Earlier in this decade I slid into the “give gay couples all the legal rights of marriage, just don’t call it marriage” trap, but when the Massachusetts Supreme Judicial Court held that a ban on same sex marriage violated the state Constitution (Goodrich v Dept of Public Health – 2003), I read the court’s decision very closely. That’s when it hit me. The fundamental right was the status of being married not all the rights that were incidental to it. From that moment on I’ve been a supporter and a very interested observer.
Earlier this week, US District Court Judge Joseph Tauro issued a pair of decisions that held unconstitutional the Federal Defense of Marriage Act, a law passed in 1996 that defines marriage for purposes of receiving any Federal funds as being between a man and a woman. In one case, Tauro found that DOMA violated the 10th Amendment by infringing on a right reserved to the states – defining marriage. In the other case, he found that DOMA deprived citizens of the equal protection of the law in violation of the 5th and 14th Amendments. The Obama Justice Department, which defended both cases, has until early September to appeal. I’ll go out on a limb and predict they will not appeal, partly because they probably agree with the outcome (but perhaps not the reasoning) of these cases, but mostly because the impact of this decision will be limited only to Massachusetts and that the entire issue will probably be clarified by the US Supreme Court when it ultimately rules on the case of Perry v Schwazenegger, the as-yet-undecided case tried earlier this year that challenges California’s state constitutional ban on same sex marriage on the grounds that it violates the US Constitution.
The issue is whether bans on same sex marriage violate the Constitutional rights of the couples seeking to wed. That’s the central issue in the California case while the just-decided Massachusetts cases just nibble around the edges. Whichever case is appealed, it will probably be at least three years before a US Supreme Court decision is rendered on this issue. In the meantime, if you’re someone who sees this issue as a threat to the sanctity of marriage, please stop by the Superior Courthouse on Gorham Street in Lowell on the second or fourth Friday of the month. Those are the days the Probate Court is there. Many things are on display on those days, but the sanctity of marriage isn’t one of them.