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| GAY MARRIAGE | |
 November 18, 2003  | |
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Massachusetts' highest court ruled in a 4-3 decision Tuesday that the state's ban on same-sex marriage was unconstitutional and ordered the state legislature to come up with a solution within 180 days. Experts debate the impact of the ruling.
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MARGARET WARNER: The core of today's ruling, long awaited by both sides in the gay marriage debate, is reflected in these words from the four justices in the majority. "Currently," they wrote, "a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion," the court said, "is incompatible with the constitutional principles of respect for individual autonomy and equality under the law. Neither tradition nor individual convictions," the court went on to say, "can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families."
Welcome to you both. Kevin Cathcart, what was the court saying today? How sweeping a ruling is this? | ||||||||||||||||||||||||||||
| The court ruling | |||||||||||||||||||||||||||||
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KEVIN CATHCART: (No audio -- network difficulty) ...institution with its guarantees of liberty and equality that the state cannot deprive same sex couples of access to the institution of marriage with all of its rights and responsibilities. This is the first state court to issue this broader ruling. MARGARET WARNER: Ms. Gallagher, how do you see it? Do you see it as that sweeping?
MARGARET WARNER: Mr. Cathcart, the court gave the Massachusetts legislature 180 days to act. Does it have options, short of legalizing gay marriage? KEVIN CATHCART: I don't think it does. If you read the opinion closely, I think the court left the legislature no wiggle room whatsoever and that the legislature's only choice is to reword the marriage statute to make it clear that same-sex couples are entitled to marriage licenses and that if the legislature doesn't do that, it seems very clear that the court will order it. MARGARET WARNER: But just staying with you for a minute, Mr. Cathcart, I've read some legal experts saying today what the court was saying, I'm reading here, they said what was unconstitutional was to bar a gay individual from, quote, the protections, benefits and obligations of civil marriage not outright that it was unconstitutional to bar them from civil marriage. You don't think there's any wiggle room here? KEVIN CATHCART: I don't think there are. I think a lot of people are trying to come up with tortured readings of the opinion, but I think the opinion is very clear. I think the court was very clear about the Massachusetts state constitution and I don't see anything except marriage licenses in 180 days. MARGARET WARNER: And you agree, Ms. Gallagher? MAGGIE GALLAGHER: You know, I really do. I mean Kevin and I may not agree on a lot but we really do agree on that. The court was very clear that this is not about benefits; it's not about health insurance. It's not about the right to visit our hospital partner. It's about the right to the status of marriage, the right to define yourself by your choice of a marriage partner and that it is part of what the court sees as an important trend to raising intimacy and sexual intimacy to the level of a constitutional right. It doesn't ... you know, that whole way of framing the issue of marriage leaves very little room for our historic understanding of marriage as a social institution. I would say none at all. MARGARET WARNER: So, Mr. Cathcart, you know Massachusetts well. You were head of GLAD up in Massachusetts. Do you expect the legislature is just going to go ahead and write this legislation? KEVIN CATHCART: Well, I don't think the legislature in Massachusetts ever just goes ahead and does anything. So I think it's an open question now what's going to happen in the legislature over the next couple of months. What I do think is clear is that same-sex couples will be getting married in Massachusetts in six months, but what the legislature is going to do, that's a bigger question than I can answer. MARGARET WARNER: Now, Gov. Romney said ... he said we will have legislation to comply with the order but at the same time I'm going to be working on getting a constitutional amendment, meaning state constitutional amendment, declaring that marriage is between men and women. Explain how that process would work. |  | ||||||||||||||||||||||||||||
| The constitutional amendment process | |||||||||||||||||||||||||||||
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MARGARET WARNER: Do you agree, Ms. Gallagher, that essentially this threat of passing a state constitutional amendment is an empty one in terms of just the time lag if nothing else? MAGGIE GALLAGHER: You know, Kevin, what if it's not fear, nervousness and hysteria; what if there's a real problem here with both what the meaning of marriage is and who gets to decide what the meaning of marriage is? I don't think it's clear. I think every national poll that's been taken on this issue shows increasing opposition to same-sex marriage. So in addition to the efforts on the ground with whatever the state legislature will or will not do, with whatever the people of Massachusetts will or will not do, there's going to be a really extended national conversation, political battle over it. I'll tell you, it spells real trouble for the Democratic Party from -- all the polls that we show, show that the Republicans are united and this splits the Democratic base because marriage is not an ideological issue. Most people think that marriage is between a man and a woman, that children need mothers and fathers, and it's perfectly rational for the state to prefer marriage, hold it out to the next generation, as the ideal for our children even as it permits people to do other things. MARGARET WARNER: Kevin Cathcart, what do you think are the national implications of this as we just reported President Bush issued a statement while he was traveling today saying he opposed this ruling and he would work with Congress to I think the phrase was defend the sanctity of marriage? |  | ||||||||||||||||||||||||||||
