10th Anniversary: The pivotal decision that ‘marks a change’ in a movement toward marriage equality


Margaret Marshall

It was not the start of the marriage equality movement, but it has proven to be its watershed moment: November 18. And this year marks the 10th anniversary of the landmark marriage equality decision from the Massachusetts Supreme Judicial Court.

Goodridge was a rather quiet and somewhat rocky start for the marriage equality movement. Its predecessor lawsuits had mostly failed. The lawsuit brought in 1972 by a gay male couple in Minnesota to the U.S. Supreme Court had been summarily dismissed and left wreckage that some would use to claim any future legal challenge was already settled law. Baehr v. Lewin, in Hawaii in the 1990s, advanced the cause but triggered a political backlash that not only banned licenses for same-sex marriage in that state but federal recognition of marriage licenses by any state. Similarly, Baker v. State in Vermont in 1999 won a state supreme court victory but was hobbled by a legal loophole that enabled the legislature to deliver marriage benefits to same-sex couples through an alternative scheme, civil unions.

Goodridge began in a state that had not passed a ban on allowing same-sex couples to marry. In fact, when Gay & Lesbian Advocates & Defenders (GLAD) arranged for a carefully selected group of same-sex couples to go to their local clerk’s office and apply for a marriage license, only five states had passed state constitutional bans.

Still, even without an explicit ban in place, each of the couples that applied in Massachusetts was denied a license. And on April 11, 2001, GLAD filed its lawsuit, Goodridge v. Department of Public Health, named after one of the couples, Julie and Hillary Goodridge.

A year later, a superior court judge dismissed the lawsuit. His reasoning? Just because the state constitution says a citizen has a right to marry “the person of one’s choice,” he wrote, doesn’t mean they have the “right to marry a person of the same sex.”

GLAD appealed directly to the state’s highest court, headed up by a chief justice who had been appointed to the court by one Republican governor and elevated to the top position by another. In fact, recalls GLAD civil rights director Mary Bonauto, who led and argued the case, six of the seven Supreme Judicial Court (SJC) justices were Republican appointees.

“We made the best case we could and didn’t see it as breaking on partisan lines,” said Bonauto. “We had been in front of that court as parties and amici on other issues and believed we would get a fair hearing.”

Chief Justice Margaret Marshall, like many Republican-appointed judges, did not fit a strictly conservative profile. She knew first-hand about discrimination. She immigrated to this country from South Africa (and still has the accent today). Her prominent participation in anti-apartheid activities in her homeland had made her a target for police surveillance. Many of her peers were jailed, exiled, or executed.

For a 4 to 3 majority, Marshall wrote the Goodridge decision and issued the opinion on November 18, 2003. The opinion said the Massachusetts constitution requires the government provide same-sex couples the “protections, benefits, and obligations conferred by civil marriage.”

Four years earlier, the Vermont Supreme Court said the state had to provide same-sex couples the “common benefits and protections that flow from marriage” but left to the legislature whether this “takes the form of inclusion within the marriage laws themselves or a parallel ‘domestic partnership’ system or some equivalent statutory alternative.” It gave the legislature some time to come up with a plan and, four months later, the legislature passed a law allowing same-sex couples to apply for “civil unions.”

The Goodridge decision gave the Massachusetts legislature 180 days “to take such action as it may deem appropriate in light of this opinion.” Some quickly tried to argue that Goodridge was taking the same approach as Baker v. State in Vermont. But others noted that the Marshall opinion did not offer the legislature an opportunity to provide some “parallel” or “alternative” scheme through which to deliver equal benefits. Instead, it stated, “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

Chief Justice Marshall, who has since retired from the bench, declined to say why the decision gave the legislature six months to comply with the ruling. (She stated only that it is “not the work of a judge” to “anticipate how the litigants or any others will respond to an opinion.” And she said she does not “comment on aspects concerning the wording of any opinion.”)

Most legal observers interpreted the ruling to mean that the court was giving the legislature time to amend whatever statutes and application forms it needed to in order to comply. Under pressure from Republican Governor Mitt Romney, the Massachusetts senate rushed through a bill that would create a civil unions scheme, like Vermont’s. The senate then asked the Supreme Judicial Court for an “advisory opinion” as to whether that civil union scheme might pass constitutional muster. In a 4 to 3 advisory opinion, the SJC said it would not.

