Goodridge Decision Spawns Action

Although the average American might feel that same-sex marriages in Massachusetts materialized overnight, activists who have worked on the issue say that the Goodridge decision by the Massachusetts Supreme Judicial Court (SJC) in November 2003 was not a complete surprise. Goodridge was the result of a well-planned, long-term strategy by same-sex marriage proponents to bring the issue into the legal, cultural, and political mainstream.

Massachusetts has long been recognized as a promising state for testing America's historic opposition to same-sex marriages. Two aspects of Massachusetts law that are found in combination in only a few states were cited by the Goodridge court: the lack of a clear prohibition against same-sex marriages; and strong laws requiring equal protection under the law for homosexuals.

“A major strategy of same-sex marriage advocates has been to find one state to agree with their proposition, and then to have people come there and get married, and then return to their home state and take advantage of the choice-of-law provision,” said Robert A. Destro, principal investigator of the Marriage Law Center at Catholic University (Washington, DC). “Massachusetts had long been singled out as a good candidate state.”

Massachusetts also has symbolic importance that gay-rights advocates are quick to reference. “Massachusetts has the oldest functioning constitution in the world: 221 years,” said Sue Hyde, a member of the executive committee the MassEquality, a coalition of groups that advocate upholding the Massachusetts court's ruling. “To see that document interpreted by the court in this way is highly significant.”

Yet while same-sex marriage proponents and opponents were prepared for a courtroom decision that would favor same-sex marriages, they have been surprised by the speed with which that decision unleashed other forces across the country. Goodridge shocked conservative politicians into proposing the Federal Marriage Amendment to define marriage as “between one man and one woman” in the U.S. Constitution, while it emboldened local officials numerous states to start issuing same-sex marriage licenses, even though they apparently violated state and local laws. During the spring, more than 40 state legislatures considered more than 200 bills to definite marriage, civil unions, and domestic partnerships, and to identify the rights available to people who are legally defined as partners in one way or another.

The Goodridge decision did provide an answer to some same-sex marriage issues, but perhaps only temporarily and only in limited circumstances. Lawyers and legal scholars say that the impact of Goodridge will reverberate for years through state and federal court systems, as well as through state legislatures and, eventually, the U.S. Congress.

The Pressing Question

The first question is: Will Goodridge stand up to further court review? Opponents of same-sex marriage filed four lawsuits against the Massachusetts SJC. Two have already been thrown out, and one remaining in state court appears to have only a slim chance of succeeding. However, the fourth lawsuit, Largess v. SJC, might be different. Filed by Liberty Counsel, Citizens for the Preservation of Constitutional Rights, The Thomas More Law Center, and the AFA Center for Law & Policy in the federal First Circuit Court of Appeals, Largess is the only federal court challenge to the Massachusetts legal decision so far.

Mathew D. Staver, president and general counsel of Liberty Counsel, made the oral arguments before the appeals court on June 7. “We are arguing that the Massachusetts Supreme Judicial Court violated the U.S. Constitution when it exceeded its power and redefined marriage from the 'union of one man and one woman' to the 'union of two persons,'” Staver told The Matrimonial Strategist. “The Guarantee Clause of the Constitution states that we have a representative form of government, and that citizens have the right to direct control of elections and their government. Courts cannot interfere with those rights, unless they are specifically granted the authority to do so.”

The court of appeals rejected the lawsuit on June 29, declining the plaintiffs' request for an order halting same-sex marriages in Massachusetts. Staver said he will take the case to the U.S. Supreme Court and argue that the Massachusetts SJC did not have the authority to “re-interpret” the definition of marriage in the state. “The [Supreme Judicial] court recognized that the universal definition of marriage is between one man and one woman, and that was not at issue by either party in the lawsuit,” said Staver. “Then it went on to redefine it. And that's what we are challenging.”

One interesting footnote is that if the court does overrule the Massachusetts SJC, the same-sex marriages that have been legally performed will be in limbo. In the first week that the marriages were legal, more than 2500 couples received licenses, according to a survey by The Boston Globe in early June. Several thousand more same-sex marriages have been granted since then. “What will happen to them?” asks Destro.

Equal Protection & Privacy

The Goodridge decision was based on two key points: The State Code of Massachusetts does not explicitly prohibit same-sex marriage; and the state's constitution does guarantee equal protection under the law. That equal protection clause is the major argument that same-sex marriage proponents have used across the country to challenge other states' marriage laws, and it is likely to continue to be their key argument in the future.

The equal protection clause requires that “protected” classes of people receive equal protection under the law. Most commonly, these protections come into effect for civil rights and employment matters. Over the past 30 years, some states have added sexual orientation and sexual identification (think: transgendered persons) as protected classes, but the inclusion of these classes is by no means universal.

