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Rather than throw out the marriage law as
unconstitutional, the court remanded the case
to the trial court and delayed its implementa
tion for 180 days “to permit the Legislature to
take such action as it may deem appropriate in
light of this opinion.”
Justice John M. Greaney concurred with the
majority hut would have gone further. Using
“equal protection" analysis, he would order
immediate issuance of marriage licenses to the
plaintiff couples. Delaying the remedy “on the
grounds that the couples are of the same gender
constitutes a categorical restriction of a funda
mental right."
The three dissenters, in a decision penned hy
Justice Robert J. Corday, argued, “The court has
transmuted the ‘right’ to marry into a right to
change the institution of marriage.”
They drew upon U.S. Supreme Court deci
sions that tied the “fundamental" right to marry
“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 a ct.... No matter how
personal or intimate a decision to marry some
one of the same sex might be, the right to make
it is not guaranteed by the right of personal
autonomy."
Cordays dissent acknowledged that plain
tiffs had made a powerful case for the exten
sion of the benefits and burdens of civil mar
riage to same-sex couples, but he argued, "that
decision must be made by the Legislature, not
the court."
Justice Martha B. Sosman, in a separate dis
sent that was joined by the two other judges,
argued that the Legislature should not tinker
with the traditional definition of marriage
until it is sure that it will not adversely affect
this critical institution within society. She
advocated a circular Catch-22 approach that
would defer gay marriage until society reached
a consensus that the idea in the abstraction was
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Gina Smith and Heidi Norton (left) and
Richard Linnell and Gary Chalmers are two
of the plaintiff couples who successfully sued
Massachusetts for the right to marry
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his is a momentous legal and cultural
I milestone. T he law caught up with the
reality that gay people and families are part of
the fabric of our communities," said Mary L.
Bonauto. She is an attorney with Gay & Les
bian Advocates and Defenders, the Boston-
based group that represented the gay and les-
hian couples.
“This is a proud moment for our family,” lead
plaintiff Hillary GixxJndge said. “We no longer
have to explain to our 8-year-old daughter why
we can’t marry, or that we love each other even
though we are not married. And more impor
tantly, we’ll be able to provide Annie with the
full protections under marriage” that we cannot
provide now.
“We hope that our fellow Americans will
treat these new marriages just like they want
their own to lx* treated, offering respect and sup
port to these couples,” said David Buckel, direc
tor of Lambda Legal’s Marriage Project. The
organization is appealing a lower court decision
on marriage in New Jersey.
Lambda executive director Kevin Cathcart
said the U .S. Supreme C ourt’s Lawrence vs.
Texas ruling, which banned state sodomy
statutes, “pushed open a door that had been
locked tor gay people for decades. Today’s
decision is in that same spirit. We will build
on our victory and deliver its promise to gay
people in all areas of life, including relation
ship recognition, parenting, schools and
employment."
Yet even amid the celebrating came warn
ings of cant ion. “We are also preparing our fam
ilies for an onslaught ot attacks by right-wing
activists,” said Dave Noble, executive director
ot National Stonewall Deimxrats. “T he ruling
is the beginning, not the end, ot our struggle for
all marriages to he treated equally.”
T h e Family Research Council is leading
the right-wing charge. “This is a wake-up call
for both the American public and our elected
officials,” said president Tony Perkins, pre
dicting the apocalypse. “If we do not amend
the Massachusetts State Constitution so that
it explicitly protects marriage as the union of
one man and one woman, and if we do not
amend the U .S. Constitution with a Federal
Marriage Amendment that will protect mar
riage on the federal level, we will lose mar
riage in this nation. We must amend the
Constitution if we are to stop a tyrannical
judiciary from redefining marriage to the
point of extinction."
Most leading Democratic political leaders
have embraced a traditional definition of mar
riage as between a man and a woman yet have
opposed changing the Constitution. Their
Republican counterparts have been wary of
embracing an amendment, pending the Massa
chusetts decision.
T he court’s involvement of the Legislature
in the process of creating gay marriage might
offer a sufficient fig leaf to deter the Bush
administration from jumping on the amend
ment bandwagon. Only time, and polling data,
j will reii. jn
B ob R oehr ls a /fee-lance reporter based m
Was/ungton, D .C .