| A national debate on marriage | |||||||||||||||||||||||||||||
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MAGGIE GALLAGHER: Well, it's going to be a national battle from day one because the question is whether people who are married in Massachusetts who are same sex are going to have to be recognized in all 50 states, including the 33 states that have DOMA laws, Defense Of Marriage Acts, and the four states that have put a definition of marriage as between a man and a woman in their state constitutions, so again there's another thing that Kevin and I agree on. It's a big national conversation about what marriage is and what it's for and whether fundamentally it's about adult interests and agendas in sexual liberty and sexual affirmations or if it's about the idea that all of us have an obligation to give our children mothers and fathers. MARGARET WARNER: Mr. Cathcart, do you see this as a confrontation that will ultimately get to the U.S. Supreme Court? KEVIN CATHCART: Ultimately it will because the federal Defense Of Marriage Act will have to be challenged in the federal courts. But I agree there are going to be lawsuits and lawsuits and lawsuits. People are going to get married in Massachusetts and either people from Massachusetts will move to other states, people from other states will go to Massachusetts, they will go home, they will want to be recognized as married. We are going to see significant litigation in state after state. This is a very long-term battle that is beginning not ending with this court decision today. MARGARET WARNER: Kevin Cathcart, Maggie Gallagher, thank you both. | |||||||||||||||||||||||||||||
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Today's
ruling kicks the legal and political fight over gay marriage to a new
level. Where will it lead? For that, we turn to Kevin Cathcart, executive
director of Lambda Legal, a gay and lesbian legal and advocacy group.
He was formerly director of the group Gay and Lesbian Advocates and
Defenders, or GLAD, which brought the case in Massachusetts; And Maggie
Gallagher, president of the Institute for Marriage and Public Policy,
and author of "The Case for Marriage."
MAGGIE
GALLAGHER: Yeah, I do see it as that sweeping. And I think there are
people who are thinking that they can come out of this with a civil
union legislation. And I think reading the court decision, they're wrong.
This court said very clearly that marriage in the state of Massachusetts
has nothing to do with its great historic purposes of getting mothers
and fathers for children with ... getting men and women together to
make the future happen. It's not an institution that's about creating
the next generation and protecting it and making it happen. It's now
in the state of Massachusetts an institution that's about intimacy,
the right to define yourself however you want. It's about, in other
words, adults' agenda which is the way a lot of the court decisions
have gone over the last 30 years with regard to marriage. 
KEVIN
CATHCART: Well, the constitutional amendment process in Massachusetts is much
more complicated-I think this is true of most states-- than the legislative process.
In order to amend the Constitution there have to be votes in the House and Senate
of two successive legislative sessions for example this year and next year or
next year and the year after. And if the amendment passed the House and Senate
in two consecutive years, then in 2006, it would become a ballot question that
would go to the people. I think based on the polls in Massachusetts done as recently
as October of this year, showing significant support for not changing the Constitution
and significant support for recognizing the right of same-sex couples to enter
into marriages, civil marriages, I'm actually confident that by 2006 this will
be a largely dead issue, that people in Massachusetts will have by then lived
for several years with friends, neighbors and relatives in same-sex married relationships
and whatever kind of fear or nervousness or hysteria is out there will have toned
down dramatically. I believe that we can then win the referendum. 
KEVIN
CATHCART: You know, I think that the court decision actually addressed this issue.
It is ironic the people who claim to be defending the sanctity of marriage are
the people who are trying to close off the institution. And the people who are
trying to get married are being told, oh, no, you should stay away from it. I
think nothing defends the institution more than the fact that there are significant
numbers of people who are trying to get in, same-sex couples who want to have
their relationships recognized, take on the rights and responsibilities. And I
agree completely that we are entering a new wave of a huge national debate about
the topic. That battle was joined this morning -- if people had not been a part
of it before. I do think there's a difference between the national polls and the
polls in Massachusetts. I think that part of the reason for that is because there
has been more debate, more visibility and a lot more discussion in Massachusetts
over the last several years as this case wound its way through the courts. So
I don't know that we can make assumptions about the outcome in Massachusetts based
on national polls but I think we need that debate and from our side we welcome
that debate because what we want to do is show people who our families are, why
we want and need these protections. And I believe we will convince people. 
MARGARET
WARNER: Very briefly before we close, I want you both to just say... tell us what
happens to all of these-- there's some nearly 40 states that have defense of marriage
acts declaring it's between a man and a woman and there's a federal law to that
effect. Ms. Gallagher.