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No option: same-sex ‘marriage’ must be legalized, court rules

BOSTON (BP)—-Massachusetts moved one step closer toward legalized same-sex “marriage” Feb. 4 after its high court ruled that civil unions do not meet the requirements of the state’s constitution.

The advisory opinion was a blow to the state Senate, which had hoped to legalize Vermont-type civil unions and skirt the issue of marriage. Now, it appears that the state will begin granting marriage licenses to same-sex couples in mid-May, making Massachusetts the first state to do so and placing the issue squarely in the middle of the presidential election.

It was the second ruling on same-sex “marriage” by the Massachusetts Supreme Judicial in three months. On Nov. 18 the justices issued a landmark ruling, saying that under the state constitution same-sex couples could not be barred from “marrying.” The court then stayed its opinion for 180 days, and the Senate requested an advisory opinion on the issue of civil unions. Civil unions, legal only in Vermont, give same-sex couples all of the state legal benefits of marriage without using the term itself.

Both rulings saw identical 4-3 splits, with the same four justices making up the majority.

“Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status,” the majority wrote while pointing to its November decision in Goodridge v. Department of Public Health.

“The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.”

The four justices also cleared up any misconceptions behind the purpose of their 180-day stay. Some observers had speculated that the court was giving the legislature wiggle room to legalize civil unions. But that was not the case.

“The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision,” the majority wrote.

The ruling came as legislators around the country debate the issue of same-sex “marriage.” On Feb. 3 alone, the Ohio state House of Representatives and the Indiana state Senate passed bills banning recognition of same-sex “marriage.” Ohio’s bill is a statute, Indiana’s a state constitutional amendment.

Conservatives said the ruling was further proof that a federal marriage amendment protecting the traditional definition of marriage is needed. Homosexual activist groups have said they plan to use Massachusetts’ new law to try and overturn in court the nation’s marriage laws.

The White House criticized the ruling but once again stopped short of embracing an amendment.

“Today’s court ruling is deeply troubling,” White House spokesman Scott McClellan said. “… We will be reviewing the decision. Activist judges continue to seek to redefine marriage by court order without regard for the will of the people.”

McClellan would not speculate as to when President Bush would back a constitutional amendment. Although an amendment does not require approval by the president, his support is considered crucial for its passage.

One such amendment has been introduced in Congress and so far has support from 109 representatives and six senators.

“The president has always believed that marriage is a sacred institution between a man and a woman,” McClellan said. “He is firmly committed to protecting the sanctity of marriage.”

Bush has made it clear that “this is a principled stand for one of our most fundamental, enduring institutions,” McClellan said.

Even though Bush has yet to back an amendment, a clear distinction already exists between him and the leading Democratic presidential candidate, John Kerry. In 1996 Kerry was one of only 14 senators to vote against the Defense of Marriage Act to protect states from being forced to recognize another state’s same-sex “marriages.” It was signed by President Clinton, and Bush support it.

But White House officials weren’t the only ones labeling the majority justices “activist.” Dissenting Justice Martha B. Sosman did as well.

In pointing out that federal law and the law of other states would not recognize the new marriage licenses, she wrote: “[I]t is beyond the ability of the Legislature — and even beyond the ability of this court, no matter how activist it becomes in support of this cause — to confer a package of benefits and obligations on same-sex ‘married’ couples that would be truly identical to the entire package of benefits and obligations that being ‘married’ confers on opposite-sex couples.

“That difference stems from the fact that, Goodridge notwithstanding, neither Federal law nor the law of other States will recognize same-sex couples as ‘married’ merely because Massachusetts has given them a license called a ‘marriage’ license.”

Sosman also placed quotation marks around the word “marriage” when referring to same-sex “marriage” — apparently showing her personal opinion on the issue.

The Arlington Group, a coalition of more than 20 pro-family groups, issued a statement calling for the passage of a marriage amendment in both the Massachusetts and U.S. Constitutions. The Massachusetts legislature is scheduled to meet Feb. 11 to vote on an amendment, although it wouldn’t go before voters until 2006 at the earliest.

“The people must be given a voice, and this amendment is the only way to make that happen,” the statement read. “… Today it is also clear that a federal marriage amendment is absolutely necessary. Congress must immediately pass it so that activist judges can no longer redefine marriage.”

The Arlington Group is made up of organizations such as the Southern Baptist Ethics & Religious Commission, the Family Research Council and Focus on the Family.

The proposed Massachusetts’ Senate bill included language saying that its passage would preserve “the traditional, historic nature and meaning of the institution of civil marriage.”

The court, though, disagreed, saying that the government may not, “under the guise of protecting ‘traditional’ values, even if they be the traditional values of the majority, enshrine in law an invidious discrimination that our Constitution, ‘as a charter of governance for every person properly within its reach,’ forbids.”

Massachusetts Gov. Mitt Romney, a Republican, criticized the ruling.

“We’ve heard from the court, but not from the people,” Romney said in a statement, according to FOXNews.com. “The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage.”

President Bush has said he would support a constitutional amendment “if necessary.” Every Democratic presidential candidate opposes it.

For information on the battle over same-sex “marriage,” visit BP’s story collection at:

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  • Michael Foust