“I believe that same-sex marriage as a legal entity will prevail in every case in which there is a legal obligation on that state not to discriminate against homosexuals,” said Hyde. “In Massachusetts, the non-discrimination laws are very inclusive. That's not so in New Hampshire, for example, where they are more limited.”

When same-sex marriage proponents do not have strong state laws on their side, they can argue that a state must show why equal protection has not been granted. Courts have ruled that allowances for “discrimination” against homosexuals must be proven to serve important governmental objectives, and that the “discriminatory means” employed in the circumstances must be directly related to achieving those objectives. This type of argument has been visited in a great deal of litigation — for example, about having homosexuals as teachers, or giving homosexuals the right to adopt children. The strength of that argument can be seen in Romer v. Evans (1996) when the U.S. Supreme Court struck down Colorado's Amendment 2, which denied gays and lesbians protections against discrimination. “These protections … constitute ordinary civil life in a free society,” wrote Justice Anthony Kennedy.

State attorneys general have argued in numerous marriage cases (on issues ranging from adoption to child custody to same-sex marriage) that their discrimination does have important objectives, namely: preservation of the traditional definition of marriage; procreation; and child welfare. Sometimes courts have agreed, and often they have not.

The third argument often made by gay-rights advocates relates to the rights of due process and privacy for individual behavior. This precedent has been used over the years to eliminate restrictions against homosexual behavior that have been enshrined in the law for decades and even centuries. The most recent example is the Lawrence case in which the U.S. Supreme Court in 2003 struck down an anti-sodomy law in Texas and, by extension, laws in Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. Lawrence overturned the 1986 Supreme Court ruling in Bowers v. Hardwick.

For gay-rights advocates, Lawrence was a high-profile victory. One of the important statements in that case came from Justice Sandra Day O'Connor, who noted, “Moral disapproval of homosexuals cannot be a legitimate state interest.” Gay-rights advocates want to turn O'Connor's phrase into a broader claim that prohibiting homosexuals from obtaining legal marriages is not a legitimate state interest, despite the centuries of support for a traditional definition of marriage.

However, opponents of same-sex marriage point out that Lawrence only narrowly dealt with sodomy prohibitions. “The court in Lawrence emphatically declared that its ruling is not applicable to same-sex marriages,” said Destro.

The one marriage case so far that tried to use Lawrence was rejected by the court for exactly the reason that Destro cited. Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003) was brought to the Arizona Appeals Court by a homosexual couple that challenged Arizona's marriage prohibitions on the grounds that Lawrence gave both state and federal “fundamental [constitutional] rights” to same-sex marriage. The appeals court disagreed, and wrote: “Same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state, nor are they implicit in the concept of ordered liberty.” The court also rejected plaintiffs' claims based on the Arizona constitution's right of privacy and the federal equal protection clause.

Massachusetts Marriage As a Lever into Other States

The alternative to citing equal protection clauses or Lawrence is to use the legal marriages in Massachusetts as a wedge to challenge Defense of Marriage (DOMA) laws in other states. Most likely, this will be the route that is pursued most aggressively in the next couple of years.

Proponents of same-sex marriage argue that the Full Faith and Credit Clause of the U.S. Constitution requires states to recognize Massachusetts same-sex marriages. Moreover, they can point to decades of precedent in which states accepted marriages performed in other states that would not have been legal in the home state. “This is not a matter of 'if' anymore,” said Hyde. “It's now a matter of when other states will confer equality on same-sex couples — though I'm not predicting how long it will take.”

However, many legal scholars see it differently. They point out that the DOMA laws now in effect in 39 states generally include a clause that the state is not bound to recognize marriages from other states that conflict with its definition (see map, below). The Federal DOMA, which was signed by President Bill Clinton in 1996, gives states the option to recognize marriages from other states, but does not oblige them to do so, and it was written specifically with this issue in mind.

Scholars also point out that higher courts' decisions on a due process right to marry are mixed. The U.S. Supreme Court in Loving v. Virginia (1967) said that there is due process. But the Minnesota Supreme Court in Baker v. Nelson (1971) found that two men did not have a due process right to marry, and the U.S. Supreme Court rejected an appeal of Baker v. Nelson.

“There is a general rule that a marriage that is valid in one state is valid everywhere,” said Bill Duncan, law professor at Brigham Young University and author of several papers on same-sex marriage law. “On the other hand, the Supreme Court has said that one state does not have to recognize another state's laws in every circumstance. There were exceptions when the rule was not applied, such as Utah's allowance for polygamy in the 19th century and some states' prohibitions on interracial marriages for more than half of the 20th century.”

