Full Text of Oral Argument

	LIBEL by New York Times by J. Edward Pawlick Order Yours Now!

Short Summary in Plaintiffs’ Brief Explains the 'Nerdity' of Court
This short summary, contained in the Brief of the plaintiffs, is an excellent example of how the loving relationship of men and women, since the dawn of time, has been turned into "intellectual" brain teasers, complete with legal jargon, which only a law school nerd, hidden in a dark library all day and night, would want to take the time to comprehend. Listening to these judges, one realizes that some of them believe that their discussing this outdated feminist theory makes them ap-pear "intelligent" and superior to the rest of us. Summary of the Plaintiff's Argument [As Written in Plaintiff's Brief] Like many of their family members, colleagues and neighbors across this state, the [gay] plaintiffs each sought marriage certificates from their respective cities and towns with medical certificates and license fees in hand, only to be refused because they sought to marry a partner of the "wrong" sex. The defendants who advised the clerk to take this position cannot anchor their instruc-tion in the marriage-licensing scheme of Gen-eral Laws chapter 207 since it contains no prohibition on an individual marrying someone of the same sex. Any of the few gendered terms in c. 207 can be read gender neutrally. If the statutes are construed to exclude the plaintiffs, then the statutes are unconstitutional as applied. First, the right to marry the person of one's choice is protected under the liberty and due process protections of the Massachusetts Constitution, and this Court's precedents of respect for private personal decisions and expressive and intimate associations. Under strict scrutiny in the context of the balancing test used by this Court, none of the defendants' asserted interests to date of procreation, childrearing and conserving resources can be given any weight because they bear no relationship at all to the		plaintiffs' exclusion from marriage. Equality principles also require that plaintiffs share in the same right to marry as that of their fellow citizens. This case presents a textbook example of infringement on a fundamental right that cannot survive traditional strict scrutiny. The application of the marriage laws to exclude plaintiffs because they have chosen a partner of the "wrong" sex triggers strict scrutiny as sex discrimination. (pp. 48-49). Just as barring all individuals from interracial marriage constituted racial discrimination, barring all individuals from marrying a person of the same sex constitutes sex discrimination. There are no material differences between same-sex and different-sex couples. Sexual orientation classifications are implicated by defendants' application of the marriage laws because excluding individuals who wish to marry a person of the same sex is a nearly perfect proxy for excluding gay men and lesbians. While the level of review to be accorded to sexual orientation classifications is one of first impression in this Commonwealth, there is persuasive authority in this court, other state courts, and in federal jurisprudence to treat sexual orientation as a suspect class. So wide of the mark are the defendants' asserted reasons for excluding the plaintiffs from marriage that they do not survive rational basis review. As a matter of logic and common sense, none of the interests is advanced by the plaintiffs' exclusion from marriage. Excluding from marriage those individuals who wish to marry a person of the same sex is both arbitrary and extremely harmful to the class of gay men and lesbians. Accordingly, this Court should declare that the plaintiffs are entitled to receive marriage licenses.

This 37-Minute Oral Argument Is Only Debate Allowed

The oral argument before the Mass. Supreme Court on gay marriage was so revealing that we prepared this Special Section so you can see and decide for yourself as you read this fascinating episode in American history.

This text is found only at MassNews. It was not easy or cheap to make a transcript. We think you will agree it was worth the time and effort.

ATTY. BONAUTO: Good morning, Your Honor. It's Mary Bonauto here for the appellants Hillary and Julie Goodridge and the six other plaintiff couples . .

ATTY. BONAUTO: I'm sorry. I apologize, your Honor. We're here for the plaintiff-appellants Hillary and Julie Goodridge and the six other couples, all of whom are in this courtroom today. With me is my colleague Gary Buseck and my other colleagues from GLAD.
The Plaintiffs stand before this court seeking nothing more and nothing less than the same respect under our laws and Constitution as all other people enjoy. The same "liberty right" to marry the person of their choice and the same "equal right" to marry on the same terms applied to other people. Love and commitment infuses the relationships of these seven couples. They have been together between six, and in the case of Plaintiffs Linda and Gloria, who celebrate their 32nd anniversary next month, 32 years. They work, they raise children, they volunteer in their communities. Everyone is aging, everyone is getting older, but some are also facing illness and the pressures of retirement, but because they cannot marry, they have added burdens. They are locked out of a precious right, one of the most important decisions any person can make in life, one that transforms an individual's legal status from an individual into a family with reciprocal obligations and extensive protections for that family.

