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After Goodridge: What Now?

By Jonah M. Knobler and Samuel P. Tepperman-gelfant

Last month, the Massachusetts Supreme Judicial Court ruled that banning same-sex marriage violated the state’s constitution. The four-to-three decision in Goodridge v. Department of Public Health affirmed the humanity of gays and lesbians by holding that same-sex couples are entitled to all “protections, benefits, and obligations of civil marriage.” Recognizing the dignity and equality of all individuals, the Court rewrote the common law definition of marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.”

But Goodridge is cause for concern as well as celebration. The Court chose not to grant a marriage license to Hillary and Julie Goodridge, but instead gave the legislature 180 days “to take such action as it may deem appropriate in light of [the Court’s] opinion.” As gay and lesbian couples plan June weddings, opponents of same-sex marriage are concocting schemes to circumvent the Court’s ruling.

According to Gov. W. Mitt Romney, the 180-day stay was a subtle invitation to the legislature to pass a Vermont-style “civil union” law—a “separate but equal” alternative to marriage. But Romney and other radicals want to go even further and amend the state constitution to ban not only same-sex marriage, but civil unions as well. Although a post-Goodridge poll showed that 53 percent of Massachusetts voters oppose such action, conservative activists are already beginning a propaganda campaign to drive the amendment through.

Supporters of equal marriage must speak out strongly because hate groups are already flooding state legislators with e-mails and phone calls from out-of-state. “It’s whoever’s voice is heard the loudest,” said Christian Coalition President Roberta Combs. “That’s what we’re all about.” It is up to us to make sure that the voice of equality rings out louder than the voice of prejudice. A conservative minority must not be allowed to brand gay and lesbian families with second-class status forever. Luckily time is on our side. The state will begin recognizing same-sex unions in 2004, and a constitutional amendment could not be ratified until 2006.

Come springtime, most experts agree that same-sex couples can look forward to getting married rather than “civil-unionized.” Tyler Professor of Constitutional Law Laurence H. Tribe has noted that “the court could hardly have been clearer… that the basic definition of marriage has to be broadened for it to meet the requirements of the state constitution.” Richard C. Van Nostrand, president of the Massachusetts Bar Association, agrees, saying, “I just don’t see any room in the [Court’s] opinion for the interpretation that the Governor and Attorney General…espouse.” Others point out that if the Court had believed civil unions to be a viable alternative to marriage, they could have said so explicitly, as Vermont’s Supreme Court did in 1998. Goodridge reaffirms that “separate but equal” has no place in a just society.

When the first same-sex marriages are celebrated here, Massachusetts will truly make history. Hopefully, when people see that this does not “destroy society as we know it” (as one conservative commentator has predicted), they will abandon what the Goodridge court called the “destructive stereotype that same-sex relationships are…inferior to opposite-sex relationships and are not worthy of respect.”

However, the issue may soon be hijacked by Washington. Although marriage has always been an area of state control, some conservatives are taking an unusual stand against states’ rights by supporting an amendment to the U.S. Constitution banning gay marriages and civil unions nationwide. An amendment would need to pass by a two-thirds vote in the House and Senate, then be ratified by three-fourths of the states (38 of 50). Thirty-seven states already have their own laws banning gay marriage, but this does not necessarily mean that they would vote for an amendment to the U.S. Constitution, a measure even some gay-marriage opponents see as drastic and unnecessary. After all, the 1996 federal Defense of Marriage Act already prohibits the federal government from honoring same-sex marriages and purports to give permission to the states to do the same.

Bush has stopped short of public support for a Constitutional amendment, instead making vague statements that he will “work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.” Nonetheless, this issue is sure to play an important part in the 2004 presidential election. Seventy-eight percent of voters who support Bush’s reelection oppose gay marriage, but so do 48 percent of voters who want to see Bush replaced by a Democrat. This suggests that after the Democratic primaries, we can expect the party to backpedal on its pro-equality promises.

The Court’s finding that dignity and equality require recognition of same-sex marriages stands in stark contrast to the efforts of some elected officials and activists to write discrimination into the Constitution.  It falls on us as citizens to ensure that this dispute is resolved in favor of justice and equal rights. We cannot let special interest groups drown us out as we call on our representatives in Massachusetts to oppose the proposed anti-gay amendment to the state constitution (H.B. 3190) or as we urge our national representatives to oppose the amendment to the U.S. Constitution. Families of same-sex couples deserve the respect and security that can only come from marriage. Our representatives and our society need to hear the message from us as clearly as they heard it from the Court.

Jonah M. Knobler ’03 is a first-year student at Harvard Law School. Samuel P. Tepperman-Gelfant ’00, who was a Crimson photography executive in 1998, is a second-year student at Harvard Law School. They are webmaster and academic chair of HLS Lambda, respectively.

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