While perhaps encouraged by the arguments advanced by Duncan and other law professors, opponents of same-sex marriage nonetheless see Goodridge as a major threat to DOMA laws in other states. In an opinion article distributed to many newspapers and magazines in July 2004, Maggie Gallagher, president of the Institute for Marriage and Public Policy, and Joshua Baker, the Institute's policy director, say that Goodridge potentially undermines states' prohibitions on same-sex marriage in four ways:

• Obtaining a Massachusetts marriage that is rejected in their home state gives a same-sex couple “injury” that gives them standing to sue in their home state.
• State attorneys general can simply declare that they will recognize Massachusetts marriages, based on their interpretation of their laws. As discussed below, New York State Attorney General Eliot Spitzer has taken this step.
• “Radically different marriage laws in different states are difficult to sustain over time … the Supreme Court will be tempted to harmonize by ordering the recognition of same-sex marriage on equal-protection grounds,” the authors write.
• Lawrence indicates that federal courts are highly skeptical of a state law that limits U.S. Constitutional rights for homosexuals. This criticism of Lawrence was at the heart of Justice Antonin Scalia's dissent in the case.

This spring, Massachusetts Governor Mitt Romney (R) tried to derail some of the challenges to other states' DOMA laws. Citing an early 20th-century law state law (Chapter 207, Section 11, known as “The Reverse Evasion Statute”), Romney tried to ban town clerks in Massachusetts from issuing marriage licenses to non-residents. Clerks in some towns publicly disputed Romney's use of the old law, saying that it had been common practice for decades to ignore it. For the first week of same-sex marriage in Massachusetts, non-resident couples were able to obtain licenses from clerks in at least six towns (Attleboro, Fall River, Provincetown, Somerville, Springfield, and Worcester). But then, bowing to an opinion from the state's attorney general, the clerks stopped issuing those licenses. Subsequently, a lawsuit was filed, Flynn v. Johnstone, seeking mandamus action to invalidate the non-resident same-sex marriages that were performed.

Same-sex marriage proponents fought back with their own lawsuits. In June, two lawsuits were filed by the American Civil Liberties Union in Suffolk County Court to challenge the 1913 law. One lawsuit was filed by Massachusetts town clerks, and the other lawsuit came from eight non-resident couples who say they were denied marriage licenses by Romney's enforcement of the law. Briefs are still being filed in this case.

Meanwhile, none of the non-residents who did get married in Massachusetts have as yet challenged rules in their home states, nor sought federal benefits, but it's obviously only a matter of time. Anticipating the issue of federal benefits, the Internal Revenue Service responded in June to an inquiry letter from a “family rights” organization called Public Advocate for the U.S.A. by writing that it will follow the Federal DOMA law and not recognize Massachusetts same-sex couples as legally married. Those couples will not be able to file joint federal tax returns.

Law professor Duncan predicted that state-level tests of marriage restrictions might come first in either New Jersey or New York, in large measure because those states do not have DOMA laws, and thus represent a lesser legal hurdle for challengers. Duncan also noted that on March 3, New York State Attorney General Eliot Spitzer issued an “informal opinion” to municipal officials that included a fairly strong endorsement of the idea that New York would recognize a Massachusetts same-sex marriage. In the opinion, Spitzer wrote:

“In general, New York common law requires recognizing as valid a marriage, or its legal equivalent, if it was validly executed in another State, regardless of whether the union at issue would be permitted under New York's Domestic Relations Law. The only exceptions to this rule occur when the union where recognition has been expressly prohibited by statute, or the union is abhorrent to New York's public policy …

The issue of recognizing same-sex unions from other legal jurisdictions represents a distinct legal question [from that of performing same-sex marriages in New York]. Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to such unions must be treated as spouses for the purposes of New York law. “

Spitzer added that a case decided by the New York State Supreme Court, Langan v. St. Vincent's Hospital of New York (2003), showed that New York will accept as legally binding out-of-state marriages and civil unions. In that case, the court upheld the right of one man to sue a hospital for negligence in the death of his partner because the two men had received a civil union license in Vermont the previous year. Vermont became the first state to give legal recognition to same-sex civil unions in 2000, but the defining feature of the civil unions is that they are not presumed to be recognized in other states in the way that a marriage would be.

It should be noted that attorneys general in many other states have come to conclusions that are the opposite of Spitzer's. For example, as same-sex marriages in Massachusetts neared the deadline in May, the attorneys general from Alabama, Illinois, South Dakota, and Virginia stated in opinion letters that public policy and laws in their states are clear in not recognizing out-of-state same-sex marriages. For these states, the opinions arose from consideration in the past few years of issues arising from Vermont civil unions.

