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Mass. Court Rules That Gay Couples Have the Right to Marry Under the State's Constitution

November 19, 2003

We speak with one of the seven gay couple couples who petitioned the case, the country’s leading lawyer on LBGTQ rights issues and from a conservative think tank that is pushing against what they call "the homosexual agenda." [Includes transcript]

Massachusetts’ highest court ruled yesterday that gay couples have the right to marry under the state’s Constitution. In the 4-3 ruling, the state Supreme Court wrote that marriage is "among the most basic of every individual’s liberty and due-process rights."

Judges gave the state legislature six months to come up with a law making same-sex marriage possible. Vermont established civil unions for gay couples in 2000 but legal experts say the Massachusetts ruling goes a step further by clearly saying same-sex couples have the identical right to marriage as heterosexuals. The ruling could have ramifications across the country.

Opponents of same-sex marriages condemned the decision and said legislation is needed to take the issue out of the courts’ hands. The only way to overturn the court ruling would be to change the Massachusetts constitution.

The Legislature is considering an amendment backed by Republican Governor Mitt Romney and key Democratic legislators that would bar same-sex marriages.

  • Sen. Bill Frist, Majority Leader, speaking after the Mass. Cour ruling on November 18, 2003.
  • Susan Sommer, supervising attorney at Lambda Legal who was one of the key counsels in the historic Lawrence vs. Texas ruling this summer and is also part of the marriage license suit in New Jersey by seven couples that was just dismissed but will be appealed.
  • Gary Chalmers and Rich Linnell, one of the seven same sex couples who are petitioners in the Massachusetts case.
  • EJ Graff, author of What is Marriage For: The Strange Social History of Our Most Intimate Institution and visiting scholar at Brandeis Women’s Studies Research Center in Waltham Massachusetts
  • Robert Knight, Director of the Culture and Family Institute.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Yesterday the plaintiffs’ attorney, Mary Bonauto, and one of the plaintiffs, Julie Goodrich spoke after the ruling.

MARY BONAUTO: Now, finally, these couples who’ve been together years, if not decades, will finally have the chance to be treated equally and fairly by their government and have the right to join in civil marriage.

JULIE GOODRICH: Thank you very much. Mostly, thank you to the Supreme Judicial Court of the State of Massachusetts for seeing what we know to be true, which is that we are a couple that is worthy of the protections of marriage, and that after 16-and-a-half years, Hillary and I are finally going to be able to get married and protect our family.

AMY GOODMAN: Julie Goodrich, speaking after the ruling. Vermont established civil unions for gay couples in 2000, but legal experts say the Massachusetts ruling goes a step further by clearly saying same-sex couples have the identical right to marriage as heterosexuals. The ruling could have ramifications across the country. Opponents of same-sex marriage condemn the decision, and said legislation is needed to take the issue out of the courts’ hands. The only way to overturn the court ruling would be to change the Massachusetts Constitution. The legislature is considering an amendment backed by Republican governor Mitt Romney and key Democratic legislators that would ban same-sex marriage.

We’re joined on the phone now by a number of people. We’re going to begin with Gary Chalmers, one of the seven— along with his partner, Rich Linnell, one of the seven same-sex couples, petitioners in the Massachusetts case. How do you feel today, Gary?

GARY CHALMERS: We’re very happy today. This has been a great day-well, yesterday and today, obviously great days for us This has been a two-and-a-half year struggle for us here. And, on behalf of myself and the other six couples, we are just thrilled to death today.

AMY GOODMAN: How did you end up joining this case?

GARY CHALMERS: Over the past— we have an 11-year-old daughter that we adopted at birth. The past few years we’ve been trying to do some planning to make sure that if something had ever happened to one of us, Rich or myself, that our daughter would be well taken care of. And as we were doing that, we started to realize that there were a lot of things that we just couldn’t really plan for without having the benefits of being married. So, we ended up getting in touch with GLAD and found out that we weren’t the only couples struggling with these same issues. And then, amongst that, became involved in the lawsuit.

AMY GOODMAN: We’re also joined on the phone by Susan Sommer, supervising attorney at Lambda Legal, who was one of the key counsels in the historic Lawrence versus Texas ruling this summer, and is also part of the marriage license suit in New Jersey, by seven couples that was just dismissed but will be appealed. And Robert Knight is on the line with us, director of the Culture and Family Institute based in Washington, D.C. Susan Sommer, the significance of the Massachusetts case for people around the country?

SUSAN SOMMER: This is a tremendous milestone for lesbian and gay couples in Massachusetts who want the simple right to be treated like every other committed couple in the state. And it’s a great symbolic moment for the rest of the country, as well, to see fellow citizens in Massachusetts being given the very basic right to marry and protect their families.

