Constitutional Issues

Massachusetts’ highest court held that limiting civil marriage to different-sex couples violates principles of liberty and equality under the Massachusetts Constitution. The court said that the prohibition of marriages of persons of the same sex, like the historical prohibition of interracial marriages, “deprives individuals of access to an institution of fundamental legal, personal, and social significance.”

Regarding arguments that the restriction of marriage to persons of different sex was justified because such marriages provided a “favorable setting for procreation” and raising children, the court said, “Fertility is not a condition of marriage, nor is it grounds for divorce...The ‘best interests of the child’ standard does not turn on a parent’s sexual orientation or marital status.” The court concluded: “Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society.” The court noted that under established principles of law, states are allowed to interpret state constitutions in a way that grants individuals broader rights than the U.S. Constitution.

Three justices on the Massachusetts Supreme Judicial Court dissented. All three dissenting justices said that the decision whether to allow couples of the same sex to marry should be made by the legislature, not the court. One justice said: “The power to regulate marriage lies with the Legislature, not with the judiciary... Such a dramatic change in social institutions must remain at the behest of the people through the democratic process.” He said that before a court declares a new constitutional right of a fundamental nature, the asserted right must be “objectively, deeply rooted in this Nation’s history and tradition,” which same-sex marriage is not.

The state of Vermont also has granted broad rights to couples of the same sex. In the 1999 case of Baker v. State, the state supreme court held the Vermont’s constitution required that same-sex couples receive the same benefits and protections as married couples of different sexes. The court did not require that same-sex couples be allowed to marry, but it did require that the state legislature provide them with “the common benefits and protections that flow from marriage under Vermont law.”

In response to the court’s ruling, the Vermont legislature passed a statute establishing civil unions which grants couples of the same sex the same rights as married of couples of different sex. The equal rights granted are under Vermont’s state law only. The Vermont legislature and courts cannot control the application of federal laws to couples of the same sexes. Thus, for example, federal laws regarding joint tax returns, Social Security survivors benefits, and immigration status for family members are not affected by Vermont’s civil union laws.

In 1993, the Hawaii Supreme Court, held in Baehr v. Lewin that the state’s prohibition of marriage by same-sex couples appeared to be sex discrimination and a denial of equal protection under the state constitution. While the case was still pending, the Hawaii Constitution was amended to allow the legislature to preclude such marriages, and the legislature did so. The case was then dismissed as moot – meaning that a ruling would no longer be of practical significance since the constitutional provision on which the original the case was based had been changed.

Meanwhile, courts in at least seven other states have held that it does not violate state or federal constitutions to deny the right to marry to a person of the same sex.

As of 2005, three countries recognize marriage of persons of the same sex: Belgium, Canada, and Netherlands. In addition, many other countries–including several in Europe–recognize partnerships or pacts that grant couples of the same sex most of the rights and responsibilities of marriage.