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On marriage, simple justice

The right to a marriage license is a matter not of morality or of religion or of ethics but of equality under the law. In the end, it was that simple.

While acknowledging that many people of deep personal conviction oppose the right of same-sex couples to marry, the Supreme Judicial Court made clear yesterday it is not a house of worship but a court of law. The plaintiffs had sought its judgment, not its blessing, and that is what they got.

In a historic decision, made more compelling by Chief Justice Margaret H. Marshall's powerful, spare prose, the state's highest court reduced the polarizing issue of gay marriage to the straightforward constitutional question before the justices. Could the Commonwealth use "its formidable regulatory authority to ban same-sex couples from civil marriage"? A divided court ruled, 4-3, that it could not.

"In short, for all the joy and solemnity that normally attend a marriage, governing marriage is a licensing law," Marshall wrote, separating the secular role of the state from the religious battles that have made gay marriage, like abortion before it, one of the most contentious social issues in the nation.

"Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral," the chief justice wrote. "Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us."

It was the civil, not the religious, contours of marriage that the court was asked to define. In doing so, a majority of the justices found no constitutional justification for denying to same-sex couples "the protections, benefits, and obligations of civil marriage" solely on the basis of their sexual orientation.

Marshall, who came of age in South Africa as a vocal opponent of apartheid, writes with the restrained passion of a woman who has fought one of the great civil rights struggles of our time. "The marriage ban," she writes, "works a deep and scarring hardship on a very real segment of the community for no rational reason."

The footnotes in the majority opinion read like a legal roadmap on the journey toward sexual privacy rights for all Americans. From the 1965 decision in Griswald v. Connecticut that struck down a criminal statute that prohibited the use of birth control to the 2003 ruling in Lawrence v. Texas that overturned Texas's sodomy laws, the US Supreme Court has moved toward defining sexual privacy as a fundamental liberty.

The Massachusetts Supreme Judicial Court could be expected to do no less. "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and is less tolerant of government intrusion into the protected spheres of private life," Marshall wrote.

Let that serve as notice to Thomas M. Finneran, the conservative House speaker and staunch opponent of same-sex marriage. His disregard of an SJC order to fund the Clean Elections Law last year was met with a passivity from the high court that is unlikely to be replicated if, as expected, he tries to thwart attempts to enact legislation to comply with yesterday's ruling.

Tradition and religious belief should command respect, Justice John M. Greaney wrote in his concurring opinion, "but as a matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families."


Eileen McNamara is a Globe columnist. She can be reached at

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