AMY GOODMAN: Robert Knight, you’re with Culture and Family Institute. What are your plans now?

ROBERT KNIGHT: We’re going to encourage the Massachusetts legislators to listen to the court and to take action that’s appropriate and, of course, we believe that would be passing a constitutional amendment protecting marriage as the union of one man and one woman. The court invented this right. There’s nothing in the Massachusetts Constitution that says that you have to force gay marriage on all the people of Massachusetts. They made up whole law, and, you know, one interesting page from this is that they quoted the Lawrence case from the U.S. Supreme Court, which had a striking legal precedent tucked inside it, which is that morality, in and of itself cannot be a rational basis for public policy, which would be news to people like John Adams who largely wrote the Massachusetts Constitution. So, if morality is no longer a basis for public law, and the court is citing that to use the Massachusetts Constitution to pretty much obliterate the whole Judeo-Christian view of marriage and sexual morality that this country has held for a couple hundred years, it shows that the justices are going far outside the law, far outside the intent of the writers of not only the Massachusetts Constitution but the U.S. Constitution, and making it up as they go along. I think that this will actually spur a lot of people into action who had been sitting on the sidelines, saying, well, these judges are a little bit out of control, but now we’ve seen they’ve gone right over the edge. Now they’re making up law, we no longer have self-governance and we’ve got to take the law back into our own hands and re-establish the moral order.

AMY GOODMAN: We’re also joined by E.J. Graff, author of "What is Marriage For? The Strange Social History of Our Most Intimate Institution." She’s Visiting Scholar at Brandeis Women’s Studies Research Center in Waltham, Massachusetts. Your response to Robert Knight?

E.J. GRAFF: I find it very amusing to think of same-sex marriage being forced on— I do live here in Massachusetts— being forced on my neighbors Fred and Tilley. I don’t know who Fred would marry. I think he’s going to stay married to Tilley.

ROBERT KNIGHT: I meant recognition of marriage forced on everybody, like businesses that don’t want to subsidize it.

E.J. GRAFF: Massachusetts citizens are 55% in favor of same sex marriage and 77% don’t think that there should be a constitutional amendment to roll back recognition of same sex marriage. I think we’re going to keep it. Most of Massachusetts citizens believe in equality and fairness. And we’re— Massachusetts is actually— and the United States are actually trailing the rest of the world where same-sex marriage and same-sex partnership recognition are—

ROBERT KNIGHT: The rest of the world? Please. Where, Holland?

E.J. GRAFF: Let me give you the whole roundup without an interruption. Netherlands, Belgium, Canada and now Massachusetts offer full civil marriage rights.

ROBERT KNIGHT: That’s the rest of the world.

E.J. GRAFF: I’m not done. All of Scandinavia, South Africa and Germany offer everything except the word. Australia, New Zealand, Hungary, Israel, Portugal, France, 11 out of 17 provinces in Spain, two provinces in Argentina already offer either de facto marriage— that’s what it’s called— or other partial recognitions, and more of them are discussing it every day. Spain, Sweden and South Africa— excuse me— are all supposed to have full marriage recognition within the next couple of years, and Switzerland is about to pass an all-but marriage law.

ROBERT KNIGHT: Yeah, they’re all awash in pornography, too, but that doesn’t make it right.

AMY GOODMAN: Susan Sommer, would you like to respond to that?

SUSAN SOMMER: What we see in Massachusetts are families like Gary’s, who want to be part of a traditional institution that is so important to giving stability and support to raising children, to committed relationships, these are families that just want to raise their children, hold their jobs, buy their groceries just like everyone else. There’s nothing radical or frightening about this, and I think what’s going to be very important for the country to see is the sky doesn’t fall when Massachusetts’ same-sex couples marry. There’s no need to have a federal constitutional amendment to use our federal constitution to scale back on states’ rights. …an individual state to decide that what’s fair there is to grant marriage to same-sex families.

AMY GOODMAN: I want to go for a minute to the Senate Majority Leader, Dr. Bill Frist, who spoke right after the Massachusetts ruling came down yesterday.

BILL FRIST: Remember that this body, the United States Senate and the Congress, so with 85 votes did pass the Defense of Marriage Act. And, in essence, that said that marriage is that union between one woman and one woman. So, it is an issue as we watch what’s happening with the courts, that in some shape or form we’ll be addressing here in the United States Senate.

AMY GOODMAN: And that was Bill Frist, the Senate Majority Leader. Susan Sommer, how does DOMA, the Defense of Marriage Act, fit into this picture?

