Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass. 2003)

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Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003), was a landmark state appellate court case dealing with same-sex marriage rights in Massachusetts.

Ruling

In a 50-page, 4-3 ruling delivered on November 18, 2003, the Massachusetts Supreme Judicial Court found that Massachusetts may not “deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry”Chief Justice Margaret Marshall, writing for the majority, wrote that the state’s constitution “affirms the dignity and equality of all individuals” and “forbids the creation of second-class citizens” and that the state had no “constitutionally adequate reason” for denying marriage to same-sex couples. On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the Court held that the State does not have a rational basis to deny same-sex couples from marriage on the ground of due process and equal protection. The court gave the legislature 180 days to change the law to rectify the situation.

Request for clarification

Because of the unusual nature of the 180-day period, and the requirement that the legislature rectify the situation (rather than the court issuing a specific order), some in the legislature advocated responding to Goodridge by creating a system of civil unions, like those in Vermont, but there was disagreement on whether this solution would satisfy the court’s mandate. The legislature responded to this lack of clear direction by taking the rare step of asking the Court to clarify its ruling. On February 4, 2004, the four-justice majority of the court responded to the request for clarification. Stating that “the history of our nation has demonstrated that separate is seldom, if ever, equal,” the court’s statement said that nothing short of equal marriage rights would be constitutional. Civil unions would, according to the court, create an “unconstitutional, inferior, and discriminatory status for same-sex couples.”
Political response
Republican Governor Mitt Romney responded by releasing a statement in support of a proposed amendment to the Massachusetts state constitution defining marriage as existing only between “one man and one woman” in order to overrule the court’s decision. His statement said, “the people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage.”

The legislature engaged in a contentious debate about how and whether to propose an amendment to the Massachusetts constitution in response to Goodridge. Some legislators wanted to create a system of civil unions, some wanted a ban on civil unions, some wanted a ban on same-sex marriage, and some wanted to do nothing (in other words, to allow the court’s decision to stand). A joint session of the Massachusetts legislature convened near the end of the 2003-2004 legislative session to discuss Goodridge. After a dramatic, sometimes chaotic, multi-sided debate, a narrow majority of legislators approved a compromise constitutional amendment proposal, prohibiting same-sex marriage but simultaneously creating a system of civil unions for same-sex couples. Massachusetts law requires that a legislative amendment be approved by a joint session in two consecutive sessions, and the same proposal failed during the 2005-2006 session [1], and hence was not put before voters in the November 2006 election.

During the same time period, citizens’ groups circulated petitions to propose an alternative constitutional amendment that would ban same-sex marriage without creating civil unions. However, that was also voted down (after an intense legislative battle) and there are currently no plans for opposing ballot initiatives.

Vermont Act 91

PERSONS

(a) A clerk shall not issue a civil union license when either party to the intended civil union is:

(1) under 18 years of age;

(2) non compos mentis;

(3) under guardianship, without the written consent of such guardian.

PARTIES TO A CIVIL UNION

(a) Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.

(b) A party to a civil union shall be included in any definition or use of the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” and other terms that denote the spousal relationship, as those terms are used throughout the law.

(c) Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.

(d) The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.

(e) The following is a nonexclusive list of legal benefits, protections and responsibilities of spouses, which shall apply in like manner to parties to a civil union:

(1) laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety (parties to a civil union meet the common law unity of person qualification for purposes of a tenancy by the entirety);

(9) workers’ compensation benefits;

(f) The rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.

Q. What countries currently allow same-sex registered partnerships / civil unions?
A. Denmark, 1989; Norway, 1996; Sweden, 1996; Iceland, 1996; France, 1999; Vermont, USA, 2000; Germany, 2001; Finland, 2002; Luxembourg, 2004; New Zealand, 2004; Connecticut, USA, 2005; Britain, 2005; New Jersey, USA, 2006; New Hampshire, USA, 2008; Oregon, USA, 2008.

The rights available to same-sex couples vary from country to country.
Q. What countries currently allow same-sex marriage?
The Netherlands, 2001; Belgium, 2003; Massachusetts, USA, 2004; Canada, 2005; Spain, 2005.
Q. Can anyone get married in these countries?
A. In both Canada and Belgium there are no restrictions regarding nationality.