Indeed, one of the few tests of a state DOMA law so far has found its definition of marriage upheld in court. A custody dispute in Georgia arose when a divorced woman sought to have her female partner stay with her on the evenings that she had her children for visitation. Her ex-husband disapproved, and he cited her consent decree in their custody agreement that she would not have non-related adults stay with her and the children overnight. The woman argued that her Vermont civil union was, for the purposes of visitation, a “marriage.” The Georgia appeals court disagreed, and noted, “even if Vermont had purported to legalize same-sex marriages, such would not be recognized in Georgia” because of the state's DOMA law. Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002).

States Add Stronger Marriage Statutes

The Goodridge decision emboldened advocates of same-sex marriage across the country, and it led to the issuance of same-sex marriage licenses in numerous states this spring. More than any other development, the decisions by local politicians and government officials to challenge the traditional interpretation of marriage in their states by issuing these licenses has shocked parties on either side of the issue.

Beginning with San Francisco Mayor Gavin Newsom and quickly spreading to counties in Oregon and New Mexico, and then to New Paltz, NY, officials in local jurisdictions declared that they could issue marriage licenses to same-sex couples. In each case, county and state attorneys general obtained court orders to halt the issuance of licenses, but not before literally thousands of same-sex couples obtained what they believe is legal recognition of their marriages. Litigation in each of those states is now moving toward state supreme courts.

Same-sex couples in almost every state went to local marriage offices — often with the media in tow — and requested marriage licenses. The rejection of these licenses forms the basis for additional litigation, now filed in states from Florida to Indiana, to Washington. (For a comprehensive data base of state activity, refer to the Interactive Map on this Web site.)

Furthermore, according to data compiled by online political Web site Stateline.org, http://www.stateline.%20org/., at least 11 states are likely to have amendments to ban same-sex marriage on ballots this summer or fall. In seven states, legislatures' votes put the amendments on fall ballots: Georgia, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, and Utah.

Four states apparently have received enough signatures on petitions for citizen referenda: Arkansas, Michigan, Montana, and Oregon. Signatures are still being collected for two more states, North Dakota and Ohio, which have August deadlines.

Moreover, polls indicate that the amendments will get the necessary support from voters. “Every time voters have been asked about homosexual marriage, they have voted against it,” Destro said. “Alaska, Hawaii, and Nevada have voted in constitutional amendments, and California's referendum [to define "one man, one woman" marriage as a state law, but not a constitutional amendment] passed by a large margin in 2000.”

To cite just one recent poll, 61% of Michigan voters said that they will vote in favor of their state's proposed constitutional amendment.

Patchwork of State Laws

The result of this mix of current laws, upcoming court challenges, and state constitutional amendments is that the U.S. is entering a period in which a “patchwork of state laws and rules will emerge,” said the Gay & Lesbian Task Force's Matt Foreman at a press conference in May. “My assumption is that eventually the Supreme Court will have to decide … but that's a long time in the future. Instead, we will likely see in the interim that courts will decide on specific issues – such as filing taxes jointly or sharing student housing — but not a grand endorsement or rejection of same-sex marriage.”

Divorce laws in the U.S. are perhaps a model for how same-sex marriage will evolve, Foreman suggested. Fifty years ago, divorces were more difficult to obtain than they are today, and in fact, they were very difficult to obtain in some states. As a result, people went to Nevada to obtain divorces, which required the shortest residencies in the nation (6 months in the 1920s, which was pared to 6 weeks in 1931, and later reduced to 3 weeks). Most of the time, the home state would accept the Nevada divorce, and eventually court rulings helped to bring a great deal of consistency to state divorce laws.

Patchwork marriage laws also will arise because states now have to contend more regularly with civil unions and domestic partnerships that have been offered as alternatives to same-sex marriage. Law professor Duncan cites the use of the term “incidents of marriage” in many proposed laws as evidence that these other types of legal recognition will chip away at the strict definition of marriage. “While the earlier laws did not generally address the incidents of marriage, the newer laws and proposals are much more likely to, probably given the proliferation of alternative quasi-marital statuses that have been created for same-sex couples,” Duncan wrote in a recent paper.

In Massachusetts, for example, legalizing Vermont-style civil unions have been offered several times as legislative alternatives to marriage. While the Massachusetts SJC struck down civil unions as an option, it's possible that they will arise again.

To be sure, the Federal Marriage Amendment, which would define in the U.S. Constitution that marriage “is between one man and one woman,” would provide clarity on the issue, but as recent events show, this is not likely to occur. (See Federal Marriage article in this issue.)

