On November 18, 2003, the Court decided, by a vote of 4–3, that excluding same-sex couples from marriage is unconstitutional. The
Massachusetts Supreme Judicial Court said it was asked to determine whether Massachusetts "may deny the protections, benefits and obligations conferred by
civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens." The plaintiffs had asked the Court to say that denying marriage licenses to same-sex couples violated Massachusetts law. Instead the opinion said: "We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." Arthur Miller, a
Harvard law professor, said he thought the legislature might exploit the Court's 4–3 division to get it to accept a status much like marriage under another name. Although the arguments and the decision turned entirely on questions of state law, she cited in her discussion of the Court's duty the
U.S. Supreme Court's decision the previous June in
Lawrence v. Texas that invalidated
sodomy laws: "Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. 'Our obligation is to define the liberty of all, not to mandate our own moral code.'" She rejected the plaintiffs' contention that the state's marriage licensing law, which mentions marriage but never the gender of the parties, could be interpreted to permit same-sex marriages. The lack of a definition, she wrote, shows the legislature meant
marriage in "the term's common-law and quotidian meaning". Turning to whether the state's denial of marriage rights to same-sex couples violated the state constitution's guarantee of equal protection and due process, she noted that "The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language." Discussing the proper standard for review, she found that the Court did not need to consider whether the plaintiffs' claims merited
strict scrutiny, a more thorough than usual standard of review, because the state's marriage policy did not meet the most basic standard of review,
rational basis. She then considered and dismissed the three rationales the DPH offered for its marriage licensing policy: "(1) providing a 'favorable setting for procreation'; (2) ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and (3) preserving scarce State and private financial resources." The first, she wrote, incorrectly posits that the state privileges "procreative heterosexual intercourse between married people". Rather "Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married." The misconception that "'marriage is procreation'", she wrote, "confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect." The second, the marriage of a man and a woman as the "optimal setting for child rearing", a claim she said many Massachusetts statutes and the notion of "the best interests of the child" refuted, she found irrelevant, in that denying marriage licenses to one class of persons does not affect the marriage patterns of the other class. She turned the argument against the DPH: "the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws." She concluded that "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation." She dismissed the third rationale as an unjustified generalization about the economic interdependence of same-sex partners. Later in the opinion she summarized this analysis, saying the DPH's arguments were "starkly at odds with the comprehensive network of vigorous, gender-neutral laws promoting stable families and the best interests of children." Addressing the concerns expressed in various amicus briefs about the potential harm same-sex marriage might cause to the institution of marriage, she wrote: She then reviewed the history of constitutional law as one of "'the story of the extension of constitutional rights and protections to people once ignored or excluded'", quoting the U.S. Supreme Court once more,
United States v. Virginia. She reviewed several examples related to marriage, including married women acquiring legal status apart from their husbands, the invalidation of anti-miscegenation laws, and
no-fault divorce. As for creating conflict with the laws of other states, she wrote: She summarized the Court's decision: Considering what relief to grant the plaintiffs, she noted that the
Court of Appeal for Ontario had "refined common-law meaning of marriage" and then provided the Court's meaning: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." The legislature retained its "broad discretion to regulate marriage".
Concurrence Justice
John M. Greaney authored a
concurring opinion in which he said he shared much of Marshall's analysis, but viewed the denial of marriage licenses to same-sex couples as sex discrimination: "The marriage statutes prohibit some applicants, such as the plaintiffs, from obtaining a marriage license, and that prohibition is based solely on the applicants' gender." Since, in his view, "constitutional protections extend to individuals and not to categories of people", Massachusetts is not discriminating on the basis of sexual orientation but restricting a person's choice of spouse on the basis of gender, a classification he found the state had not justified.
Dissenting opinions Justices
Robert J. Cordy,
Francis X. Spina, and
Martha Sosman filed separate dissents from the Court's ruling. Justice Cordy stated that "the Legislature could rationally conclude that it furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children." He continued that "this case is not about government intrusions into matters of personal liberty," but "about whether the State must endorse and support [the choices of same-sex couples] by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them." Justice Spina wrote that "[W]hat is at stake in this case is not the unequal treatment of individuals or whether individuals rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights." He wrote that the "power to regulate marriage lies with the Legislature, not with the judiciary." Justice Sosman noted that "[p]eople are of course at liberty to raise their children in various family structures, so long as they are not literally harming their children by doing so. But that does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits." She went on to argue that "[a]bsent consensus on the issue, or unanimity amongst scientists studying the issue, or a more prolonged period of observation of this new family structure, it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that redefinition will not have unintended and undesirable social consequences." She concluded that "[a]s a matter of social history, [the majority] opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration." ==Reaction and first same-sex weddings==