There is a long residency requirement in the Netherlands.

Massachusetts has a resident only clause in their marriage law.
Q. Will these marriages be recognized in the United States?
A. For now, some legal experts are saying yes. They will be legally binding unions. Other experts are saying not necessarily, since states aren’t obligated to validate marriages from another locale.

ACT 21 same-sex marriage.

Registered partnerships

On 1 January 1998, registered partnerships (Dutch: geregistreerd partnerschap) were introduced in law in the Netherlands. These were meant for same-sex couples as an alternative to marriage, though they can also be entered into by opposite-sex couples, and in fact about one third of the registered partnerships between 1998 and 2001 were of opposite-sex couples. For the law, registered partnerships and marriage convey the same rights and duties, especially after some laws were changed to remedy inequalities with respect to inheritance and some other issues.
As early as the mid-eighties, a group of homosexual activists, headed by Henk Krol – then and now the editor-in-chief of the Gay Krant – asked the government to allow same sex couples to marry. Parliament decided in 1995 to create a special commission, which was to investigate the possibility of same-sex marriages. At that moment, the Christian Democrats for the first time since the introduction of full democracy weren’t part of the ruling coalition. The special commission finished its work in 1997 and concluded that civil marriage should be opened up. After the elections of 1998, the government promised to tackle the issue. In September 2000 the final legislation draft was debated in parliament.
The marriage bill obtained a majority of 109 against 33 votes in the Lower House of Parliament. The Upper House approved the bill on 19 December 2000. Only the Christian parties, which held 26 of the 75 seats at that time, voted against the bill. Though they are now the largest party in the present coalition (2006), the Christian Democratic Appeal has not shown the slightest inclination to repeal the law.

The main article in the Act changed article 1:30 in the existing marriage law (in the Civil Code) into:

Een huwelijk kan worden aangegaan door twee personen van verschillend of van gelijk geslacht.
(A marriage can be contracted by two people of different or the same sex)
At the stroke of midnight 1 April 2001, four same-sex couples were married by the Mayor of Amsterdam, Job Cohen. He specifically became a registrar to officiate the weddings. A few months before, Mayor Cohen was the junior minister of Justice in the Government and responsible for putting the new marriage and adoption laws through parliament.
Restrictions
Same-sex marriages are fully equivalent to opposite-sex marriages in the Netherlands with one restriction relating to adoption of children. If a woman in a same-sex marriage has a child, her wife will not count as the child’s father or mother; unless and until she adopts the child, she will remain under law a stepmother; on adoption, she will be the (second) mother. A law is now being prepared to remove this discrepancy.
Residency
The rules about nationality and residence are the same as for any other marriage in the Netherlands: at least one partner must either have Dutch nationality or reside in the country. There is no guarantee that a same-sex marriage will be recognized in other countries. It’s likely that they may only be accepted in countries that recognize civil unions for same-sex couples.
Netherlands Antilles and Aruba
It is not possible for same-sex couples to marry in the Netherlands Antilles (NA) or Aruba. Whether a Dutch same-sex marriage is recognized in the Netherlands Antilles and Aruba was unclear for a long time. The Aruban government initially refused, but a judge has ruled that it should. The Aruban government appealed, and in April 2007 the Dutch Supreme Court, which has also jurisdiction in the NA and Aruba, ruled that a Dutch same-sex marriage should also be recognized in the Netherlands Antilles and Aruba.

Malilong: Same sex marriage

By Frank Malilong Jr.
The Other Side

While dusting off the freshly cut hair that strayed to my neck, my barber, a.k.a. hairstylist, asked me if he could marry his boyfriend. I said no, the law says a marriage is a union between a man and woman only.
But he was insistent: “What if I’d undergo a sex change?” In that case, I replied, maybe you can since the law does not require the parties to a marriage to be natural-born man or woman. But, since neither the Civil Registrar, who issues the license, nor the officer, who solemnizes the marriage, is required to conduct a physical examination of the bride and the groom, you have to have your record of birth corrected to reflect your sex of choice.

That was almost 10 years ago and having had my haircut done by a “straight” barber since, I have lost contact with my one-time client. I do not know if he ultimately had his planned sex transplant and, if he did, whether he took my advice to petition the court to correct the entry in his record of birth from “male” to “female.”