SUSAN SOMMER: Well, DOMA, the federal Defense of Marriage Act that was passed in 1996, doesn’t affect at all what the Massachusetts highest court has decided, which is that under the state constitution, the constitution requires that marriage rights be extended to same-sex families. What DOMA does is purport to say that the federal government, for purposes of federal benefits, doesn’t have to recognize those Massachusetts marriages, and purports to say that other states can have the choice not to recognize them or respect them. Although DOMA itself has long been criticized as being overreaching by Congress, and potentially unconstitutional as well.

I think that it’s important to remember that Massachusetts has made this decision— its highest court. Polls are showing that the public is in line with that decision, and the court is interpreting its own state’s constitution for very sound reasons, saying that it’s only fair and right to extend marriage to same-sex families within the state.

AMY GOODMAN: So, Robert Knight, specifically what is your strategy right now around the country?

ROBERT KNIGHT: Well, first of all, according equal status to unequal things is wrong. Aristotle said it a thousand years ago, if you say things are equal that aren’t, you are committing a sin, because you are destroying the definition of what things are. You know, if you go out and say that it’s discrimination that not everybody who has a bachelor’s degree is awarded a Ph.D. because— and they don’t feel good, they’re not equal, so let’s make them all equal by a judicial pen. You’re kind of doing that with marriage. Marriage is the union of the two sexes. It provides a unique quality to civilization. It’s protected in the law because it’s the one indispensable institution. And when you give equal marriage benefits and status to non-marital relationships, you cheapen the real thing and put into law something that will be imposed on all the people of Massachusetts. If you’re a devout, Christian, Jew or Muslim, and you are running a business, and you believe homosexuality is wrong and unhealthy and immoral, your government will be saying, sorry, your beliefs are a form of bigotry, we’re going to force this on you. And, in fact, we feel so strongly, we’re going to lay legal sanctions against you unless you actually subsidize this sin.

AMY GOODMAN: Specifically, what are you going to do about it?

ROBERT KNIGHT: What are we going to do about it? We are going to push on two tracks, one within Massachusetts, for the legislators, to push back and say, you know, courts do one thing. They interpret the law. They give decisions in specific cases. They cannot tell a legislature what to do. The Vermont legislature should have told the Vermont Supreme Court to take a hike a couple of years ago when they told them to impose civil unions, or gay marriage or else. I would think the Massachusetts legislators may get their backs up and say, well, it’s all well and good for you to feel this way, but you can’t tell us what to do. We do have a separation of powers. So we’re going to push for a constitutional amendment in Massachusetts but also at the federal level. A lot of people on Capitol Hill have been sitting on the sidelines saying, well, until Massachusetts rules, we don’t really see a need for protecting marriage on a national scale. Now that Massachusetts has ruled, I think they may be looking at it differently.

AMY GOODMAN: And do you think—

ROBERT KNIGHT: …there may be a real drive for a federal marriage…

AMY GOODMAN: Do you think you have the president on your side?

ROBERT KNIGHT: Yeah, we do. He gave a very strong, unequivocal statement yesterday in support of marriage. He said the sanctity of marriage was under attack. He disagreed vehemently with what the Massachusetts Supreme Court had done, and said he will do everything in his legal power to protect marriage.

AMY GOODMAN: So Susan Sommer, let me just ask— let me bring Susan Sommer into this. So, what is going to be the response of Lambda Legal and other grassroots activists around the country on this issue?

SUSAN SOMMER: I think it’s important for the country to think long and hard before tampering with our federal constitution. It would be unprecedented, one, to roll back states’ rights by saying an individual state like Massachusetts can’t make its own decisions in the traditionally state area of regulating marriage. You know, it’s ironic that people who purport to be conservative, on the right side of the political spectrum, are now saying, oh, we want to federalize marriage and take away states’ rights. Also, it would use our federal constitution to take away people’s civil rights. That’s not historically what our constitution is about. It’s the document that preserves our civil rights, not scales them back.

AMY GOODMAN: Well, on that note, I want to thank you both very much for being with us. Susan Sommer, supervising attorney at Lambda Legal, one of the key counsels in the historic Lawrence versus Texas case. Also, Robert Knight of the Culture and Family Institute in Washington, D.C. E.J. Graff, the book, "What is Marriage For? The Strange Social History of Our Most Intimate Institution." And we began with one of the couples— one member of the couple, Gary Chalmers and Rich Linnell, that brought the petition in Massachusetts in which the Supreme Court ruled yesterday. That does it for the program.

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