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With the nation watching, due to the national implications of the case known as Goodridge vs. Dept. of Public Health, the Justices grilled opposing attorneys with provocative questions and left all those attending uncertain of the potential outcome. A decision isn't expected until the summer.
The seven plaintiff couples were represented in court by Mary Bonauto, civil rights project director for the Boston-based Gay and Lesbian Advocates and Defenders (GLAD). The state was represented by Assistant Attorney General Judith Yogman. Both attorneys were allowed 15 minutes to speak.
The justices grilled Bonauto on whether the definition of marriage is best decided in the courts or the state Legislature, and they grilled Yogman on whether the state has any compelling reasons to prohibit same-sex couples from marriage and its related benefits.
The plaintiffs are Julie and Hillary Goodridge; David Wilson and Robert Compton; Gloria Bailey and Linda Davies; Richard Linnell and Gary Chalmers; Maureen Brodoff and Ellen Wade; Gina Smith and Heidi Norton; and Ed Balmelli and Michael Horgan.
Bonauto makes her case
"The plaintiffs stand before this court seeking nothing more and nothing less than the same respect under our laws and Constitution as all other people enjoy, the same liberty right to marry the person of their choice," Bonauto told the SJC. "They work; they raise children; they volunteer in their communities. Everyone is aging; everyone is older, but some are also facing illness and the pressures of retirement but because they can not get married, they have added burdens. They are locked out of a precious right."
Justices questioned Bonauto on why the court is the best avenue to change the definition of marriage and not the Legislature. Bonauto responded that she is not asking the court to change the definition of marriage but to rule that same-sex couples should be eligible to marriage under the existing marriage statutes because they meet all the same criteria of marriage as their heterosexual counterparts.
"We are simply asking this court to engage in a very familiar process, which is reviewing a statute and deciding whether or not that statute transgresses constitutional limitations. State courts and federal courts both have reviewed limitations on marriage having to do with race, having to do with poverty, having to do with incarceration, Bonauto said.
The Justices referenced pending legislation in Massachusetts that could also decide the matter: one bill that would prohibit gay couples to marry; one bill that would extend marriage-like benefits to gay couples under a new category called civil unions; and a proposed constitutional amendment that would bar gay couples from marriage and its related benefits.
"In an ideal world, we should be able to get the people of Massachusetts to vote on this," commented one Justice.
Bonauto confirmed that the earliest a constitutional amendment could go to voters would be 2006, and she said allowing gay couples to marry in the interim could show the commonwealth how doing so would benefit all couples."
Even in a worst case scenario, we are talking about three years in this commonwealth of married couples. By the end of those three years, people would see that nothing has been taking away from them "but these other families that have now been allowed to marry have been strengthened, and that's good for the community as a whole," she said.
Another Justice then made reference to GLAD‚s similar case in Vermont, which resulted with that state setting up an alternative system to marriage called civil unions that extends marriage-like benefits to gay couples. He noted that Vermont‚s landmark decision did not create the national firestorm predicted by gay marriage opponents. "Presumably if you win, this would not either," he added.
Bonauto agreed, adding that marriage is what the plaintiffs are asking for "not civil unions. "The Vermont approach is not the best approach for this court to take. One of the most important protections of marriage is the word because the word is what conveys the status that everyone understands is the ultimate expression of love and commitment, and everyone understands that spouse of yours has an automatic right to be by your side, no matter what the circumstances," she said. "Creating a separate system just for gay people simply perpetuates the stigma of exclusion that we now face."
Discussion then went into comparisons of how today‚s ban on gay marriage relates to the overturned ban on inter-racial marriages. Bonauto said both violate equal protection rights.
But one Justice then asked Bonauto to clearly distinguish the difference between same-sex couples asking for their right to marry and polygamous relationships in which a third consenting adult may want to be designated marriage rights.
"Among other things, I feel like the issue in this case is 'What excuse is there for carving only gay people off from their right to marry?'‚" Bonauto replied, while noting that polygamy laws remain in the books.
"The plaintiffs are simply asking this court to provide constitutional principles to them that apply to everyone else. This exclusion is not good for the plaintiffs; it is not good for the commonwealth as a whole, and ending it would be good for these plaintiffs and for the commonwealth as a whole," she said.
Justices grill state attorney
"The question before the court today is whether the Massachusetts Constitution requires the Commonwealth to permit same-sex couples to marry," Yogman began her comments to the court.
She was quickly asked by one Justice whether the question could also be framed as one about whether the state should restrict marriages to gay couples. Yogman replied, "That could be another way of framing the question. My point though is that what is not an issue is whether permitting same-sex couples their right to marry is good public policy"
Yogman also conceded that "The plaintiffs and their amice have made strong public policy reasons why it would be a good idea to extend marriage to same-sex couples," and that the question before the court was in relation to civil marriage, not religious marriage.