IRELAND: Ms. Bonauto, let me ask you a question. The Commonwealth tells us, in its brief, that this is such an important public policy question that we should leave it to the legislature. Why do you think that this is an issue that we should decide?

ATTY. BONAUTO: I think it's an issue this court should decide because it's the institutional obligation of this court to decide constitutional issues. We are simply asking this court to engage in a very familiar process, which is reviewing a statute and deciding whether or not that statute transgresses constitutional limitations. Courts in the past, state courts and the federal courts both, have reviewed limitations on marriage having to do with race, having to do with poverty, having to do with incarceration. There was no marriage exception to the justiciability of those issues in those cases there, and there shouldn't be here either.

Justice Ireland

COWIN: Why should we do something that no other state - virtually no other state has done?

ATTY. BONAUTO: Certainly the courts in Hawaii and Vermont have cast grave doubt about the constitutionality of these existing schemes. It's this job . . .

ATTY. BONAUTO: I absolutely want to address Vermont, but to answer your first question, Your Honor, this court should do so because it is the right thing to do. The exclusion of the plaintiffs from marriage simply - it violates the fundamental right that these plaintiffs enjoy with all others in this Commonwealth. That exclusion of the plaintiffs discriminates on the invidious basis of sex and sexual orientation and even if this court were to apply rational basis review, rational basis review is not toothless.
The reasons offered by the defendants as well as their amici are either not legitimate and totally arbitrary or they bear no relationship to the plaintiffs' exclusion from marriage.

GREANEY: Picking up on that question, and I understand your argument that if the statute is unconstitutional, then obviously there is no basis for us to send it back to the legislature or leave it to the legislature. As it's played out politically in other states, from what I can see, Hawaii sent a strong signal they were going to do it and then the Constitution got amended. Alaska, a trial judge did it and the Consti-tution got amended. Vermont did it, and then they had that civil union business as a compromise. Politically, if we were looking at a consti-tutional amendment, we are looking at what, at the earliest 2006?

ATTY. BONAUTO: November 2006, Your Honor.

GREANEY: Because the one that was making its way through the legislature last year is now more or less defunct?

Justice Greaney

ATTY. BONAUTO: Correct.

And I suspect, Your Honor, that if this court were to grant the relief of plaintiffs' request here, which is the issuance of marriage licenses, even in a worst-case scenario, picking up on your line of thinking, Your Honor. Even in a worst-case scenario, what we would have is three full years of married couples in this Commonwealth.

ATTY. BONAUTO: No, we'd be ordering it - Hopefully, this Court would order extension . . .

GREANEY: You would declare it under-inclusive?

ATTY. BONAUTO: Exactly, extension. That's exactly what the plaintiffs are seeking.
So even in a worst-case scenario, Your Honor, we're talking about three years in this Commonwealth of married couples, and I think by the end of those three years what people would see very easily is that nothing has been taken away from them, nothing has been taken away from their marriages. But these other families who are now allowed to marry have been strengthened and that's good for the community as a whole.
Take Vermont, for example, the opponents in Vermont argued strenuously that the civil union system was the exact same thing as marriage, it was masquerading as marriage. Certainly, at just two years, the situation there has completely calmed down and civil unions are not an issue anymore.

GREANEY: And, contrary to the argument of the Attorney Generals from the other states, the Vermont situation didn't set off a firestorm throughout the rest of the country.

GREANEY: So presumably, if you win, and I'm certain you would, this would not either.

