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Mary Bonauto, an attorney with the Gay & Lesbian Advocates & Defenders, who argued Massachusetts’ gay-marriage case on behalf of seven same-sex couples
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Mass. court could make history with gay marriage ruling
Mass. high court justices have history of auspicious rulings on GLBT issues
Published Thursday, 07-Aug-2003 in issue 815
BOSTON (AP) — The president and the pope may have their opinions about gay marriage, but it’s the seven relatively obscure judges on Massachusetts’ highest court who may write the next chapter in the debate about whether same-sex couples should be allowed to wed.
The Massachusetts Supreme Judicial Court has had a history of extending broad parental rights to gay couples — leading to speculation that the court could become the first in the country to legalize same-sex marriage.
A decision could come soon in a lawsuit filed by seven gay couples who want the court to force the state to give them marriage licenses. The case has drawn national attention amid mounting predictions that the first American gay marriages could soon come to pass.
“I think it’s a realistic prediction because of the nature of the court in Massachusetts,” said Paul Martinek, editor of Lawyers Weekly USA, a national legal newspaper. “It’s a court on which even the conservative judges aren’t that conservative.”
In a landmark 1993 case, the Massachusetts high court allowed a lesbian to adopt her partner’s biological child, ruling that the right to adopt children could not be denied on the basis of sexual orientation.
Six years later, the court gave visitation rights to a lesbian’s former partner, ruling that a lesbian who helped her partner raise her son was a “de facto” parent of the child and had a right to visit the child after the couple had broken up.
“This court has seen gay people as individuals and litigants,” said attorney Mary Bonauto, of Gay & Lesbian Advocates & Defenders, who argued the gay-marriage case on behalf of the seven couples. “This court knows that we are out there.”
If the court legalizes gay marriage, making the state a Mecca for couples seeking to solidify their commitment, the legislative and legal response is expected to be strong and immediate.
“I think all eyes are upon this court,” said Connie Mackey, vice president of government affairs for the Family Research Council, a right-wing group opposed to gay marriage. “It’s the next milestone in the battle.”
Opponents of gay marriage have said they would ramp up their campaign for a state constitutional amendment that would define marriage as a union between one man and one woman.
President Bush said recently that he’s considering steps to strengthen the federal definition of marriage as a union between a man and a woman (see story, previous page), while the Vatican urged Catholics and non-Catholics to unite in campaigning against gay marriages and gay adoptions.
The papal and presidential pronouncements come after a summer that saw two Canadian courts rule in favor of gay marriage and the U.S. Supreme Court protect the privacy of gay couples in the bedroom.
In Massachusetts, changing the constitution would be a lengthy process, requiring two votes by successive Legislatures and the support of voters. The earliest it could appear on the ballot for a popular vote is November 2006.
If the court legalizes gay marriage, same-sex couples married in Massachusetts could take legal steps to challenge the “Defense of Marriage” laws — that block the recognition of gay marriage — on the books in 37 states.
The federal Defense of Marriage Act, approved in 1996, also would likely face legal challenge from gay partners seeking the federal benefits of married couples.
Under its internal guidelines, Massachusetts’ high court was scheduled to issue a decision by July 14, but failed to meet that deadline. Lawyers on both sides are expecting an answer any day.
The court could rule several different ways.
It could take the unprecedented step of ordering the state to issue marriage certificates to the seven couples who filed the suit. It could follow the lead of the Vermont courts, which stated that it was unconstitutional to deny gay couples the rights and benefits of marriage, but left it to the Legislature to come up with a solution.
Or it could find that nothing in the law requires the state to recognize gay marriage.
Theories abound about what the delay in the court’s decision means. According to Martinek: “The longer they wait, the more likely it is there’s going to be a favorable outcome for the plaintiffs.”
State Rep. Philip Travis, a Democrat who opposes same-sex marriage, disagrees: “The longer they wait, the more likely they’re going to look to the state Legislature and the people to decide.”
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