legal history to the SJC's decision as well. Only a few short years earlier they had decided a very nasty custody case in which a woman's partner had raised from infancy her biological child. They split, and she tried to deny her ex-partner any visitation rights or custody whatsoever. The court eventually ruled that despite no biological tie and no tie of marriage, it was in the child's best interest to be able to see the woman the child knew as its mother for most of its life. This case was very important in determining the court's ruling later on the same-sex marriage case. In the SJC's ruling they make reference to the welfare of children and family law.

I'm no wiki-weenie, so I'll leave it to y'all to fill in these missing pieces on the main page.98.180.27.232 (talk) 06:18, 22 December 2009 (UTC)

Deleted obsolete section
I deleted the following material because it seems to relate to proposals and possibilities in 2007 that aren't relevant today. If anyone disagrees, please put it back and update it!

Proposed amendment to the ballot initiative process Currently, the legislature is considering whether to submit a question to the voters that, if passed, would amend the state constitution to prohibit ballot initiatives dealing with the curtailment of "civil rights" or "matters of equal protection." In the interim, should another ballot initiative seeking to ban same-sex marriages make its way to the voters, the soonest it could appear on the ballot is 2012.

Cjmnyc (talk) 15:14, 19 June 2011 (UTC)

Biased Article
You have to give the actual details of the conflict over same sex marriage up front. By putting them later on, you give a false impression of Romney's role in the matter. Also, flat out attributing Romney's opposition to the desire to seek a "wedge issue" rather than to legitimate grounds of disagreement is another indication of bias. — Preceding unsigned comment added by 71.174.116.10 (talk) 17:23, 31 December 2011 (UTC)

You should flag this article as one who's impartiality is questionable and submit it to further review. — Preceding unsigned comment added by 71.174.116.10 (talk) 17:27, 31 December 2011 (UTC)