Although the average American might feel that same-sex marriages in Massachusetts materialized overnight, activists who have worked on the issue say that the Goodridge decision by the Massachusetts Supreme Judicial Court (SJC) in November 2003 was not a complete surprise. Goodridge was the result of a well-planned, long-term strategy by same-sex marriage proponents to bring the issue into the legal, cultural, and political mainstream.

Massachusetts has long been recognized as a promising state for testing America's historic opposition to same-sex marriages. Two aspects of Massachusetts law that are found in combination in only a few states were cited by the Goodridge court: the lack of a clear prohibition against same-sex marriages; and strong laws requiring equal protection under the law for homosexuals.

“A major strategy of same-sex marriage advocates has been to find one state to agree with their proposition, and then to have people come there and get married, and then return to their home state and take advantage of the choice-of-law provision,” said Robert A. Destro, principal investigator of the Marriage Law Center at Catholic University (Washington, DC). “Massachusetts had long been singled out as a good candidate state.”

Massachusetts also has symbolic importance that gay-rights advocates are quick to reference. “Massachusetts has the oldest functioning constitution in the world: 221 years,” said Sue Hyde, a member of the executive committee the MassEquality, a coalition of groups that advocate upholding the Massachusetts court's ruling. “To see that document interpreted by the court in this way is highly significant.”

Yet while same-sex marriage proponents and opponents were prepared for a courtroom decision that would favor same-sex marriages, they have been surprised by the speed with which that decision unleashed other forces across the country. Goodridge shocked conservative politicians into proposing the Federal Marriage Amendment to define marriage as “between one man and one woman” in the U.S. Constitution, while it emboldened local officials numerous states to start issuing same-sex marriage licenses, even though they apparently violated state and local laws. During the spring, more than 40 state legislatures considered more than 200 bills to definite marriage, civil unions, and domestic partnerships, and to identify the rights available to people who are legally defined as partners in one way or another.

The Goodridge decision did provide an answer to some same-sex marriage issues, but perhaps only temporarily and only in limited circumstances. Lawyers and legal scholars say that the impact of Goodridge will reverberate for years through state and federal court systems, as well as through state legislatures and, eventually, the U.S. Congress.

The Pressing Question

The first question is: Will Goodridge stand up to further court review? Opponents of same-sex marriage filed four lawsuits against the Massachusetts SJC. Two have already been thrown out, and one remaining in state court appears to have only a slim chance of succeeding. However, the fourth lawsuit, Largess v. SJC, might be different. Filed by Liberty Counsel, Citizens for the Preservation of Constitutional Rights, The Thomas More Law Center, and the AFA Center for Law & Policy in the federal First Circuit Court of Appeals, Largess is the only federal court challenge to the Massachusetts legal decision so far.

Mathew D. Staver, president and general counsel of Liberty Counsel, made the oral arguments before the appeals court on June 7. “We are arguing that the Massachusetts Supreme Judicial Court violated the U.S. Constitution when it exceeded its power and redefined marriage from the 'union of one man and one woman' to the 'union of two persons,'” Staver told The Matrimonial Strategist. “The Guarantee Clause of the Constitution states that we have a representative form of government, and that citizens have the right to direct control of elections and their government. Courts cannot interfere with those rights, unless they are specifically granted the authority to do so.”

The court of appeals rejected the lawsuit on June 29, declining the plaintiffs' request for an order halting same-sex marriages in Massachusetts. Staver said he will take the case to the U.S. Supreme Court and argue that the Massachusetts SJC did not have the authority to “re-interpret” the definition of marriage in the state. “The [Supreme Judicial] court recognized that the universal definition of marriage is between one man and one woman, and that was not at issue by either party in the lawsuit,” said Staver. “Then it went on to redefine it. And that's what we are challenging.”

One interesting footnote is that if the court does overrule the Massachusetts SJC, the same-sex marriages that have been legally performed will be in limbo. In the first week that the marriages were legal, more than 2500 couples received licenses, according to a survey by The Boston Globe in early June. Several thousand more same-sex marriages have been granted since then. “What will happen to them?” asks Destro.

Equal Protection & Privacy

The Goodridge decision was based on two key points: The State Code of Massachusetts does not explicitly prohibit same-sex marriage; and the state's constitution does guarantee equal protection under the law. That equal protection clause is the major argument that same-sex marriage proponents have used across the country to challenge other states' marriage laws, and it is likely to continue to be their key argument in the future.

The equal protection clause requires that “protected” classes of people receive equal protection under the law. Most commonly, these protections come into effect for civil rights and employment matters. Over the past 30 years, some states have added sexual orientation and sexual identification (think: transgendered persons) as protected classes, but the inclusion of these classes is by no means universal.

