Popping the question
Now that a Massachusetts court says gays can wed, will it go national? Not if conservatives can stop it
By RICHARD LACAYO
In all, there were seven couples who brought the suit that resulted in Massachusetts' court ruling on gay marriage last week. Two of the plaintiffs were Ed Balmelli and Michael Horgan.
A couple of years ago, they did what generations of would-be newlyweds have done: they went before a clerk at Boston's city hall to apply for a marriage license. "The woman looked back and forth from each of us and said, 'Where's the bride?'" recalls Balmelli. "And we said, 'This marriage has two grooms.' She was just speechless."
Not so the Supreme Judicial Court of Massachusetts. In a momentous 4-to-3 ruling, it said gay couples have the right to marry in that state. "The Massachusetts Constitution affirms the dignity and equality of all individuals," wrote Chief Justice Margaret H. Marshall. "It forbids the creation of second-class citizens."
Four years ago, when Vermont's highest court ordered that state to give gay couples the benefits of marriage, it was satisfied when legislators adopted a compromise civil-union law. But the Massachusetts court, which gave state legislators six months to implement its ruling, does not appear to have provided any wiggle room. State attorney general Tom Reilly, a Democrat who may run for Governor in 2006, is hoping the court will accept some kind of civil-union legislation.
"This ruling is just not clear [on what kind of remedy it requires]," he says. Maybe. It was a narrow ruling, so the legislature might craft a solution so nuanced that it lures one of the four majority judges to the other side. Most legal scholars think the court won't be satisfied with anything short of same-sex marriages.
In that case, get ready for a larger crop of June weddings next year — and possibly an even more explosive presidential election. The legal repercussions could go national quickly. Gay couples from out of state who wed in Massachusetts would be likely to sue in their home states to claim the benefits of marriage in such areas as joint property, health insurance, child custody and inheritance.
The federal Defense of Marriage Act of 1996 mandates that no state is required to recognize another's same-sex marriages. But no state has performed a gay marriage yet, so the law has never been tested in the courts.
In a TIME/CNN poll conducted last week, 62% of those questioned opposed gay marriage. With an eye to numbers like that, Massachusetts Governor Mitt Romney, a Republican, is urging the adoption of a state constitutional amendment to ban gay marriage.
But under state law, amendments have to be approved by two successive sessions of the legislature and then by a voter referendum — a process that would take at least three years. Four Cambridge city-council members already have a plan that would begin issuing symbolic marriage licenses there as soon as this week.
A lot of conservative groups are gearing up for a faster battle too. For weeks a group of about 30 socially conservative activists have been meeting to plot strategy on gay marriage, which they expect to be a hot-button issue in the 2004 presidential election. "Our people are raring to go," says Lou Sheldon, chairman of the Traditional Values Coalition. "Every time you get two lesbians on television talking about marriage, that just fires them up."
If the trick for some Democrats is to be pro gay while shunning gay marriage, the goal of Republicans will be to support a marriage ban without heading down the cultural warpath the way Pat Buchanan and Pat Robertson did at the 1992 G.O.P. Convention — a tactic that helped lose George H.W. Bush the election. When George W. Bush said last week he would do "what is legally necessary to defend the sanctity of marriage," he sidestepped references to any constitutional amendment.
Gay activists compare last week's ruling with the 1967 Supreme Court decision that struck down state bans on interracial marriage, a decision that also was unpopular in its day but now seems fundamental to our notion of justice.
The Human Rights Campaign, a national gay organization, has just kicked off a $1 million print, radio and television ad campaign to give a human face to same-sex parents and their children.
Evan Wolfson, executive director of the pro-gay group Freedom to Marry, likes to quote Gandhi: "He said, 'First they ignore you, then they laugh at you, then they fight you, and then you win.' Well, our opponents are no longer ignoring us or laughing at us. Now they've been fighting us, and this week we won." True enough, but both sides know that the fight is nowhere near finished.
— Reported by Wendy Cole/Chicago, Matthew Cooper/Washington and Nathan Thornburgh/Boston
Copyright © 2003 Time Inc.