'Separate is seldom. . . equal'
The following are excerpts from yesterday's advisory opinion by the Supreme Judicial Court.
Majority opinion
We have now been asked to render an advisory opinion on Senate No. 2175, which creates a new legal status, "civil union," that is purportedly equal to "marriage," yet separate from it. The constitutional difficulty of the proposed civil union bill is evident in its stated purpose to "preserv[e] the traditional, historic nature and meaning of the institution of civil marriage."
. . . Preserving the institution of civil marriage is of course a legislative priority of the highest order, and one to which the Justices accord the General Court the greatest deference. We recognize the efforts of the Senate to draft a bill in conformity with the Goodridge opinion. Yet the bill, as we read it, does nothing to "preserve" the civil marriage law, only its constitutional infirmity. This is not a matter of social policy but of constitutional interpretation. As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community, especially its children. The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples . . . from entering into civil marriage.
The same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, Senate No. 2175. . . . The history of our nation has demonstrated that separate is seldom, if ever, equal. . . .
The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. The denomination of this difference by the separate opinion of Justice Sosman (separate opinion) as merely a "squabble over the name to be used" so clearly misses the point that further discussion appears to be useless. . . .
We are well aware that current Federal law prohibits recognition by the Federal government of the validity of same-sex marriages legally entered into in any State, and that it permits other States to refuse to recognize the validity of such marriages. The argument in the separate opinion that, apart from the legal process, society will still accord a lesser status to those marriages is irrelevant. Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling.
That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists is not a reason to insist on less than the Constitution requires.
Margaret H. Marshall
John M. Greaney
Roderick L. Ireland
Judith A. Cowin
Opposing view
In response to the court's invitation to submit amicus briefs on this question, we have received, from both sides of the issue, impassioned and sweeping rhetoric out of all proportion to the narrow question before us. Both sides appear to have ignored the fundamental import of the proposed legislation, namely, that same-sex couples who are civilly "united" will have literally every single right, privilege, benefit, and obligation of every sort that our State law confers on opposite-sex couples who are civilly "married."
Under this proposed bill, there are no substantive differences left to dispute -- there is only, on both sides, a squabble over the name to be used. The insignificance of according a different name to the same thing has long been recognized. . . .
There is, from the amici on one side, an implacable determination to retain some distinction, however trivial, between the institution created for same-sex couples and the institution that is available to opposite-sex couples. And, from the amici on the other side, there is an equally implacable determination that no distinction, no matter how meaningless, be tolerated. As a result, we have a pitched battle over who gets to use the "m" word. . . .
Today's question presents the court with the diametric opposite of the statutory scheme reviewed in Goodridge. Where the prior scheme accorded same-sex couples (and their children) absolutely none of the benefits, rights, or privileges that State law confers on opposite-sex married couples (and their children), the proposed bill would accord them all of those substantive benefits, rights, and privileges. . . .
What conceivable purpose is served by retaining a different title for their respective licensing schemes? The problem, however, is simple: it is beyond the ability of the Legislature -- and even beyond the ability of this court, no matter how activist it becomes in support of this cause -- to confer a package of benefits and obligations on same-sex "married" couples that would be truly identical to the package of benefits and obligations that being "married" confers on opposite-sex couples.
That . . . stems from the fact that, Goodridge notwithstanding, neither Federal law nor the law of other States will recognize same-sex couples as "married." . . .
Martha B. Sosman
Francis X. Spina
