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Remedying injustice
Same-sex couples deserve the right of marriage. Plus, Governor Romney’s bad budget.


NEVER BEFORE HAS mainstream culture been as primed to grant full marital equality to same-sex couples as it is now. Last month, the Court of Appeal for Ontario ruled that gay-male and lesbian couples should be allowed to marry. Last week, the United States Supreme Court struck down a Texas law prohibiting sex between two people of the same gender; the language in Justice Anthony Kennedy’s opinion was so respectful of the dignity of gay people that when he read his decision from the bench, a number of courtroom observers openly wept.

This month, the Massachusetts Supreme Judicial Court is expected to rule in the case of Goodridge et al. v. Department of Public Health. If decided for the plaintiffs, the case would give same-sex couples in Massachusetts the right to marry. This would be the right and just thing to do.

ALTHOUGH SOME still try, no one can legitimately argue that lesbians and gay men are not closely woven into the fabric of our society. Census data from 2000 shows that there are at least 17,099 same-sex couples in the Commonwealth. Gay people, as the ’80s-era bumper sticker goes, are everywhere. And the plaintiffs in Goodridge demonstrate this: among the seven couples are an investment adviser, a Web-site developer, an engineer, an administrator of higher education, a dentist, and a business vice-president; attorneys, social workers, public-school teachers, and nonprofit administrators; and eight parents.

Some of their experiences show just how inadequate wills, health-care proxies, and powers of attorney — the only current means by which gay and lesbian couples can legally protect their relationships — actually are. Take Hillary and Julie Goodridge, the lead plaintiffs in the lawsuit. Eight years ago, Julie gave birth to the couple’s daughter Annie via cesarean section. During the birth, Annie inhaled fluid and was rushed to the neonatal-intensive-care unit. With the medical emergency, Hillary — who was a legal stranger to both Annie, whom she obviously hadn’t yet adopted, and Julie, to whom she obviously is not married — was thrown into a horrifying limbo. She immediately followed Annie out of the operating room to the neonatal unit, where nurses at first tried to prevent her from seeing her daughter. When she left Annie’s side to go back to Julie and update her about Annie’s status, she had to present herself as Julie’s sister in order to gain access to the surgical-recovery room. By the time she left Julie to go back to see Annie, the nursing shift at the neonatal-intensive-care unit had changed and no one knew who she was. For 20 hours, Hillary went back and forth between Annie and Julie, sometimes cajoling the nurses, sometimes pleading with them, and sometimes lying to them in order to gain access to her infant daughter and her life partner. Before Annie’s birth, the Goodridges had executed health-care proxies so that they could have access to — and make medical decisions for — each other in an emergency. But in a true emergency, such as the one they faced with Annie’s birth, the proxy wasn’t worth the paper it was printed on.

Attorney General Tom Reilly has put forth three arguments for continuing to deny same-sex couples the right to marry: the state’s interest in preserving the link between marriage and procreation; creating a favorable setting for raising children; and containing costs to the Commonwealth. As the Goodridges’ story shows, procreation isn’t limited to heterosexual couples. Even if it were, moreover, it’s not a legitimate state interest. No state in the country, for instance, mandates fertility testing before granting marriage licenses. Nor are marriage licenses revoked if a couple opts not to have children. And if it’s in the state’s interest to ensure that children are raised by heterosexual couples, then why does the Department of Social Services actively recruit gay and lesbian couples to become foster and adoptive parents? And why is Massachusetts one of the handful of states in the country that allow second-parent adoptions, which permit both partners in a gay or lesbian relationship to be the legal parents of the same child? As for cost containment, well, since when does the state engage in means testing before granting marriage licenses?

There’s no question that the notion of two men or two women marrying still seems radical. It’s easy to forget that the institution of marriage has endured four dramatic changes in the last six decades: the erosion of the doctrine of coverture, which had essentially ensured that a woman lost her legal rights upon entering into marriage; giving married people access to contraception; ending racial discrimination in marriage by allowing people of different races to wed; and granting married people the right to dissolve their unions via no-fault divorces.

