MASSACHUSETTS isn’t the first state whose highest court has faced this issue. In 1993, the Hawaii Supreme Court sent a strong message when it ruled that Hawaii had discriminated against gay men and lesbians by denying them the right to marry. At the time, the four justices threw the case back to the lower courts, telling the state that it needed a " compelling reason " to restrict civil marriage to one man and one woman. As the lawsuit wound its way through the judicial system, however, Hawaiians overwhelmingly defeated gay marriage in a 1998 referendum amending the state’s constitution to restrict marriage to heterosexual couples.

Then, of course, came Vermont, and its supreme court’s historic 1999 decision to extend marital benefits to same-sex couples under that state’s constitution. In the ruling, known as Baker v. State, the court unanimously found that Vermont was obliged to grant gay and lesbian couples " the common benefits and protections that flow from marriage under Vermont law. " Justices left it up to legislators to figure out how to make those benefits available — hence, the first-in-the-nation 2000 law that created civil unions for same-sex couples.

Civil unions have a lot of support here in Massachusetts. During last year’s gubernatorial race, for example, every Democratic candidate except one favored such unions. (The exception was former labor secretary Robert Reich, who supported full marital rights for same-sex couples.) Yet the seven same-sex couples who are plaintiffs in this case — Hillary and Julie Goodridge, from Boston; David Wilson and Robert Compton, from Boston; Gloria Bailey and Linda Davies, from Orleans; Richard Linnell and Gary Chalmers, from Northbridge; Maureen Brodoff and Ellen Wade, from Newton; Gina Smith and Heidi Norton, from Northampton; and Ed Balmelli and Michael Horgan, from Boston — are clear in their desire to win full access to marriage. After all, civil unions relegate gay people to a separate, and unequal, track as compared to civil marriage. Explains the plaintiffs’ attorney, Mary Bonauto, of Gay and Lesbian Advocates and Defenders (GLAD), in Boston, " To create a separate system just for gay people only perpetuates the stigma. "

If the state applies the statute in a way that excludes the marriages of same-sex couples, Bonauto argues in the plaintiffs’ 113-page legal brief, then it violates the rights of gay men and lesbians guaranteed under the Massachusetts Constitution. For one, she says, the constitution’s liberty protections allow people to choose the person whom they wish to marry. Numerous cases at the federal level — such as US Supreme Court decisions striking down bans on interracial marriage and on prisoners getting married — recognize the ability to pick a spouse as a " fundamental right. " Time and again, as Bonauto asserts, " the Supreme Court has said all people are entitled to make that choice without unjustifiable state interference. " For another, the Massachusetts Constitution contains far-reaching equality provisions — indeed, the document starts by declaring, " All people are born free and equal and have certain natural, essential, and unalienable rights " — to ensure that residents fare equally under the law. Since heterosexuals can choose whom to marry, homosexuals should be able to do the same. As Bonauto puts it, " These are enduring principles that must be applied to modern times. That language has to mean something today. "

The Attorney General’s Office, for its part, maintains that the constitution does not provide same-sex couples with a right to marry. Assistant Attorney General Judith Yogman declined (through AG spokesperson Corey Welford) to comment on the case because it’s still pending. In her 128-page legal brief, she contends that " nothing in the Massachusetts Constitution requires the allowance of same-sex marriages. " On the contrary, she claims the state’s marriage and divorce laws, taken as a whole, show the legislature intended to apply them only to the union of a man and a woman. And as the state’s supporters see it, permitting gay marriage would, in effect, redefine the institution. " The term relates to a man and a woman, a husband and a wife, and always has through thousands of years of history, " says Chester Darling, a Boston attorney best known for winning a 1995 case before the US Supreme Court barring a gay contingent from the St. Patrick’s Day parade in South Boston and who authored one of the 15 amicus briefs on behalf of the state. To accommodate the seven couples, he explains, " we’d have to change the very definition of marriage. "

According to the AG’s Office, the state has a " legitimate interest " in limiting civil marriage to men and women. Historically, the office argues, such a restriction stems from the state’s goal of encouraging procreation. By contrast, says Yogman in her brief, same-sex couples " cannot procreate on their own and therefore cannot accomplish the ‘main objective’ of marriage. " The limit also stems from the state’s " interest " in fostering child-rearing in the context of a natural, biological union, in which a mother and father can raise children. Dwight Duncan, a law professor at Southern New England Law School, in North Dartmouth, has written a brief for the state that lays out the rationale linking marriage, procreation, and child-rearing. A marriage law that excludes gay couples " does not prohibit other arrangements, " he explains. " But it does provide a kind of Good Housekeeping seal of approval on the part of the state and encourages that children have a mother and father. "

