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Lev Kobrin
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GAY MARRIAGE DECISION HARKS BACK 55 YEARS
Ruling on Interracial Marriage Plays a Role in Massachusetts Case
BY MOLLY McDONOUGH
Fifty-five years ago, the California Supreme Court ventured into uncharted civil rights territory when it struck down a statute barring interracial marriage. It held that marriage "is a fundamental right of free men."
The decision to allow Andrea Perez, a Latino then considered a white woman, the legal right to marry Sylvester Davis, who was black, gradually led to similar rulings elsewhere, including the U.S. Supreme Court, and eventually to greater public acceptance of mixed marriage.
Time will tell whether this week’s controversial 4-3 decision by the Massachusetts Supreme Judicial Court to overturn the state ban on same-sex marriage will lead to a similar movement toward equality for gay and lesbian couples in the United States.
Tuesday’s decision is a clear descendant of the interracial marriage cases, says Gary Buseck, executive director of Gay and Lesbian Advocates and Defenders, which brought the case. "The freedom to choose to marry doesn’t mean a thing if you can’t choose the person you love," he says.
In Goodridge v. Department of Public Health, No. SJC-08860, the court gave the legislature 180 days to change the law in a way that will agree with its new common-law definition that marriage is "the voluntary union of two persons as spouses, to the exclusion of all others."
Gay rights advocates celebrated the ruling, which can’t be appealed because it rests on Massachusetts constitutional law.
But same-sex marriage opponents, including President Bush and Massachusetts Gov. Mitt Romney, are looking to ambiguities in the 180-day stay that may allow something short of same-sex marriage. They are also promising to push for state and federal constitutional amendments to reaffirm that marriage is a union between a man and a woman.
"Marriage is a sacred institution between a man and a woman," Bush said Tuesday. "[The] decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."
The U.S. Congress and 37 states have enacted Defense of Marriage Act initiatives, designed to counter court rulings in states such as Hawaii that would have otherwise legalized same-sex marriage. The act allows states that do not sanction same-sex marriages within their borders to not recognize such marriages from other jurisdictions.
In its Nov. 18 decision in Goodridge, the majority looked back to Perez v. Sharp, 32 Cal.2d 711 (1948), and the subsequent U.S. Supreme Court decision 19 years later in Loving v. Virginia, 388 U.S. 1 (1967). Writing for the Goodridge majority, Chief Justice Margaret H. Marshall says, "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."
She further concludes that there is no rational basis for a same-sex marriage ban, especially when it comes to putting children of such unions at a disadvantage. "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," Marshall writes.
Dissenting justices argued the court was overstepping by tinkering with an institution created by the state. Justice Robert J. Cordy acknowledged that the seven petitioning couples made a persuasive case for the extension of the benefits and burdens that come with civil marriage. But he concluded the issue "is one of deeply rooted social policy" that is better handled by the legislature.
Justice Martha B. Sosman added in a separate dissent that there has not yet been a "prolonged period of observation of this new family structure.&#
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