In any event, I’m not too sure how the court would have acted on his petition; the signals have been conflicting. If I remember correctly, a Cebu court denied a plea by Wendy Mendoza to register him/herself as “female”. I heard, however, that a Makati court had granted a similar petition by the son of an industrialist after he underwent a successful sex transplant.

But do homosexuals really want to get married?

A dispatch from Amsterdam claims that same-sex marriage is floundering. “After the clamor to legalize same-sex marriage, it turns out that not many homosexuals really want it,” the report said.

The Netherlands legally recognized same-sex marriage in April 2001, the first country in the world to do so. Belgium followed suit in June 2003 about the same time that the Ontario Court of Appeals paved the way for same-sex marriage in Canada. Spain was the latest to recognize the right of homosexual marriage on July 3, last year.

As of May 31, this year, only 1,275 same-sex marriages took place in Spain, the report said, quoting ABC, a Madrid newspaper. The number constitutes barely 0.6 percent of the 209,125 marriages in the country in 2005. Significantly, 923 of the same-sex marriages were between males, compared to only 352 between females.

The same report cited a Dutch survey data that suggested that 2.8 percent of Dutch men and 1.4 percent of Dutch women are homosexuals. But from April 2001 to December 2005, only 8,127 same-sex marriages were recorded or roughly 6.3 percent of the country’s estimated homosexual population.

I read recently that gay rights advocates are banding themselves in preparation for next year’s party-list elections. If they plan to include same-sex marriage legislation in their platform, I suggest that they go over the statistics that show that homosexuals aren’t too hot about tying the knot after all.

In the few instances that they are, they should take the cue from my former barber: If you truly love each other, going through the knife and grilling by the judge will be nothing you can’t bear.

Marjorie JONES et al., Appellants, v. James HALLAHAN,

[Opinion by Vance].

The appellants, each of whom is a female person, seek review of a judgment of the Jefferson Circuit Court which held that they were not entitled to have issued to them a license to marry each other.

Appellants contend that the failure of the clerk to issue the license deprived them of three basic constitutional rights, namely, the right to marry; the right of association; and the right to free exercise of religion. They also contend that the refusal subjects them to cruel and unusual punishment.

The sections of Kentucky statutes relating to marriage do not include a definition of that term. It must therefore be defined according to common usage.

Webster’s New International Dictionary, Second Edition, defines marriage as follows:

“A state of being married, or being united to a person or persons of the opposite sex as husband or wife; also, the mutual relation of husband and wife; wedlock; abstractly, the institution whereby men and women are joined in a special kind of social and legal dependence, for the purpose of founding and maintaining a family.”

The Century Dictionary and Encyclopedia defines marriage as:

“The legal union of a man with a woman for life; the state or condition of being married; the legal relation of spouses to each other; wedlock; the formal declaration or contract by which a man and a woman join in wedlock.”

Black’s Law Dictionary, Fourth Edition, defines marriage as:

“The civil status, condition or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.”

Kentucky statutes do not specifically prohibit marriage between persons of the same sex1 nor do they authorize the issuance of a marriage license to such persons.

Marriage was a custom long before the state commenced to issue licenses for that purpose. For a time the records of marriage were kept by the church. Some states even now recognize a common-law marriage which has neither the benefit of license nor clergy. In all cases, however, marriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary.

It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.

A license to enter into a status or a relationship which the parties are incapable of achieving is a nullity. If the appellants had concealed from the clerk the fact that they were of the same sex and he had issued a license to them and a ceremony had been performed, the resulting relationship would not constitute a marriage.

This is a case of first impression in Kentucky. To our knowledge, only two other states have considered the question and both of them have reached the same result that we reach in this opinion. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65; Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499.

Baker v. Nelson considered many of the constitutional issues raised by the appellants here and decided them adversely to appellants. In our view, however, no constitutional issue is involved. We find no constitutional sanction or protection of the right of marriage between persons of the same sex.

The claim of religious freedom cannot be extended to make the professed doctrines superior to the law of the land and in effect to permit every citizen to become a law unto himself. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244. We do not consider the refusal to issue the license a punishment.

In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage.

The judgment is affirmed. All concur.

reposted from: www.legalmarriagealliance.org/freedom/docs/KY%20Jones%20v%20Hallahan.pdf