Ultimately, the state and its supporters claim that permitting same-sex marriages would constitute such a dramatic change in public policy that it should come from the legislature. Darling, in fact, sets out in his brief to establish what he calls " a constitutional mandate " that gives the legislature jurisdiction over family law. According to the constitution (Part Two, Chapter III, Article V), " All causes of marriage, divorce, and alimony ... shall be heard and determined by the governor ... until the legislature shall, by law, make other provision. " This language, Darling asserts, " plainly states all conditions of marriage are to be determined by the General Court, " meaning the Massachusetts legislature. An SJC ruling that allowed same-sex marriage would amount to what he and his colleagues describe as " unprecedented judicial activism. "

But those who back the plaintiffs see things differently. For the past decade, the courts and the legislature in Massachusetts have permitted gay couples to adopt children. How, supporters wonder, can the state say it’s okay for a gay couple to become legal parents of a child, and yet not to become legal spouses to each other? Doesn’t that, they ask, undermine the value and importance of family?

All that said, in today’s conservative political climate, throwing this issue to the legislature would mark a step backward for same-sex-marriage supporters. For 10 long years, gay-rights advocates have pushed for legislation that would grant health coverage to domestic partners of gay state employees — to no avail. Just because the legislature can address same-sex marriage doesn’t mean that it will. Nor does it mean that the couples in this pending lawsuit don’t belong in court. At some point, says Anne Lambert, an attorney with the American Civil Liberties Union, in Boston, something higher than statutory rights has to come into play — i.e., constitutional rights. The very job of the courts is to decide what the constitution guarantees and review restrictions on those guarantees. " These rights, " Lambert explains, " trump the argument [that] legislators ought to take pen to paper and work it out for themselves. " She adds, " It’s the obligation of the SJC to make the constitution real in the world, in the everyday lives of citizens. "

Indeed. According to a Boston Globe/WBZ-TV poll released last week, a slim majority of Massachusetts residents favors granting marital rights to same-sex couples — exactly 50 percent, as compared to six percent undecided and 44 percent opposed. An even greater number backs the implementation of civil unions. But despite this popular support, no one expects the legislature’s current leadership — i.e., Tom Finneran — to allow any legislative remedies to the inequality to proceed. Even if the legislature did pass a civil-unions-style compromise, can anyone rest assured that Governor Mitt Romney would do as Vermont’s Howard Dean did, and sign it? Romney, if you recall, is the same man who boasted during a televised gubernatorial debate last fall: " Call me old-fashioned. It’s just my belief that marriage should be preserved for a husband and a wife of opposite genders. " Would he really risk his political career to sign such legislation?

Besides, the court has an obligation to protect the minority from the abuses and prejudices of the majority — which is exactly what the exclusion of same-sex couples from civil marriage boils down to. Boston College law professor Charles Baron echoes the sentiment among many legal observers when he characterizes the state’s reasons for prohibiting gay marriage — essentially, that marriage is about procreation — as " fanciful and flimsy at best. " After all, heterosexual couples tie the knot without any intention of having children. They have children without any intention of getting married. And, on the flip side, gay and lesbian couples commingle and raise children, yet wish to marry. Concludes Baron, " The real argument is that society is having a hard time thinking about same-sex relationships as being sanctified by marriage, even if it’s state sanctification. "

OVER THE COURSE of its 310-year history, the SJC has led the nation’s courts in standing up for minority groups whose rights had been overlooked by the majority. In 1783, just three years after the Massachusetts Constitution had been ratified and 82 years before the 13th Amendment to the US Constitution abolished slavery, the justices took the courageous stance of condemning black slavery in the Bay State under the constitution’s guarantee of equal protection. Likewise, in the mid 1800s, the court struck out on its own and developed case-law precedent to protect criminal defendants. This trend has continued throughout modern times. For example, in 1977, the SJC became the second state supreme court to ensure a patient’s " right to die, " based on a constitutional right to privacy. Three years later, it stood apart when it invalidated the state’s death penalty as cruel and unusual punishment. As BC’s Baron observes, " This court’s been willing to lead in ways that protect individual rights. Now, it could take advantage of that history. "

