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Before Obergefell, there was Goodridge: The birth of same-sex marriage in America

May 17, 2016 by Nicandro Iannacci


gay_marriage_protestOn June 26, 2015, the Supreme Court announced its decision in Obergefell v. Hodges, striking down state bans on same-sex marriage. The Court’s ruling almost immediately entered the pantheon of the greatest civil rights decisions in U.S. history.

Yet Obergefell wasn’t the first time an American court declared bans on same-sex marriage to be unconstitutional. Indeed, in the months after United States v. Windsor in 2013, dozens of federal courts did just that, prompting the Court’s review and affirmation.

But the first court to recognize a right of same-sex couples to be married was not, in fact, a federal court, but rather the Supreme Judicial Court of Massachusetts, whose landmark decision in Goodridge v. Department of Public Health went into effect on May 17, 2004.

Hard as it may be to imagine now, America’s political and legal landscape was much less friendly to the gay community in the early 2000s, though the tide appeared to be turning. Only a narrow majority of Americans were opposed to same-sex marriage; a similar majority felt homosexuality was “an acceptable alternative lifestyle.”

A decade earlier, legal advocates had claimed victory in Hawaii, where the state Supreme Court ruled in Baehr v. Lewin that Hawaii’s ban on same-sex marriage amounted to sex discrimination. That ruling was ultimately a symbolic one, however, after voters in 1998 approved a state constitutional amendment empowering the state legislature to ban same-sex marriage.

What’s more, Congress had passed the Defense of Marriage Act in 1996, defining marriage as between one man and one woman for purposes of federal law and exempting states from recognizing same-sex marriages performed in other states.

Still, two recent court decisions were energizing the movement. In 1999, the Vermont Supreme Court ruled in Baker v. Vermont that Vermont’s constitution required that same-sex and opposite-sex couples have access to the same benefits, rights, responsibilities and duties associated with marriage. And in 2003, the Supreme Court ruled in Lawrence v. Texas that sodomy laws were unconstitutional, explicitly overruling its 1986 decision in Bowers v. Hardwick.

It was from this tumultuous history that the Massachusetts lawsuit emerged, brought by seven gay and lesbian couples including Julie and Hillary Goodridge. They argued that exclusion from the institution of marriage violated guarantees of equality and liberty provided by the Massachusetts constitution. They also echoed Baker, pointing out that state benefits afforded to straight couples were rendered inaccessible to gay couples.

The Supreme Judicial Court agreed, ruling on November 18, 2003, that “the marriage ban does not meet the rational basis test for either due process or equal protection” and therefore was unconstitutional.

“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others,” it said. “This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships.”

Chief Judge Margaret Marshall, writing for a 4-3 majority, explained the decision:

Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. ‘It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.’ Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition. …

It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a ‘civil right.’ …

Without the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed commitment to an intimate and lasting human relationship.’ Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual’s right to marry against undue government incursion. …

That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.

“This is a very, very big day; it’s obviously a historic day,” said Mary Bonauto, the attorney with Gay and Lesbian Advocates and Defenders who argued the case, in a press conference that afternoon. “It is a historic day because finally all families in the Commonwealth of Massachusetts will have the opportunity to be equal families under the law.” (In a poignant nod to history, Bonauto was one of two attorneys to argue for the plaintiffs in Obergefell at the Supreme Court.)

Yet the fight wasn’t over. Just hours after the decision was announced, then-Gov. Mitt Romney called for a state constitutional amendment to overturn the decision. Attorney General Tom Reilly alternatively suggested that, because the court had postponed its decision for six months, it was signaling openness to a compromise like civil unions legislation.

But on February 11, 2004, the Supreme Judicial Court slammed the door. “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 court explained in an advisory opinion.

“The history of our nation has demonstrated that separate is seldom, if ever, equal,” it said.

Still, opponents didn’t give up. Romney twice requested a stay of the court’s decision, pending further debate over a constitutional amendment, but he was twice denied. Four separate lawsuits were also filed, seeking immediate injunctions to block the issuance of marriage licenses to same-sex couples, but they, too, were denied.

“All told, I see it as a positive step,” said Michael Adams, director of education and public information for Lambda Legal, a year after Goodridge was handed down. “No civil rights step happens without a backlash. We knew it, expected it.”

More important, he said, “the Goodridge decision let America for the first time see many same-sex couples getting legally married.”

Nicandro Iannacci is a web strategist at the National Constitution Center.

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