SJC peppers lawyers on same-sex marriage

By Kathleen Burge, Globe Staff, 3/5/2003


The justices of the state's highest court yesterday plunged into the debate about whether women can legally marry women and men can marry men, vigorously questioning lawyers on both sides of a lawsuit seeking the right to same-sex marriage.

The lawyer for seven gay and lesbian couples who hope to make Massachusetts the first state to sanction same-sex marriage was just a minute into her argument when she was interrupted with questions from the justices.

''Why should we do something that virtually no other state has done?'' Justice Judith Cowin asked.

''This court should do so because it is the right thing to do,'' said the lawyer, Mary Bonauto. ''The exclusion of the plaintiffs from marriage . . . violates the fundamental right that these plaintiffs enjoy with all others in this commonwealth.''

Plaintiffs in the challenge to Massachusetts marriage laws listened to oral arguments at the Supreme Judicial Court yesterday. In front row (from left) were Julie and Hillary Goodridge of Boston and Linda Davies and Gloria Bailey of Orleans. Behind them were Heidi Norton and Gina Smith of Northampton and Gary Chalmers and Richard Linnell of Whitinsville.  (Globe Pool Photo)

During the half-hour hearing, the justices pummeled the lawyers with questions about the purpose of the state's marriage laws, the role of the court, and an earlier court decision allowing gay couples to adopt children. One justice questioned whether legalizing gay marriage would also allow polygamy.

Justice Roderick Ireland questioned Bonauto about arguments from state lawyers who say the question of sanctioning same-sex marriage belongs with legislators.

''Why do you think that this is an issue that we should decide?'' Ireland asked.

''I think it's an issue this court should decide because it's the institutional obligation of this court to decide constitutional issues,'' Bonauto answered.

Justice Martha Sosman questioned whether allowing same-sex marriage would also allow polygamy. ''What would the difference be?'' she asked.

Bonauto said that neither the Legislature nor the state's highest court has ever suggested that marriage should be made up of more than two people.

The couples' lawyer and other same-sex marriage supporters argue that the state constitution's protections of equality and liberty allow citizens to choose whom they want to marry.

The state attorney general's office, which is defending the state's right to deny marriage licenses to same-sex couples, argues that the state constitution doesn't provide such rights.

Yesterday, Justice John Greaney asked Assistant Attorney General Judith Yogman whether she saw the same paradox he did in allowing same-sex couples to adopt children, but not to marry each other. ''Are those ideas somewhat at odds?'' he asked.

''Not at all, your honor,'' Yogman said. ''Adoption is one thing. Marriage has many other responsibilities and benefits associated with it other than child-rearing.''

Did she agree, he asked, that the modern definition of family has ''gone far beyond the notion of two heterosexual people married and having children?''

Yes, Yogman said, but that still didn't establish a constitutional right to same-sex marriage.

The justices' ruling will probably not come down for at least several months.

More than 200 people turned out to hear the arguments, packing the courtroom and spilling over into the hallway. The morning unfolded calmly, without protests or pickets.

The case has attracted national attention, with dozens of groups on both sides of the issue weighing in with friend-of-the-court briefs. Some religious groups argued that same-sex marriage is immoral; local and state bar associations supported the seven couples; and law professors turned in legal briefs on both sides of the debate.

The state that has come closest to same-sex marriage is Vermont. After a similar legal case there, the Vermont Supreme Court ruled in 1999 that the state constitution guarantees gay and lesbian couples the same benefits and protections given to heterosexual couples. The state's Legislature, faced with a choice of allowing gay marriage or a similar domestic partnership, created civil unions that bring many of the same benefits of marriage but aren't recognized beyond that state.

The Massachusetts case began two years ago, when the seven couples sought marriage licenses and were rejected. They lost their first court battle, when Suffolk Superior Court Judge Thomas E. Connolly dismissed their case, saying the Legislature should decide the question. Bearing children has long been considered central to marriage, and same-sex couples alone cannot create children, he wrote in his decision.

The seven couples appealed, and the SJC agreed to hear the case. The case will determine only whether the state sanctions civil same-sex marriage; if the seven couples prevail, churches would still decide whether to marry same-sex couples.

For supporters of same-sex marriage, yesterday was a day of hope. After the arguments, some supporters hugged each other and Bonauto's voice trembled when she spoke to reporters.

''This is a historic day in Massachusetts,'' she said, as supporters cheered and clapped. ''The seven plaintiff couples had their day in court. Their families are equal families in this Commonwealth. They should have the same rights as all other families enjoy.''

The 2000 Census found more than 17,000 families in Massachusetts living in same-sex households, she said. As Bonauto spoke, the seven same-sex couples stood behind her.

''For 32 years, I've loved Gloria and wanted to marry her,'' said Linda Davies of Orleans, about her partner, Gloria Bailey. ''And I think after today, I'll finally get to do that.''

Gina Smith and Heidi Norton of Northampton, two other plaintiffs in the lawsuit, say they always try to keep with them copies of their health care proxies, legal papers that give each the right to make decisions for the other if one of them should become ill or incapacitated. Otherwise, hospitals could refuse them access to each other since the two women, the parents of two young boys, are not legally related.

''But even that big stack of documents,'' Norton said, ''does not feel like it has the weight of a single word: marriage.''



Kathleen Burge can be reached at


This story ran on page A1 of the Boston Globe on 3/5/2003.

Copyright 2003 Globe Newspaper Company.