The Massachusetts Court
Goes for Broke: No Civil Unions
by Dr. R. Albert Mohler Jr.
February 6, 2004
latest atrocity handed down by the Supreme Judicial Court of Massachusetts
is yet another reminder that America's venerable rule of law is
being replaced by the rule of judges. In this case, the same four-judge
majority that ruled last November that a prohibition against same-sex
marriage is unconstitutional has now rejected civil unions as an
acceptable legislative solution. The Supreme Judicial Court rendered
its decision at the request of the Massachusetts Senate, which had
petitioned the High Court to consider whether its legislative proposal
for civil unions would satisfy the court's order in the previous
case, Goodridge v. Department of Public Health. The Court's response,
handed down on February 3, reveals the true legislative intention
behind the Court's decision on gay marriage.
Responding to the proposed legislation, the Court
ruled that since the civil union legislation "forbids same-sex
couples entry into civil marriage, it continues to relegate same-sex
couples to a different status." Building on its decision in
Goodridge, the Court ruled 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 is demonstrated that separate is seldom, if ever,
This ruling sent shock waves across the nation--ensuring
that the issue of homosexual marriage will be on the front burner
of the 2004 presidential election. The Supreme Judicial Court of
Massachusetts, demonstrating the most brazen display of judicial
activism, will force politicians and other national leaders to come
out squarely either for or against same-sex marriage. The half-way
house of civil unions has just been destroyed by judicial fiat.
The response from Massachusetts politicians was
immediate. Governor Mitt Romney, a Republican opposed to gay marriage,
seized the opportunity to declare that the people of his state should
have the opportunity to decide the definition of marriage. "We
heard from the court but not from the people. The people of Massachusetts
should not be excluded from a decision as fundamental to our society
as the definition of marriage."
The decision was handed down even as the state prepared
for an historic constitutional convention, scheduled for February
11. At that convention, state legislators are to consider a proposed
constitutional amendment that would define marriage as a relationship
between a man and a woman and would prohibit the legal recognition
of homosexual relationships. Many of those legislators are Democrats--and
Roman Catholics--who will answer to a constituency very much opposed
to homosexual marriage. Wednesday's decision will add great momentum
to those favoring an amendment.
State Rep. Eugene O'Flaherty, chairman of the House
Judiciary committee, said that in light of the Court's decision,
he is virtually certain to vote for the amendment. Rep. O'Flaherty
had been a backer of civil unions until the Court denied that option.
Now, he is prepared to fight against homosexual marriage. At the
other extreme, Massachusetts Attorney General Thomas Reilly, who
had argued against same-sex marriage in the Goodridge case, responded
to the Court's most recent ruling by advising that same-sex couples
"have the constitutional right to marry under Massachusetts
In its most recent decision, the Massachusetts Court
declared that "preserving the institution of civil marriage
is of course a legislative priority of the highest order, and one
to which the justices accord the General Court the greatest deference."
Of course, that language is betrayed by the fact that the Court's
decision effectively denies the legislature its power to preserve
the institution of marriage. The decision combines radical ideology
with the language of the civil rights movement. When it declared
that civil unions would be unconstitutional, citing the "separate
but equal" legacy of segregation, the Court put homosexual
rights on par with racial discrimination.
Even as it demonstrated the worst excesses of judicial
activism, the Court that insisted that its decision "is not
a matter of social policy but constitutional interpretation."
As the decision argued, "the traditional, historic nature and
meaning of civil marriage in Massachusetts is as a wholly secular
and dynamic legal institution, the governmental aim of which is
to encourage stable adult relationships for the good of the individual
and of the community, especially its children." So, claiming
that their interest is only that of constitutional interpretation,
the Court then plowed itself into territory the constitution does
not even directly address. The framers of the state constitution
of Massachusetts cannot possibly be interpreted to have intended
the recognition of homosexual marriage. But that is of no concern
to the four-judge majority of the Massachusetts Supreme Court.