ATTY. BONAUTO: That is correct, Your Honor, and in that respect, I would just say that the brief of the three states that was filed in this regard is basically a plea to this court to under-enforce the constitutional guarantees that all citizens in Massachusetts enjoy so that they don't have to worry about addressing the issues of gay families in their states.

MARSHALL: Ms. Bonauto, could I ask you a question about the Vermont Constitution, which I have not read. Is there no equal protection guarantee in the Vermont Constitution?

ATTY. BONAUTO: The Vermont Constitution is very different from the Constitution of the . . .

MARSHALL: I understand. Are there no equal protection guarantees?

ATTY. BONAUTO: No, there is nothing that explicitly says that. There's no, actual mention of equality at all in the Constitution. There are common benefits clauses, something like an amalgam of our Article VI and VII, there is no equivalent to Article I, there is no equivalent to Article X.

Justice Marshall

ATTY. BONAUTO: Precisely.

And to follow up on the question of Justice Cowin a moment ago about Vermont. It's certainly the plaintiff's view that the Vermont approach is not the best approach for this Court to take. The reason for that is that when it comes to marriage, there really is no such thing as separating the word "marriage" from the protections it provides. The reason for that is that one of the most important protections of marriage is the word because the word is what conveys the status that everyone understands as the ultimate expression of love and commitment and everyone understands that that spouse of yours has an automatic right to be by your side no matter what the circumstances. I'd also say that creating a separate system just for gay people simply perpetuates the stigma of exclusion that we now face because it would essentially be branding gay people and our relationships as unworthy of this civil institution of marriage.

CORDY: You would see this case, then, as somewhat parallel to the Supreme Court's decision in Loving in Virginia when it struck down the miscegenation statutes?

ATTY. BONAUTO: I would, Your Honor. Certainly, with respect to miscegenation, Massachusetts, Virginia, other colonies, unfortunately, had maintained such discriminatory laws on their books and as the Constitution changes and we recognize that more people are included within society, equality concerns certainly demand that civil marriage, which is created by the state, has to be modified in accord with those equality guarantees.

COWIN: Then aren't I . . .

CORDY: Let me follow up on the Loving case a little bit. I mean, it strikes me that Loving, on the surface, is similar, but really is quite different and the court found that the purpose and the intent and the effect of the statute in Virginia was race and discrimination, separation of races and that that went to, in essence, the central meaning of the 14th Amendment. Clearly, that's not the case here.

Justice Cordy

ATTY. BONAUTO: I don't agree with you, Your Honor. What Perez in California and Loving, and the McLaughlin case, which I think is very important here, all addressed were racial classifications. And it's true the court mentioned, in Loving, the issue of white supremacy, but I think if we posited to this Court an example where tomorrow the legislature passes a law very benignly motivated to encourage diversity and requires people to marry outside of their race, race would still be at the center of that statute; and for that reason alone, race would be restricting a person's choice of marital partner and be unconstitutional for that reason.

CORDY: Wasn't Loving really based on right-of-choice and that right not being encumbered or prohibited as a result of race?

ATTY. BONAUTO: Exactly, it was a racial classification at the heart of that case, just as sex is at the heart of how the defendants administer marriage laws here. And if I may explain that for a moment. With respect to, for example, Hillary and Julie Goodridge. Hillary wants to marry Julie Goodridge. But the state is saying Hillary may not marry Julie Goodridge because it wants a man to fill that role. So with respect to marrying Hillary, the state is in fact treating men and women differently. Only a man will be allowed to do that. That's a sex-based classification and that's why the Loving analogy really should work here.

ATTY. BONAUTO: With respect to intent, Your Honor, we've set out in both the First Brief and the Reply Brief, we really do think there's intentional discrimination here for a number of reasons. Number one, with respect to this court's school desegregation cases that we've cited in the Reply Brief in particular, what the court has said is that when it's clear that a group is going to be excluded, when it's clear that the effect of a statute is a particular way, that's satisfying an intent requirement. By saying only people of a different sex may marry, you're obviously excluding love couples of the same sex and a fortiori all gay and lesbian couples as well.