“I believe that same-sex marriage as a legal entity will prevail in every case in which there is a legal obligation on that state not to discriminate against homosexuals,” said Hyde. “In Massachusetts, the non-discrimination laws are very inclusive. That's not so in New Hampshire, for example, where they are more limited.”

When same-sex marriage proponents do not have strong state laws on their side, they can argue that a state must show why equal protection has not been granted. Courts have ruled that allowances for “discrimination” against homosexuals must be proven to serve important governmental objectives, and that the “discriminatory means” employed in the circumstances must be directly related to achieving those objectives. This type of argument has been visited in a great deal of litigation — for example, about having homosexuals as teachers, or giving homosexuals the right to adopt children. The strength of that argument can be seen in Romer v. Evans (1996) when the U.S. Supreme Court struck down Colorado's Amendment 2, which denied gays and lesbians protections against discrimination. “These protections … constitute ordinary civil life in a free society,” wrote Justice Anthony Kennedy.

State attorneys general have argued in numerous marriage cases (on issues ranging from adoption to child custody to same-sex marriage) that their discrimination does have important objectives, namely: preservation of the traditional definition of marriage; procreation; and child welfare. Sometimes courts have agreed, and often they have not.

The third argument often made by gay-rights advocates relates to the rights of due process and privacy for individual behavior. This precedent has been used over the years to eliminate restrictions against homosexual behavior that have been enshrined in the law for decades and even centuries. The most recent example is the Lawrence case in which the U.S. Supreme Court in 2003 struck down an anti-sodomy law in Texas and, by extension, laws in Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. Lawrence overturned the 1986 Supreme Court ruling in Bowers v. Hardwick.

For gay-rights advocates, Lawrence was a high-profile victory. One of the important statements in that case came from Justice Sandra Day O'Connor, who noted, “Moral disapproval of homosexuals cannot be a legitimate state interest.” Gay-rights advocates want to turn O'Connor's phrase into a broader claim that prohibiting homosexuals from obtaining legal marriages is not a legitimate state interest, despite the centuries of support for a traditional definition of marriage.

However, opponents of same-sex marriage point out that Lawrence only narrowly dealt with sodomy prohibitions. “The court in Lawrence emphatically declared that its ruling is not applicable to same-sex marriages,” said Destro.

The one marriage case so far that tried to use Lawrence was rejected by the court for exactly the reason that Destro cited. Standhardt v. Superior Court , 77 P.3d 451 (Ariz. App. 2003) was brought to the Arizona Appeals Court by a homosexual couple that challenged Arizona's marriage prohibitions on the grounds that Lawrence gave both state and federal “fundamental [constitutional] rights” to same-sex marriage. The appeals court disagreed, and wrote: “Same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state, nor are they implicit in the concept of ordered liberty.” The court also rejected plaintiffs' claims based on the Arizona constitution's right of privacy and the federal equal protection clause.

Massachusetts Marriage As a Lever into Other States

The alternative to citing equal protection clauses or Lawrence is to use the legal marriages in Massachusetts as a wedge to challenge Defense of Marriage (DOMA) laws in other states. Most likely, this will be the route that is pursued most aggressively in the next couple of years.

Proponents of same-sex marriage argue that the Full Faith and Credit Clause of the U.S. Constitution requires states to recognize Massachusetts same-sex marriages. Moreover, they can point to decades of precedent in which states accepted marriages performed in other states that would not have been legal in the home state. “This is not a matter of 'if' anymore,” said Hyde. “It's now a matter of when other states will confer equality on same-sex couples — though I'm not predicting how long it will take.”

However, many legal scholars see it differently. They point out that the DOMA laws now in effect in 39 states generally include a clause that the state is not bound to recognize marriages from other states that conflict with its definition (see map, below). The Federal DOMA, which was signed by President Bill Clinton in 1996, gives states the option to recognize marriages from other states, but does not oblige them to do so, and it was written specifically with this issue in mind.

Scholars also point out that higher courts' decisions on a due process right to marry are mixed. The U.S. Supreme Court in Loving v. Virginia (1967) said that there is due process. But the Minnesota Supreme Court in Baker v. Nelson (1971) found that two men did not have a due process right to marry, and the U.S. Supreme Court rejected an appeal of Baker v. Nelson.

“There is a general rule that a marriage that is valid in one state is valid everywhere,” said Bill Duncan, law professor at Brigham Young University and author of several papers on same-sex marriage law. “On the other hand, the Supreme Court has said that one state does not have to recognize another state's laws in every circumstance. There were exceptions when the rule was not applied, such as Utah's allowance for polygamy in the 19th century and some states' prohibitions on interracial marriages for more than half of the 20th century.”