By establishing that civil marriage is "a wholly
secular and dynamic legal institution," the Court offers a
secularized vision of our most venerable institution and imposes
a reduction on the entire concept of marriage itself.
Even though marriage has been understood throughout
the millennia of human history as a heterosexual institution, and
the relationship established between a husband and a wife, the Massachusetts
court claims that the prohibition of same-sex marriage is based
upon "group classifications based on unsupportable distinctions."
So, gender is reduced to an "unsupportable distinction"
that has no legal standing in interpreting the Massachusetts Constitution.
The Court dismissed the very idea of civil unions,
arguing that "the dissimilitude between the terms 'civil marriage'
and 'civil union' is not innocuous; it is considered a choice of
language that reflects a demonstrable assigning of same-sex, largely
homosexual, couples to second-class status..."
When the Massachusetts Supreme Court handed down
its Goodridge decision last November, the Court "outed"
itself as a rampart of radical legal theory. Given the sweeping
character of that activist decision, the Court would have to work
hard to reach yet a new level of activist overreach. Nevertheless,
it accomplished that achievement on Wednesday. This most recent
decision pushes the question of same-sex marriage on to the national
agenda--and in a hurry.
Conservatives are rightly outraged at this further
demonstration of judicial activism. Nevertheless, the Massachusetts
Supreme Judicial Court--in spite of its own intentions, has actually
helped to clarify the issues at stake. The very idea of "civil
unions" allows tepid and temporizing politicians to find refuge
in a half-way house of legislative imagination. Furthermore, the
imposition of civil union laws would not have produced the same
conservative opposition and popular outrage that will be faced when
homosexual marriage is imposed upon the people of Massachusetts
and the nation.
The politicians of Massachusetts are not the only
political figures on the hot seat. Democratic presidential front
runner Sen. John Kerry, who has sought to assure the base of the
Democratic party of his support for homosexual rights, has tried
to avoid supporting gay marriage by calling for civil unions. Now,
the Supreme Judicial Court of his own state has sent a torpedo through
his campaign's flagship. Now, Kerry will be forced to come out in
either in favor of the Court's decision, or of the constitutional
amendment that would correct the Court's error. This is a political
vise Kerry had struggled hard to avoid.
Former Vermont Gov. Howard Dean, who continues to
receive media attention even as he falls precipitously in the polls,
declared that any state's decision on the issue of same-sex marriage
is "none of the federal government's business." Dean,
who signed the nation's first civil union legislation, has nothing
to lose by pressing this case.
President Bush, who affirmed marriage as a heterosexual
institution in his recent State of the Union address, and warned
that an activist judiciary could force the constitutional amendment
process, released a statement Wednesday. The President set the issue
clearly before the public: "Marriage is a sacred institution
between a man and a woman. If activist judges insist on redefining
marriage by court order, the only alternative will be the constitutional
process. We must do what is legally necessary to defend the sanctity
Even as the Massachusetts court handed down its
decision, a group of conservative leaders were meeting with White
House advisors to call for the White House to take a leadership
role in pushing for a constitutional amendment. The Massachusetts
Supreme Court spoke far more persuasively than the conservatives
could have spoken for themselves. Those who honor and would protect
the institution of marriage must quickly coalesce around a specific
proposal for protecting marriage in the Constitution. The Federal
Marriage Amendment must become a top priority for the Bush administration
and for all who would defend the institution of marriage--even as
it is being destroyed before our eyes.
An article published in Thursday's edition of the
Washington Post explained that the Massachusetts court's decision
"has virtually guaranteed that the issue will be a wedge in
this year's political campaigns." That statement is likely
to go down as one of the great understatements of the year. Until
Wednesday, the issue of same-sex marriage may have been a "wedge"
in this year's political campaigns. After Wednesday, the issue is
more like a bomb. When the smoke clears, this culture's understanding
of marriage will have been either saved or destroyed.