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| revolutionary socialists in the United States |
Same-sex marriage: Massachusetts leads the way
by Joe Auciello
BOSTON—On May 17, Massachusetts became the first state in the country
to
perform same-sex marriage. Despite opposition from President Bush,
Boston’s
Roman Catholic Archbishop O’Malley, Governor Mitt Romney, and Mass.
Senator
and Democratic presidential hopeful John Kerry, the seven couples who
became
plaintiffs in the case that legalized gay marriage in this state
formally
made their wedding vows.
In less than a week, they were followed by approximately 1700 gay and
lesbian couples who filed for marriage licenses in 250 towns and cities
across Massachusetts. (However, under the 1996 "Defense of Marriage
Act,"
signed into law by President Clinton, the federal government will not
recognize the legality of these marriages.)
In November 2003, the Massachusetts Supreme Judicial Court, in a
four-to-three ruling, Goodridge v. Mass. Dept. of Public Health,
clearly
stated that gays and lesbians deserved equal protection under the law
and
were thereby free to marry partners of the same sex. Anti-gay bias was
explicitly rejected.
The court declared that "the marriage restriction is rooted in
persistent
prejudice against persons who are (or who are believed to be)
homosexual."
The court found "no rational reason" for anti-gay discrimination.
In the Goodridge decision the court minority illogically argued that
the law
does not discriminate against gays and lesbians because the law does
not
prevent them from marrying partners of the opposite sex. These members
of
the state’s highest court had to base their argument on such
preposterous
reasoning in a failed effort to deny the obvious: the civil right of
all
adult citizens to marry the partner of their choice.
Opponents of gay marriage quickly mobilized in Massachusetts. The state
legislature tried several times but failed to adopt legislation that
would
circumvent the SJC ruling. Organizations like the Massachusetts Family
Institute, the Catholic Action League, and the Liberty Counsel urged
the
federal appeals court in Boston to overturn the state court’s decision
on
the grounds that it had exceeded its authority.
The appeals court upheld the SJC. Gay rights opponents asked the U.S.
Supreme Court to intervene, but the Court refused to grant an emergency
order that would have halted same-sex marriages in Massachusetts.
Governor Romney then unearthed a little-known and rarely applied 1913
law
that prohibits out-of-state couples from marrying in Massachusetts if
the
marriage is illegal in their home state. Currently, 38 states
explicitly
disallow gay marriage. The 1913 statute was originally intended to
prevent
interracial marriage, then legal in Massachusetts but outlawed in a
majority
of the states.
Attorney General Thomas F. Reilly threatened non-cooperating
communities
with legal action if they did not comply with this vestige of racist
segregation. So gay marriage licenses are no longer granted to
out-of-state
couples.
The state Senate voted overwhelmingly to repeal the 1913 law. But it is
unlikely that a similar vote will be allowed to come to the floor in
the
House, where Speaker Thomas Finneran (Democrat) is a strong opponent of
gay
marriage and civil unions. The most probable result, then, is that the
Democratic-controlled legislature will allow the Republican governor to
prevail.
For the Democratic Party’s presidential candidate, John Kerry, gay
marriage
is not a cause to champion but a problem to avoid. The Democrats
consider
that the issue of civil rights for gays and lesbians is subordinate to
the
only issue that counts—getting elected.
Here they are confronted with an unwelcome dilemma. A clear statement
of
support for gay marriage would allow Bush to label Kerry as a
Massachusetts
liberal out of touch with the mainstream American voter, a strategy
that
helped his father in 1988 defeat Democratic presidential candidate and
Massachusetts Governor Mike Dukakis.
Yet Kerry knows he needs the support of the gay community, among other
minorities, to win the White House. So, true to his fashion, Kerry
hedges
his bets. He opposes gay marriage and only supports civil unions.
In Massachusetts, Kerry has endorsed legislative efforts to amend the
state
constitution to ban gay marriage. But he opposes Bush’s call for a
constitutional amendment against gay marriage and supports the right of
the
states to decide on the legality of same sex marriage.
In other words, Kerry thinks gay marriage should be banned by each of
the 50
state governments, not by the federal government. There is ample
precedent
in constitutional law, however, to make the case that equal protection
in
civil rights cannot be curtailed by a state. This was the issue only a
few
decades ago, when the argument for states’ rights was used to preserve
racial segregation in the South.
Sadly, the established gay civil rights groups have accepted Kerry’s
less-than-halfway measures and have adopted him as their candidate, so
they
will offer no criticism of the lesser evil.
In the meantime, the court victory won in Massachusetts can be repealed
in
2006 when voters in the state could be able to consider a
constitutional ban
on gay marriage. Current polls show a majority of Mass. voters oppose
gay
marriage in favor of more restricted civil unions.
The message is clear. The movement that won a significant step for gay
rights must still keep marching.
This article first appeared in the June 2004 issue of Socialist Action newspaper.
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