Was Gay Marriage Legalized in Massachusetts in 2005?

Question

The organization MassResistance claims otherwise:

MassResistance had an interesting day yesterday (4-12-05) at the Judiciary Committee hearing on the three bills submitted by Article 8 Alliance and their sponsor, Rep. Emile Goguen.

Bill H652 is the "Bill of Address", calling for removal of the four justices of the Mass. Supreme Judicial Court (who ruled that John Adams really wanted men to be able to marry each other).

Bill H653 is would define marriage as one man + one woman without allowing civil unions. (How odd... It appears the House Clerk has made an error, and listed it as a proposed Constitutional amendment! Since Article 8 is opposed to the concept of amending the Constitution in this way, it's hard to understand how this happened...)

Bill H654 points out that "gay marriage" is still not legal! We got a copy of the testimony on 654 from the citizen behind this bill, and reprint it here:

I ask the Committee to pay special attention to Bill H654, which I asked Rep. Goguen to file. This bill would essentially nullify the so-called "marriages" of homosexual couples which have taken place since May 17, 2004, when the Goodridge ruling went into effect.

NOTE THAT LANGUAGE: "when the Court ruling went into effect"! I remind the Committee that the Legislature never did anything to comply with this illegitimate ruling (which supposedly legalized homosexual marriage) -- nor should they have. The Court had no authority to speak on marriage. Only the Legislature and Governor have authority in this area, according to our Massachusetts Constitution.

The Legislature never did bring Massachusetts statutes into line with this ruling. "Gender-neutral" language to amend existing marriage statues never was passed. Therefore, all so-called "marriages" between homosexual couples which have taken place since May 17, 2004 are without statutory basis, and should be considered null and void.

Is this correct? If not why?

Answer 1

Yes

The only accurate thing in the linked article is: "I am not a Constitutional lawyer." That could be taken further into "I have no real idea how our legal and political systems work."

One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were:

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.

On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the "best interests of the child" and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection.

In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything.

Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want.