One Justice asked Yogman to clarify how she chooses to define family. "How do you reconcile, what to me is a paradox, that the state acknowledges that same-sex couples with children who are permitted obviously to adopt constitute a family, but they don‚t constitute a family for purposes of being married? Are those ideas somewhat at odds?" he asked. "You would agree that the idea of family has gone far beyond the notion of two heterosexual people marrying and having children."
"That is correct, but there has never been a suggestion that there was a constitutional right to that," Yogman replied. "The plaintiffs in this case have all the benefits associated with child-rearing. They have all the rights of parents as parents, and the children have all the rights of children."
Yogman was then asked for compelling reasons to restrict marriages to gay couples.
"The most important justification is that limiting marriage to opposite sex couples further this state‚s interest in fostering the link between marriage and procreation," she said. "Marriage, procreation and child rearing are all related. The idea is the Legislature could conceivably believe that encouraging same-sex couples to marry would not be a beneficial thing in terms of child-rearing because an optimal setting for child rearing and procreation is a family where there are one parent of each sex because mothers and fathers each make unique contributions to the upbringing of a child."
But one Justice countered her remarks. "A lot of people would say the contemporary view of marriage is a partnership, from which a lot of benefits flow," he said. Yogman replied, "The reason economic benefits are conferred upon married couples is to encourage this setting for procreation and child-rearing; it‚s not the other way around."
Yogman also argued the Massachusetts Equal Rights Amendment was "intended to prohibit burdening one sex over another, and it was not intended nor understood to require same-sex marriage."
Plaintiff couples speak
All the plaintiffs observed the 30-minute hearing and then spoke at a press conference, along with Bonauto.
"This was a historic day in Massachusetts. Seven plaintiff couples had their day in court to say that their families deserve the same rights and legal protections that heterosexual families have," Bonauto said at the press conference. "It was a great honor to argue this case in Massachusetts, a state that has led the way to protect gay and lesbian families."
Bonauto said she believed the Justices asked fair and thorough questions on both sides of the issue and were very engaged in the discussion. The plaintiffs were encouraged but uncertain of the outcome.
"For 32 years, I've loved Gloria and I've wanted to marry her. I think after today, I will be able to," Davies said.
But lead plaintiff Julie Goodridge told Bay Windows she was careful not to be too optimistic. "It's too hard to know what will happen. We felt very positive coming out of the lower court hearing, and then we lost, so it's hard for us to draw any conclusions," she said.
The suit was first filed in Suffolk Superior Court in April 2001. The trial court ruled against the plaintiffs in May 2002, and the SJC accepted the case for a direct appellate review.
Lead plaintiff Hillary Goodridge, Julie‚s partner, said she was "incredibly excited" by the March 4 hearing and that Bonauto was "brilliant" in her presentation. "The SJC asked insightful and appropriate questions, and I am hopeful they will rule in our favor," she said.
Only one visible gay marriage opponent was at GLAD‚s press conference: Joshua Baker, staff attorney for the Marriage Law Project. "Our group is designed to defend marriage as being between one man and one woman," Baker told Bay Windows. "I think the court was engaged in the discussion, but it's really difficult to get any implication on how they will rule."
Responding to media questions about the marriage bills now pending in the state Legislature, Bonauto said, "This is a civil rights movement. The presence of these bills in the Legislature does not mean our case does not belong in court."
Bonauto also said the state showed no compelling interest in restricting marriage to heterosexual couples. "There is no way to wrestle out of the marriage, annulment and divorce statutes any requirement for procreation," she said.
Plaintiffs Wilson and Compton told Bay Windows they also believed the state's arguments fell flat. "The procreation issue raised by the defense got a lot of holes shot right through it because most of the couples who are plaintiffs already have families," Wilson said.
Linnell and Chalmers, proud parents of a 10-year-old girl, agreed. "The state's argument was very weak," Chalmers said. "Rich and I are raising a 10-year-old daughter and we are a family. We want to give our daughter the same protections as any other family."
Currently, no state nor the federal government recognizes the right of same-sex couples to marry. The 1996 federal Defense of Marriage Act (DoMA) defines marriage as between one man and one woman for purposes of federal laws and programs. Statewide DoMA bills have been passed in 36 states. If the SJC rules in favor of the plaintiffs, Massachusetts could be used as a test state for others to overturn their DoMA laws.
Scott A. Giordano is a staff writer at Bay Windows. His e-mail address is sgiordano@baywindows.com .
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