The SJC could take advantage of more recent trends, too. Over the past decade, the court has repeatedly extended the legal notion of family to include gay men and lesbians. In 1993, justices made a pivotal decision known as Adoption of Tammy: they ruled that a lesbian couple could adopt a child together, thus opening up gay adoption in Massachusetts. Six years later, in 1999, the SJC pioneered legal rights for " de facto " parents — non-biological parents who’ve participated in a child’s upbringing. In one ground-breaking case, E.N.O. v. L.L.M., five justices found that a lesbian who had signed a " co-parenting agreement " with her former partner of 13 years was, in fact, a de facto parent, and entitled to visitation rights after the couple split up. In that case, when the former partner became pregnant and gave birth to a boy, she was the child’s only " legal " parent; the co-parenting agreement expressed the couple’s desire to raise a child together. At that time, then–chief justice Ruth Abrams acknowledged the place of non-traditional families nowadays. " Recognition of de facto parents is in accord with notions of the modern family, " she wrote in the June 29, 1999, decision. " It is to be expected that children of non-traditional families ... form relationships with both parents, whether they are legal or de facto. "

Significantly, the two justices who’d dissented from the majority opinion feared it could pave the way for gay marriage. Former justice Charles Fried, in a stinging dissent, said the E.N.O. v. L.L.M. order amounted to a " denigration of parental rights " and an " unwarranted judicial intrusion into family relations. " He suggested that it marked " a clear step in granting legal force to [same-sex] unions, " which he regarded as too " difficult, controversial, and important " for the courts to determine.

Meanwhile, as the SJC has recognized gay and lesbian families, it has also acknowledged that unmarried couples do not enjoy the same rights as their married counterparts. Take the 1998 case known as Wilcox v. Trautz, which involved a heterosexual couple who’d lived together. When the pair split up, the court upheld a cohabitation agreement that the two had drawn up. In its decision, the SJC effectively instructed those who don’t marry to draft such contracts — for without them, it said, unmarried couples have no protections under the law. Less than a year later, the SJC again made clear the special status of marriage when it struck down a City of Boston policy extending health benefits to domestic partners of gay employees. The court determined Connors v. City of Boston, an insurance suit at its core, strictly on a technicality. It found the city’s policy " inconsistent " with a 1955 state law that allows municipalities to grant insurance to " their employees and their employees’ dependents " — which the law defined as employees’ spouses, children under 19, and certain children over 19. Only the legislature, the court ruled, could amend the law’s definition of " dependents " to include domestic partners. At the same time, though, the court gave a nod toward the hardships gay couples face simply because they cannot marry. " We recognize that some household members ... may be without a critical social necessity, " Justice Margaret Marshall, then an associate, wrote in the July 8, 1999, ruling. The future chief justice even prodded legislators to change the outdated legislation " to reflect these new social and economic realities. "

Given the trajectory of court precedent to date, the SJC would seem receptive to arguments laid out by the seven couples. On the face of it, same-sex marriage represents the next logical step in the court’s family-law decisions. Boston lawyer Peter Zupcofska, who specializes in family law and who drafted one of the 11 briefs in support of the couples, sees nothing but " creating family " in the court’s 1999 decision to allow gay adoption. " Once that’s done, " he says, " the court should address the parents. Why not legitimize the child and let those parents have a state-recognized relationship? " If anything, existing precedent undermines the state’s purported interest in barring gay marriage: the state’s acknowledgement of same-sex couples as a family for parenting purposes flies in the face of any efforts to say they cannot constitute a family for marriage purposes.

Even opponents of gay marriage admit that past decisions set up a paradox. Concedes Duncan, of Southern New England Law, " To allow gay couples to adopt, to a degree, undercuts the state’s ostensible interest in the link between marriage, procreation, and child-rearing. " He hastens to note, however, the precedent doesn’t " totally negate " the state’s reason, which is to promote a more " optimal " child-rearing environment.

Regardless of precedent and history, there’s one wrinkle. Harvey Silverglate, a Boston civil-liberties lawyer and long-time court watcher (as well as a Phoenix contributor), has no doubt that the SJC is inclined to rule that same-sex couples must receive the same legal rights as opposite-sex couples. But, he warns, " the current SJC is highly political. " In recent years, it’s had to fight the legislature for control of the judiciary — indeed, legislators have had their hands in everything from hiring and placing courthouse personnel to trying to wrest the judicial-appointment process away from the courts. Rather than engage in what Silverglate calls a " pitched battle, " the court has appeased the legislature. He points to the 2001 lawsuit over the Clean Elections Law. Though the justices ruled that candidates were entitled to receive funding under the 1998 referendum, as Silverglate says, " they were very ginger about ordering the legislature around. " Even after legislators flouted the court’s decision and refused to funnel money into the Clean Elections candidacies, the most the SJC did was tell them to sell furniture. " This SJC, " he adds, " seems willing to bend the law so as not to anger the legislature. "