While perhaps encouraged by the arguments advanced by Duncan and other law professors, opponents of same-sex marriage nonetheless see Goodridge as a major threat to DOMA laws in other states. In an opinion article distributed to many newspapers and magazines in July 2004, Maggie Gallagher, president of the Institute for Marriage and Public Policy, and Joshua Baker, the Institute's policy director, say that Goodridge potentially undermines states' prohibitions on same-sex marriage in four ways:

• Obtaining a Massachusetts marriage that is rejected in their home state gives a same-sex couple “injury” that gives them standing to sue in their home state.
• State attorneys general can simply declare that they will recognize Massachusetts marriages, based on their interpretation of their laws. As discussed below, New York State Attorney General Eliot Spitzer has taken this step.
• “Radically different marriage laws in different states are difficult to sustain over time … the Supreme Court will be tempted to harmonize by ordering the recognition of same-sex marriage on equal-protection grounds,” the authors write.
• Lawrence indicates that federal courts are highly skeptical of a state law that limits U.S. Constitutional rights for homosexuals. This criticism of Lawrence was at the heart of Justice Antonin Scalia's dissent in the case.

This spring, Massachusetts Governor Mitt Romney (R) tried to derail some of the challenges to other states' DOMA laws. Citing an early 20th-century law state law (Chapter 207, Section 11, known as “The Reverse Evasion Statute”), Romney tried to ban town clerks in Massachusetts from issuing marriage licenses to non-residents. Clerks in some towns publicly disputed Romney's use of the old law, saying that it had been common practice for decades to ignore it. For the first week of same-sex marriage in Massachusetts, non-resident couples were able to obtain licenses from clerks in at least six towns (Attleboro, Fall River, Provincetown, Somerville, Springfield, and Worcester). But then, bowing to an opinion from the state's attorney general, the clerks stopped issuing those licenses. Subsequently, a lawsuit was filed, Flynn v. Johnstone, seeking mandamus action to invalidate the non-resident same-sex marriages that were performed.

Same-sex marriage proponents fought back with their own lawsuits. In June, two lawsuits were filed by the American Civil Liberties Union in Suffolk County Court to challenge the 1913 law. One lawsuit was filed by Massachusetts town clerks, and the other lawsuit came from eight non-resident couples who say they were denied marriage licenses by Romney's enforcement of the law. Briefs are still being filed in this case.

Meanwhile, none of the non-residents who did get married in Massachusetts have as yet challenged rules in their home states, nor sought federal benefits, but it's obviously only a matter of time. Anticipating the issue of federal benefits, the Internal Revenue Service responded in June to an inquiry letter from a “family rights” organization called Public Advocate for the U.S.A. by writing that it will follow the Federal DOMA law and not recognize Massachusetts same-sex couples as legally married. Those couples will not be able to file joint federal tax returns.

Law professor Duncan predicted that state-level tests of marriage restrictions might come first in either New Jersey or New York, in large measure because those states do not have DOMA laws, and thus represent a lesser legal hurdle for challengers. Duncan also noted that on March 3, New York State Attorney General Eliot Spitzer issued an “informal opinion” to municipal officials that included a fairly strong endorsement of the idea that New York would recognize a Massachusetts same-sex marriage. In the opinion, Spitzer wrote:

“In general, New York common law requires recognizing as valid a marriage, or its legal equivalent, if it was validly executed in another State, regardless of whether the union at issue would be permitted under New York's Domestic Relations Law. The only exceptions to this rule occur when the union where recognition has been expressly prohibited by statute, or the union is abhorrent to New York's public policy …

The issue of recognizing same-sex unions from other legal jurisdictions represents a distinct legal question [from that of performing same-sex marriages in New York]. Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to such unions must be treated as spouses for the purposes of New York law. “

Spitzer added that a case decided by the New York State Supreme Court, Langan v. St. Vincent's Hospital of New York (2003), showed that New York will accept as legally binding out-of-state marriages and civil unions. In that case, the court upheld the right of one man to sue a hospital for negligence in the death of his partner because the two men had received a civil union license in Vermont the previous year. Vermont became the first state to give legal recognition to same-sex civil unions in 2000, but the defining feature of the civil unions is that they are not presumed to be recognized in other states in the way that a marriage would be.

It should be noted that attorneys general in many other states have come to conclusions that are the opposite of Spitzer's. For example, as same-sex marriages in Massachusetts neared the deadline in May, the attorneys general from Alabama, Illinois, South Dakota, and Virginia stated in opinion letters that public policy and laws in their states are clear in not recognizing out-of-state same-sex marriages. For these states, the opinions arose from consideration in the past few years of issues arising from Vermont civil unions.

