LeftOut

by Daryl Moore

NOT A WIN

The Massachusetts Supreme Court marriage ruling isn’t a real victory

“Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”

That’s according to the Massachusetts Supreme Court, which recently held that the constitutional rights of seven same-sex couples were violated when they applied for but were refused marriage licenses.

The court’s holding sounds like a victory for same-sex couples. Maybe it will eventually prove to be one. For now, though, seven same-sex couples who have lived together in committed relationships for periods ranging from four to 30 years, and four of which are raising children, will have to wait a little longer before they’re able to marry.

Why? Because even though the Massachusetts Supreme Court held that same-sex couples could not be denied the right to marry under the state constitution, the court did hold that same-sex couples are now entitled to marry. Instead, the court stayed the enforcement of its judgment for “180 days to permit the [Massachusetts] Legislature to take such action as it may deem appropriate in light of his opinion.”

After holding that a same-sex marriage ban “works a deep and scarring hardship on a very real segment of the community for no rational reason,” the court remanded the issue to the Massachusetts legislature for no rational reason. After rejecting every assertion set forth by the state in arguing against same-sex marriage, the court still refused to give seven same-sex couples any real relief.

Instead, the Supreme Court gave the suing couples what they had allegedly asked for—a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. But the court did not direct that future same-sex couples who seek marriage licenses be granted them.

The court’s bravery in striking down discrimination is commendable. Its refusal to finally resolve the issue of whether same-sex couples should be granted marriage licenses is not.

And while I would like to be thrilled about the court’s holding, I can’t be. The plaintiffs won nothing more than a declaration that they were right. They and other same-sex couples still cannot marry. Same-sex relationships still enjoy no legal recognition in Massachusetts. And the court’s directive to the Massachusetts legislature to “take such action as it may deem appropriate” should not make any same-sex couple optimistic.

We should know better. A court in Hawaii has already held that same-sex couples should be allowed to marry. The Hawaii electorate voided that holding by passing a constitutional amendment to the contrary.

A few years ago, the Vermont Supreme Court issued a ruling much like the Massachusetts Supreme Court ruling. So the Vermont legislature enacted its “civil union” legislation, but refused to permit same-sex couples to marry.

In deciding to put same-sex couples who seek marriage licenses on hold for six months, the Massachusetts Supreme Court has invited the legislature to do the same. It has given the legislature the opportunity to throw same-sex couples a bone. A “civil union” bill or a “domestic-partnership” bill might pass, but same-sex marriage is not likely to make it out of the Massachusetts legislature.

Anything short of legislation confirming the right of same-sex couples to marry is not a victory. It isn’t enough for a legislature to give same-sex couples the right to enter into “unions” or “partnerships” that do not carry with them all of the same rights and responsibilities as a civil marriage. It isn’t enough for a same-sex couple to sue and obtain court “declaration” that it is unconstitutional to deny same-sex couples the right to marry. It will never be enough until one same-sex couple gets legally married somewhere in the United States. Then the victory will be real.

Writing from the liberal end of the spectrum, Houston attorney Daryl Moore has a general practice and is board certified in civil and appellate law.

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