Features

Critical links: Understanding the Massachusetts same sex marriage campaign within the broader civil rights movement

by Terra Slavin, Legal Intern at the Lesbian and Gay Equality Project, from Northeastern School of Law.

Originally published: 9 November 2004.

In 1954 the U.S. Supreme Court in the unanimous decision of Brown v. Board of Education, determined that separate, was seldom, if ever equal, when it decided that the state of Kansas could no longer justify segregated schools for white and black children.¹ This decision is arguably the most important civil rights case in U.S. history as the desegregation of public schools across the country set the stage for the future litigation that would seek to establish legal equality on the basis of race at a time when bathrooms, busses, and hospitals were segregated and de facto racial oppression was rampant in all areas of the United States. This last May, the state of Massachusetts became the first State in the United States to begin issuing legally recognized marriage licenses to same sex couples following the Massachusetts Supreme Court decision in Goodridge v. Dept of Public Health,² which was subsequently affirmed in Opinions of the Justices to the Senate.³ This historic event, which took place on the 17 May 2004, coincided with the 50th anniversary of the decision of Brown v. Board of Education. Whether it was coincidence or calculated, the Supreme Court of Massachusetts throughout its decisions undoubtedly recognized that the right to marry the person of one choice irrespective of their sex was both fundamental to achieving equality for homosexual persons and intrinsic to the greater civil rights struggle of achieving equality for everyone. This article seeks to locate the Goodridge decision within the larger civil rights framework and to discuss the critical importance of this connection if the decision is to survive in the face of extreme opposition.

In Goodridge, seven same-sex couples from across Massachusetts who were denied civil marriage licenses to enter into marriage with a person of the same sex, brought a lawsuit challenging the statute regulating the issuance of licenses on the grounds that it violated both the equality and due process provisions of the Massachusetts Constitution.⁴ Ultimately, the question before the Court was 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.⁵" The Commonwealth of Massachusetts offered three legislative rationales for prohibiting same sex marriage which included: "1) providing a favourable setting for procreation; 2) ensuring the optimal setting for child rearing which the department defines as a two-parent family with one parent of each sex, and 3) preserving scarce State and private financial resources."⁶ While not getting into detail, each of the arguments was in turn rejected by the Court. What is consequential for this paper's analysis is the way that the justices linked their decision in both Goodridge and it predecessor to previous civil rights cases challenging racial inequality.

First, Goodridge's determination that homosexuals have the right to marry the partner of their choice relies on the historic precedent of the 1967 Loving v. Virginia decision.⁷ In Loving, the U.S. Supreme Court dismissed the state of Virginia's argument that the state's bar to inter-racial marriages did not violate fourteenth amendment guarantees of equality and due process as it applied equally to white and black persons.⁸ In doing so, this landmark case brought an end to the historical bar which had lasted for centuries against the marriage between white and black persons. The Massachusetts Supreme Court notes that "[a]s both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice…".⁹ Not only does this place the struggle for same sex marriage within the civil rights movement, the decision acknowledges the ability of the state to use marriage as an institution to define what relationships are privileged or deemed appropriate.

Civil rights/ racial justice arguments are also used to debunk the Commonwealth arguments against extending marriage to same sex couples, most explicitly seen when the Court rejects the proposition that marriage should be reserved to heterosexual couples on the grounds that they can procreate since civil marriage does not privilege procreative heterosexual intercourse above other forms of intimacy.¹⁰ Rather it is "the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children that is the sine qua non of civil marriage.¹¹" Further, the Court notes that the marriage is procreation argument singles out the one unbridgeable difference and transforms it into the essence of legal marriage, and this marriage restriction defines persons by a single trait and then denies them access across the board, which "confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.¹²" This statement is a derivative of a series of civil rights cases originating with the dissent by Justice Harlan in Plessy v. Ferguson, which was an 1897 landmark case, which allowed trains to segregate it passengers on the basis of race and subsequently established the judicial approval of separate but equal spheres and entrenched inequality for the next 50 years.¹³ Harlan had the foresight to observe that such segregation would never lead to equality much like the continued practice of excluding same sex couples from marriage.