“The very nature and purpose of civil marriage … renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage,” said the advisory.

Romney filed an emergency bill with the legislature, seeking a stay of the SJC decision and even pushed for a constitutional amendment to bar marriage licenses for same-sex couples. All failed.

Beyond the ruling and its immediate, local impact, the decision ignited a fire in the LGBT community and its allies. It renewed the community’s faith in the rule of law and the constitutional promise of equal protection. And it triggered pushback so fierce that, for a while, the final outcome for LGBT people around the country was unpredictable.

Two months after the Goodridge decision was issued, then President George W. Bush used his State of the Union address to warn that “activists judges…have begun redefining marriage by court order.”

“If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process,” said Bush. “Our nation must defend the sanctity of marriage.”

That comment compelled San Francisco’s newly sworn-in Mayor Gavin Newsom, on February 12, to direct the city clerk to begin issuing marriage licenses to same-sex couples even though a state law prohibited it.

Then U.S. Rep. Barney Frank (D-Mass.) warned Newsom that the idea might have negative repercussions for the community, especially in Massachusetts, where Romney was trying to organize forces to amend the state constitution to thwart the Goodridge decision. Romney penned an op-ed for the Wall Street Journal urging governors in all states to “explore” amending their state constitutions.

By the end of 2004, 13 new states had amended their state constitutions to explicitly bar same-sex couples from either obtaining marriage licenses or from being recognized as married if they obtained the marriage license in another state or country. It was not just because of the Goodridge decision or Romney’s op-ed, but was in part as a strategy by Republican political operatives to get-out-the-vote among their conservative base. And for a while, it worked. In 2005 and 2006, another 10 passed constitutional amendments; and between 2008 and 2012, five more did.

But the Goodridge decision itself stuck. It went into effect in May 2004, and it began resonating with judges and justices around the country who were being presented with the same constitutional question for their own states. That same month, in fact, the California Supreme Court quoted Goodridge almost a dozen times in ruling that the California constitution guarantees same-sex couples the same rights as male-female couples to marry. Later that same year, the Connecticut Supreme Court quoted Goodridge several times in striking down a Connecticut statute barring marriage. And in the past 10 years, the Goodridge decision has been cited in 99 court rulings, including the U.S. Supreme Court’s landmark decision striking down the Defense of Marriage Act (DOMA) last June. It has also been cited in more than 300 legal briefs, in such historic challenges as the California Proposition 8 case before the U.S. Supreme Court and similar lawsuits all over the country, including those proceeding today toward striking down bans in more than 20 other states.

“The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason,” wrote Marshall near the end of the Goodridge decision. “The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.”

Marshall then quoted from an opinion written by U.S. Supreme Court Chief Justice Warren Burger, an appointee of Republican President Richard Nixon, in a decision upholding the right of a white mother to retain custody of her child, even though the mother “was cohabiting with a Negro.” It was a stunning choice to quote, given that it was Burger’s court that issued the 1986 decision upholding laws prohibiting intimate relations between same-sex partners. And it was Burger’s concurring opinion in that case, Bowers v. Hardwick, that had expressed so much disdain for gay people.

“The Constitution cannot control such prejudices but neither can it tolerate them,” Marshall quoted from the Burger opinion in Palmore v. Sidoti. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

Most often quoted from Marshall’s Goodridge decision, however, at least anecdotally, are its opening lines, used by many same-sex couples as a reading during their wedding ceremonies.

“Marriage is a vital social institution,” it reads. “The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

“We are mindful that our decision marks a change in the history of our marriage law,” continued Marshall. But the exclusion of same-sex couples from civil marriage, she wrote, “is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”

One Response to 10th Anniversary: The pivotal decision that ‘marks a change’ in a movement toward marriage equality

  1. There is no good reason to deny that we must keep evolving until an adult, regardless of gender, sexual orientation, monogamy or polyamory, race, or religion is free to marry any and all consenting adults. The limited same-gender freedom to marry is a great and historic step, but is NOT full marriage equality, because equality “just for some” is not equality. Let’s stand up for EVERY ADULT’S right to marry the person(s) they love. Get on the right side of history!

Leave a Reply