Massachusetts Supreme Court took bold step on same-sex marriage, but ruling was outcome of 'contemporary legal developments'

Dec. 16, 2003 -- The recent ruling by the Massachusetts Supreme Judicial Court allowing same-sex marriages relied on the state constitution's guarantees of both individual liberty and equality to conclude that no rational basis supports the exclusion of same-sex couples from civil marriage and its benefits, according to Susan Appleton, a family law expert at Washington University in St. Louis. "Although the court took a bold step, the outcome follows unremarkably from a number of contemporary legal developments," says Appleton, the Lemma Barkeloo & Phoebe Couzins Professor of Law.

"While methodically rejecting the state's attempts to justify a restrictive understanding of marriage, the opinion addresses only civil marriage, which the court describes as 'a wholly secular institution' that provides great benefits for both the state and individuals who choose to marry."

Appleton's analysis of the modern legal developments that preceded the Massachusetts Supreme Court decision:

"First, some considered interracial marriage as unthinkable when some state courts and the U.S. Supreme Court held anti-miscegenation laws unconstitutional as today's critics find same-sex marriage.

"Second, courts and legislatures throughout the United States have invalidated sex-based laws, especially those resting on archaic stereotypes about males and females. Such reforms required gender-neutral alternatives to many earlier family laws, for example, laws imposing support duties only on husbands and fathers or providing parental leaves from work only for mothers. As gender differences have receded in importance in family law, one can legitimately wonder why a marriage requires a male and female.

"Third, the advent of no-fault divorce has worked a fundamental change in the traditional understanding of marriage, conflicting with some religious understandings.

"Fourth, the U.S. Supreme Court has struck down invidious discrimination against gays and lesbians, and just this summer it invalidated a Texas ban on same-sex sodomy, citing the right to privacy, the 'dignity of [gays and lesbians] as free persons,' and the insufficiency of moral objections to justify criminal penalties for private conduct that does not harm others. In this recent case, Lawrence v. Texas, the Court cited developments in other countries. Finally, same-sex marriage has become a reality in nearby Ontario, Canada, and several citizens of the United States have celebrated same- sex marriages there."

Appleton notes that it will be interesting to see the political response to this ruling.

"Will the Massachusetts legislature perpetuate second-class citizenship for members of same-sex couples by offering them civil unions but not full-fledged marriage, as Vermont did?" says Appleton. "Will we see an nullifying amendment to the Massachusetts constitution, as we saw in Hawaii and Alaska after courts there came close to recognizing same-sex marriage? What impact will the case have outside Massachusetts? And how will candidates for election refine their positions now that same-sex marriage has gained the spotlight?"