After the Goodridge decision and pending its implementation, the Massachusetts Senate sought to create a civil union scheme whereby the institution of marriage would remain reserved for opposite sex couple but a separate civil unions scheme would be constructed that would afford same-sex couples the benefits, obligations, and protections of marriage.¹⁴ The Court rejected this attempt on the grounds that since "the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.¹⁵" The Supreme Court once again referred to Brown v Board of Education, settling once in for all that anything less than marriage would not satisfy the requirements of the Massachusetts Constitution, ultimately, paving the way to the issuance of marriage licenses to same sex couples.

It is important that the struggle for same-sex marriage is linked within the historically civil rights context for several reasons. First, homosexuals have been historically excluded from higher level of judicial scrutiny given to classifications on the basis of race and sex when evaluating legislative policies.¹⁶ This in itself has given the appearance that homosexual are not deserving of equal protection. Secondly, opponents of same sex marriage and generally the recognition of rights for homosexuals are a powerful contingent. Since same sex marriage litigation began in the early nineteen nineties, those opposed to such recognition have successfully lobbied forty states to pass Constitutional Amendments or statutes confining marriage to a union between a man and a wife. What is even more disturbing, is that in 1996, President Clinton signed into law the Defence of Marriage Act ("DOMA"), which is a federal law that allows states to deny legal recognition of marriage like relationships in other states, and it explicitly states that marriage for purposes of federal law is "a legal union of one man and one woman as husband and wife" and spouse "refers only to persons of the opposite sex who is a husband or wife.¹⁷" Laurence Tribe, a leading constitutional scholar and critical race theorist declares that: "[DOMA] is a clear violation of the Constitution's requirements that states give "full faith and credit" to the "public acts, records, and judicial proceedings" of every other state. Even opponents of same-sex marriage should be offended by an attempt to carve a statutory exception to a vital constitutional provision that unites 50 independent states into one nation…"¹⁸ Further, in the face of legal recognition of same-sex marriage the opposition has intensified its campaign and is now seeking a federal amendment to the U.S. Constitution that would limit marriage in the United States, as a whole, to the union of a man and a woman, which has been a rallying issue for conservatives during these 2004 elections.

If the right to same sex marriage is seen as an isolated struggle solely for homosexuals, we delink and distance ourselves from the historical struggle by marginalized groups to enter into the institution of marriage on equal grounds. In the face of such mobilized opposition this could be devastating. Not only would the struggle fail to mobilize a larger contingency of supporters to challenge the opposition, it ultimately maintains current hierarchies by not recognising larger systems of oppression. Therefore, as the Justices in Goodridge realised, it is essential that the struggle for same sex marriage be placed within the larger civil rights context so as to ensure that the rights already achieved are not stripped away by a powerful opposition of mobilised conservatives.

References

1. Brown v Board of Education , 347 U.S. 483 (1954). Hereinafter Brown v Board of Education.
2. Goodridge v Dept of Public Health, 440 Mass. 309 (2003). Hereinafter Goodridge.
3. Opinions of the Justices to the Senate , 440 Mass. 1201, (2004), hereinafter, Opinions of the Justices to the Senate.
4. Goodridge . 440 Mass. at 314-320.
5. Id. At 312.
6. Id . At 332.
7. Loving v. Virginia , 388 U.S. 1 (1967). Hereinafter Loving.
8. Goodridge , 440 Mass. At 327.
9. Id. At 327-328.
10. Id . At 331.
11. Id . At 332.
12. Goodridge , 440 Mass. At 333.
13. Plessy v. Ferguson, 163 U.S. 537 (1896). See Also Romer v. Evans , 516 U.S. 620 (1996).
14. Opinions of the Justices to the Senate , 440 Mass. 1201.
15. Id. A t 1206.
16. See Bowers v Hardwick, 478 U.S. 1039 (1986); Dale v. Boy scouts.
17. www. HRC.org ; www.glad.org.
18. Laurence Tribe, “Constitutional Bashing”, New York Times, July 29, 1996. From www.glad.org.