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Supreme Judicial Court rules civil unions aren't enough, same-sex couples entitled to marriage

BOSTON -- The Massachusetts high court ruled Wednesday that nothing short of gay marriage would pass constitutional muster, setting the stage for spring weddings by same-sex couples across the state.


The advisory opinion was issued about three months after the court's ruling that same-sex couples were entitled to all the benefits of marriage. The original ruling left many legislators, who were charged with codifying it into law, uncertain of what was expected of them.

Wednesday's ruling was more blunt and left no doubt: Vermont-style civil unions wouldn't go far enough to satisfy the court, only marriage would.

"The history of our nation has demonstrated that separate is seldom, if ever, equal," four justices wrote in the advisory opinion. "For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain. The (civil unions) bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits."

The much-anticipated opinion heightened the stakes for next Wednesday's Constitutional Convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman.

"We've heard from the court, but not from the people," Gov. Mitt Romney said in a statement. "The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

The soonest a constitutional amendment could end up on the ballot would be 2006, meaning that the nation's first gay marriage could take place in Massaschusetts as soon as this May regardless of what happens at the constitutional convention.

Senate President Robert Travaglini, who will preside over the constitutional convention, said he wanted time to talk with fellow senators before deciding what to do next.

"I want to have everyone stay in an objective and calm state as we plan and define what's the appropriate way to proceed," said Travaglini. "There is a lot of anxiety out there obviously surrounding the issue but I don't want to have it cloud or distort the discussion."

The White House called the ruling "deeply troubling" and said the administration would review it.

"Activist judges continue to seek to redefine marriage by court order without regard for the will of the people," said presidential spokesman Scott McClellan.

The right to same-sex marriage would be for state residents only, but the rules are unclear on how to establish residency in Massachusetts or how it even would be enforced.

At least one aspect of the case may still be subject to debate: Would marriages in Massachusetts have to be recognized legally in other states or by the federal government?

The federal government and 38 other states have enacted laws barring the recognition of any gay marriages in other jurisdictions. The Massachusetts court decision will likely lead to multiple lawsuits about whether gay marriage benefits can extend beyond the state's borders.

Seven same-sex couples sued in 2001 for the right to marry in Massachusetts. The Supreme Judicial Court ruled in November that gay couples have a constitutional right to marry, and gave the Legislature six months to change state laws to make it happen, paving the way for the nation's first gay marriage.

But almost immediately, the vague wording of the ruling left lawmakers -- and advocates on both side of the issue -- uncertain if civil unions would satisfy the court's decision.

The state Senate asked for more guidance from the court and sought the advisory opinion.

As part of its original ruling, the SJC said state law provided no "rational" basis for prohibiting same-sex couples from the benefits of marriage. Some lawmakers now say they will pursue legislation that would provide that basis in a state statute that would articulate specific reasons for barring gay couples from marriage.

The editor of Lawyers Weekly USA said, however, that any attempts to circumvent the decision would now be futile.

"The fat lady has sung and she's singing the wedding march," editor Paul Martinek said. "It's clear from reading the majority opinion that there's no basis on which the SJC will OK anything other than marriage."

Conservative leaders said they were not surprised by the opinion, and said they would redouble their efforts to pass the constitutional ban on same-sex marriages.

"This now puts the pressure back on the Legislature to do their job to protect and defend marriage for the citizens of the state to allow them to vote," said Ron Crews, president of the Massachusetts Family Institute, which has been leading the campaign.

Mary Bonauto, an attorney who represented the couples who filed the lawsuit, said she anticipated a fierce battle.

"I have no doubt that passions will be running high on this," Bonauto said. "But in the end, no matter what you think about the court's decision, it's always wrong to change the constitution to write discrimination into it. As the court noted, civil unions do not provide the same protections as marriage does and that's what families need."

While the legislative and legal battles are likely to continue for months and years to come, the advisory opinion gave at least one gay couple the peace of mind they needed to put down a nonrefundable deposit for a wedding -- a step which they previously were not confident enough to take.

"We're going to have to start looking for a band," said Ed Balmelli, one of the plaintiffs in the case who sued with his partner, Michael Horgan.

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The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.
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