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Wednesday, Feb. 4, 2004

The court issued the opinion in response to a request from the state Senate about whether Vermont-style civil unions, which convey the state benefits of marriage, but not the title, would meet constitutional muster.

"The history of our nation has demonstrated that separate is seldom, if ever, equal," the four justices who ruled in favor of gay marriage wrote in the advisory opinion. A bill that would allow for civil unions, but falls short of marriage, makes for "unconstitutional, inferior, and discriminatory status for same-sex couples."

The much-anticipated opinion sets the stage for next Wednesday's constitutional convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman. Without the opinion, Senate President Robert Travaglini had said the vote would be delayed.

The earliest a constitutional amendment could end up on the ballot would be 2006, meaning that until then, the high court's decision will be Massachusetts law no matter what is decided at the constitutional convention.

The Supreme Judicial Court ruled in November that same-sex couples had a constitutional right to marry, and gave the Legislature six months to change state laws to make it happen.

But almost immediately, the vague wording of the ruling left lawmakers, and advocates on both side of the issue, uncertain if civil unions would satisfy the court's decision.

The state Senate asked for more guidance from the court and sought the advisory opinion, which was made public Wednesday morning when it was read into the Senate's record.

When it was issued in November, the 4-3 ruling set off a firestorm of protest across the country among politicians, religious leaders and others opposed to providing landmark rights for gay couples to marry.

Issue for Bush

President Bush immediately denounced the decision and vowed to pursue legislation to protect the traditional definition of marriage. Church leaders in the heavily Roman Catholic state pressed their parishioners to oppose efforts to allow gays to marry.

And legislators were prepared to vote on a proposed amendment to the state constitution that would seek to make the court's ruling moot by defining as marriage as a union between one man and one woman, thus expressly making same-sex marriages illegal in Massachusetts.

What the case represented, both sides agree, was a significant new milestone in a year that has seen broad new recognitions of gay rights in America, Canada and abroad, including a June U.S. Supreme Court decision striking a Texas ban on gay sex.

When a decision similar to the November one was issued in Vermont in 1999, the court told the Legislature that it could allow gay couples to marry or create a parallel institution that conveys all the state rights and benefits of marriage. The Legislature chose the second route, leading to the approval of civil unions in that state.

The Massachusetts decision made no mention of an alternative solution, but instead pointed to a recent decision in Ontario, Canada, that changed the common-law definition of marriage to include same-sex couples and led to the issuance of marriage licenses.

No 'Adequate Reason'

The state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples," the court wrote. "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions."

The Massachusetts case began in 2001, when seven gay couples went to their city and town halls to obtain marriage licenses. All were denied, leading them to sue the state Department of Public Health, which administers marriage laws.

A Suffolk Superior Court judge threw out the case in 2002, ruling that nothing in state law gives gay couples the right to marry. The couples immediately appealed to the Supreme Judicial Court, which heard arguments in March.

The plaintiffs argued that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

Over the past decade, Massachusetts' high court has expanded the legal parameters of family, ruling that same-sex couples can adopt children and devising child visitation right for a former partner of a lesbian.

Massachusetts has one of the highest concentrations of gay households in the country with 1.3 percent of the total number of coupled households, according to the 2000 census. In California, 1.4 percent of the coupled households are occupied by same-sex partners. Vermont and New York also registered at 1.3 percent, and in Washington, D.C., the rate is 5.1 percent

© 2004 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.

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