No serious person can argue that letting Hillary and Julie Goodridge wed is more radical than the changes marriage underwent by letting women keep their legal identities after saying "I do." No reasonable person can argue that letting Hillary and Julie Goodridge wed takes something away from heterosexual families. No sensible person can argue that there’s any reason at all to continue, as Chief Justice Margaret Marshall put it to Assistant Attorney General Judith Yogman during Goodridge arguments on March 4, "restricting marriage to certain categories of people."

All that said, some may credibly argue that this is a matter for the legislature to decide. Indeed, Reilly’s office argues just that in its brief opposing same-sex marriage. Yet this line of reasoning ignores that ours is a constitutional democracy with a judiciary in place to, among other things, protect the rights of the minority from the tyranny of the majority. A task that politicians — who obviously owe their livelihoods to the majority — are only rarely up to. Indeed, laws prohibiting interracial couples from marrying were not struck down by the federal courts until 1967. If we had left it up to legislatures to end the discrimination, we’d still be waiting for justice.

Others who are sympathetic to the notion of legal protections for gay relationships, yet uncomfortable with the idea of civil marriage for same-sex couples, advocate the creation of a parallel system of rights and benefits. This is what the Vermont legislature did in 2000 after that state’s high court ruled that prohibiting gay couples from marrying violated the Vermont Constitution. Instead of offering a remedy itself, the court ordered the legislature to deal with the discrimination. The legislature came up with something no one on either side of the legal case had ever conceived of: civil unions. There’s a problem with this separate-but-equal system: it’s not marriage. Civil unions do not come with all the rights and benefits that flow from marriage. And in leaving the solution up to the state legislature, the Vermont high court abdicated its judicial responsibility in cowardly fashion. It’s important to remember that in this country, marriage is nothing more than a civil contract. New legislation does not have to be enacted in order to find that current laws apply to all citizens, regardless of their sexual orientation. And nowhere in the current laws does it state that marriage is for heterosexual couples only. Those who say that it is are engaging in religious-based arguments.

By ruling in favor of the plaintiffs in Goodridge, the Massachusetts Supreme Judicial Court would go where no court in the United States has gone before. When it comes to granting civil-rights protections, however, that’s a proud place to be. And that’s where we hope to see the court Monday, July 14, the day the Goodridge decision is expected to be handed down.

WE COULDN’T let Governor Mitt Romney’s budget vetoes pass without condemnation. Nor could we let City Councilor Chuck Turner’s vocal protest of them pass without praise.

Before signing the $22.1 billion plan, Romney vetoed $201 million in spending. Among the cuts? Local aid, to the tune of $57 million — the third cut municipalities have endured since first losing $175 million last July. More than $1 million was slashed from services for the mentally retarded. The budgets of eight district courts were reduced by a fourth.

Perhaps most shocking is that the man who promised voters he could balance the budget without touching "essential" services vetoed the plan to keep open the Fernald School, in Waltham, which serves the state’s most severely mentally retarded. If taking care of our poorest, our neediest, and our residents least able to help themselves isn’t essential to the mission of our state government, then what is? Ditto for Romney’s decision to cut all funding for the Massachusetts Legal Assistance Corporation, which assists the state’s poorest with legal remedies for problems ranging from housing discrimination to domestic violence.

Turner’s passion in protesting the budget and Romney’s vetoes are startling compared to the caution evinced by Beacon Hill pols too timid to pursue corporate-tax reform and tax hikes to stem the flow of red ink. "It’s time for the people of this state to rise up and say no in clear and certain terms and not wait for the ballot box in order to express frustration," says Turner, who was arrested during his protest Monday.

The state’s public safety net is vanishing before our eyes. What’s it going to take to get it back?

What do you think? Send an e-mail to letters@phx.com

Issue Date: July 4 - July 10, 2003
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