Gay Marriage Ruling Up Against an Array of Legal Barriers

Times Staff Writer

Marriage is the unusual combination of a deeply personal vow and a government-sanctioned contract. For many, it is also a solemn religious ceremony.

It is both “an intimate, exclusive union” and “one of our community’s most rewarding and cherished institutions,” the Massachusetts Supreme Judicial Court said Tuesday.

At times, however, deciding who may marry has been the subject of great controversy. And legal experts stressed Tuesday that while the courts have had the first word on whether same-sex couples may wed, they may not have the last.


Congress and the states have put in place a series of barriers to prevent same-sex marriages from spreading across the U.S.

The Defense of Marriage Act of 1996 says, “No state shall be required to give effect” to a marriage “between persons of the same sex.” In 1999, California’s voters, joining 37 other states, passed a Defense of Marriage Initiative declaring that same-sex marriages would not be honored.

And even the most ardent proponents of gay rights say they fear Tuesday’s court ruling may spur support for a pending amendment to the U.S. Constitution that would define marriage, once and for all, as “the union of a man and a woman.” The result is that lawyers on both sides of this divide are uncertain of what will happen in this legal battle.

“This is just the beginning. It puts into play” the Defense of Marriage Act, said Jay Sekulow, counsel for the American Center for Law and Justice, which denounced Tuesday’s ruling. “It is clear this decision will have ramifications beyond Massachusetts.”

Tuesday’s ruling goes further than any previous state court decision in asserting that gays and lesbians deserve the right to marry. In 1999, the Vermont Supreme Court said it was unconstitutional to deny homosexual couples the “benefits and protections that flow from marriage” but did not say gays must be allowed to marry. In response, the Vermont Legislature authorized “civil unions” to give the same rights and responsibilities to gay couples, an idea that has been adopted in California and elsewhere.

The Massachusetts court said nothing about civil unions but instead declared that the state may not exclude “qualified same-sex couples from access to civil marriage.” It gave the state 180 days to comply with the ruling.


For opponents, the remaining option would be to change the state’s constitution. Gov. Mitt Romney said he would lead the drive to amend the state’s fundamental law. “Marriage is a special institution that should be reserved for a man and a woman,” he said in a statement.

If Romney’s effort succeeds, it would render Tuesday’s decision meaningless. However, if it fails, Massachusetts might be the first state in the nation to issue a marriage license to a same-sex couple.

“I’m both pleased and apprehensive,” said Georgetown law professor Chai Feldblum, an expert in gay-rights law. “It is clearly the right decision as a matter of law and morality. But I recognize there might be strong adverse reactions against this. I hope we come to see that gay people should be allowed to form strong, stable relationships.”

Since the rise of the gay-rights movement, the courts have come to consider why gay and lesbian couples may not marry. Those who have squarely faced the issue tend to conclude, as did the Massachusetts state court Tuesday, that the government has no convincing reason for denying these committed couples the same rights and responsibilities that others have.

“[B]arring an individual from the protections, benefits and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution,” the state court said in its 4-3 ruling.

The decision can’t be appealed to the U.S. Supreme Court in Washington, since it rests on the state’s constitution. Furthermore, it could have a national impact because, under the “full faith and credit” principle of the U.S. Constitution, contracts made in one state are honored in another. That’s why couples who wed in Boston are married just the same if they later move to Los Angeles.


But the Defense of Marriage Act is intended to head off that possibility by declaring as a matter of federal law that same-sex marriage is a contract that would not be honored.

Many people who support gay rights say it would be best if the move for same-sex marriage went slowly, beginning with one or two states.

“I think this is likely to be a state-by-state movement,” said USC law professor David Cruz, comparing the issue to the demise of the interracial-marriage bans during the era of the civil rights movement.

In 1948, the California Supreme Court became the first to strike down such a prohibition by a state as violating the basic rights to liberty and equality.

The U.S. Supreme Court refused to take the same step in the 1950s, even after its landmark ruling that struck down racial segregation in public schools.

It was not until 1967, in a case aptly named Loving vs. Virginia, that the high court declared unconstitutional the remaining laws against marriage between blacks and whites. But President Bush and Republican leaders said Tuesday that they would press to stop same-sex marriage before it occurs in even one state.


“I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage,” the president said from London, where he is on a state visit.

Among Democrats, many cheered the ruling, but some quietly criticized it.

“I disagree with the decision,” said Senate Minority Leader Tom Daschle (D-S.D.). “I believe that the Defense of Marriage Act we passed in the Congress is constitutional, and I think that will be borne out.”

But many constitutional experts say Daschle may not be right.

“I don’t think anyone can say with certainty ... because there is just not a lot of law,” said Pepperdine University law professor Douglas Kmiec.

Times staff writer Nick Anderson contributed to this report.