Indeed, one of the few tests of a state DOMA law so far has found its definition of marriage upheld in court. A custody dispute in Georgia arose when a divorced woman sought to have her female partner stay with her on the evenings that she had her children for visitation. Her ex-husband disapproved, and he cited her consent decree in their custody agreement that she would not have non-related adults stay with her and the children overnight. The woman argued that her Vermont civil union was, for the purposes of visitation, a “marriage.” The Georgia appeals court disagreed, and noted, “even if Vermont had purported to legalize same-sex marriages, such would not be recognized in Georgia” because of the state's DOMA law. Burns v. Burns , 560 S.E.2d 47 (Ga. App. 2002).

States Add Stronger Marriage Statutes

The Goodridge decision emboldened advocates of same-sex marriage across the country, and it led to the issuance of same-sex marriage licenses in numerous states this spring. More than any other development, the decisions by local politicians and government officials to challenge the traditional interpretation of marriage in their states by issuing these licenses has shocked parties on either side of the issue.

Beginning with San Francisco Mayor Gavin Newsom and quickly spreading to counties in Oregon and New Mexico, and then to New Paltz, NY, officials in local jurisdictions declared that they could issue marriage licenses to same-sex couples. In each case, county and state attorneys general obtained court orders to halt the issuance of licenses, but not before literally thousands of same-sex couples obtained what they believe is legal recognition of their marriages. Litigation in each of those states is now moving toward state supreme courts.

Same-sex couples in almost every state went to local marriage offices — often with the media in tow — and requested marriage licenses. The rejection of these licenses forms the basis for additional litigation, now filed in states from Florida to Indiana, to Washington. (For a comprehensive data base of state activity, refer to the Interactive Map on this Web site.)

Furthermore, according to data compiled by online political Web site Stateline.org, http://www.stateline.%20org/., at least 11 states are likely to have amendments to ban same-sex marriage on ballots this summer or fall. In seven states, legislatures' votes put the amendments on fall ballots: Georgia, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, and Utah.

Four states apparently have received enough signatures on petitions for citizen referenda: Arkansas, Michigan, Montana, and Oregon. Signatures are still being collected for two more states, North Dakota and Ohio, which have August deadlines.

Moreover, polls indicate that the amendments will get the necessary support from voters. “Every time voters have been asked about homosexual marriage, they have voted against it,” Destro said. “Alaska, Hawaii, and Nevada have voted in constitutional amendments, and California's referendum [to define "one man, one woman" marriage as a state law, but not a constitutional amendment] passed by a large margin in 2000.”

To cite just one recent poll, 61% of Michigan voters said that they will vote in favor of their state's proposed constitutional amendment.

Patchwork of State Laws

The result of this mix of current laws, upcoming court challenges, and state constitutional amendments is that the U.S. is entering a period in which a “patchwork of state laws and rules will emerge,” said the Gay & Lesbian Task Force's Matt Foreman at a press conference in May. “My assumption is that eventually the Supreme Court will have to decide … but that's a long time in the future. Instead, we will likely see in the interim that courts will decide on specific issues – such as filing taxes jointly or sharing student housing — but not a grand endorsement or rejection of same-sex marriage.”

Divorce laws in the U.S. are perhaps a model for how same-sex marriage will evolve, Foreman suggested. Fifty years ago, divorces were more difficult to obtain than they are today, and in fact, they were very difficult to obtain in some states. As a result, people went to Nevada to obtain divorces, which required the shortest residencies in the nation (6 months in the 1920s, which was pared to 6 weeks in 1931, and later reduced to 3 weeks). Most of the time, the home state would accept the Nevada divorce, and eventually court rulings helped to bring a great deal of consistency to state divorce laws.

Patchwork marriage laws also will arise because states now have to contend more regularly with civil unions and domestic partnerships that have been offered as alternatives to same-sex marriage. Law professor Duncan cites the use of the term “incidents of marriage” in many proposed laws as evidence that these other types of legal recognition will chip away at the strict definition of marriage. “While the earlier laws did not generally address the incidents of marriage, the newer laws and proposals are much more likely to, probably given the proliferation of alternative quasi-marital statuses that have been created for same-sex couples,” Duncan wrote in a recent paper.

In Massachusetts, for example, legalizing Vermont-style civil unions have been offered several times as legislative alternatives to marriage. While the Massachusetts SJC struck down civil unions as an option, it's possible that they will arise again.

To be sure, the Federal Marriage Amendment, which would define in the U.S. Constitution that marriage “is between one man and one woman,” would provide clarity on the issue, but as recent events show, this is not likely to occur. (See Federal Marriage article in this issue.)