COWIN: Wouldn't that be a more reasonable interpretation to suggest that the legislation neither intended nor didn't intend to exclude or include a certain category of people. It simply, frankly, hadn't occurred to them?

ATTY. BONAUTO: - 1785, that may very well be right, but as recently as 1989 . . .

COWIN: I understand. That's a slightly different case.
Could I just go to - I know we have focused on United States Supreme Court precedence, but I would be interested in your view on Perez, the 1948 first case to cite the miscegenation cases, is that similar or different to what is being requested here?

ATTY. BONAUTO: It's very similar, Your Honor. In that case, again, it was race at the heart of the choice of marital partner and the court there recognized that the right-to-marry belonged to the individual as a state court declaring that, and they also recognized that it was an affront to human dignity to deny people the choice of who they want to marry based on their race. People were not, as the court put it, interchangeable like trains. You can't simply say that a man, any old man should marry Julie Goodridge. It's Hillary Goodridge who wants to marry Julie Goodridge.

MALE JUSTICE: When you talk about this trilogy, which is Loving, Zablocki and Turner, I think . . .

MALE JUSTICE: - is it firmly establishing under the federal Constitution, this right to marry is a fundamental right. But are there any cases, federal, district, circuit, U.S. Supreme Court, or any state cases that say that the federal Constitution extends to the right of someone of the same sex to marry someone of the same sex?

ATTY. BONAUTO: Not to this point that I am aware of, Your Honor.

SOSMAN: Could I point out from that, it seems to me you are framing this as the right to marry the person you want, but could it not also be framed as you are seeking to change the definition of what the institution of marriage is, and all the cases about right to marry have not changed or been dealing with a change in the historical fundamental definition of what the institution is? They have dealt with government attempts to further restrict marriage even beyond the definitions that have long been sort of inherent in the underlying definition. You're trying to change the definition.

Justice Sosman

ATTY. BONAUTO: I would respectfully disagree, Your Honor, or at least in part I would disagree, and I say that because at one point in this country, forty states forbade the marriage of people of different races. It was considered natural and essential for the institution -

SOSMAN: Quite the contrary. It was a relatively recent, restricted innovation. The fact that it was widespread didn't change the fact that it was relatively recent.

ATTY. BONAUTO: Again, Your Honor, I respectfully disagree because one looks to the - to Maryland, to Virginia, to the 13 colonies. Most of those colonies forbade marriage of people of different races.

SOSMAN: All right. Let me follow up. Your brief deals with the argument about polygamous marriages on, as I read it, a purely pragmatic basis, saying, well, that argument hasn't been made, therefore we don't have to worry about its being made as a practical matter. I understand that, but I still want to know what would the difference be? Again, these would be adults, consenting adults saying this is the relationship we want, this is the status we want, there are three of us. If two are in a car crash, the one remaining wants access to the hospital emergency room with family rights, inheritance. It's been all the same things that you are saying. Truly, what we would say to them would be, you are seeking to change the definition, not just who you may have this relationship with, but a change in the definition. How are you different from that? What's your distinction from that?

ATTY. BONAUTO: Well, among other things, Your Honor, I feel like the issue in this case is what is the excuse for carving only gay people off the right to marry, but to answer your question more directly, I think, number one, the legislature has helped to point us in the right direction here because over the years we've dismantled the coverture regime and made marital obligations between the spouses mutual and not gender based. There is nothing women are responsible for that men are not. So taking sex out of the equation, which is what the plaintiffs ask this court to do, is very different from taking numerosity out of the equation. There is nothing that this court or the legislature has done in the last 200 years to do anything to suggest that more than two people may marry. The adultery laws remain on the books. The bigamy laws remain on the books and they enforce the exclusivity of the marital relationship.
Even further, in 1976, when this state ratified the Equal Rights Amendment - the Equal Rights Amendment, I think, also is helpful guidance to us because what it says is to the extent that the Commonwealth is trying to limit legal opportunities based on sex, it's really foreclosed from doing so. And as I explained earlier, that's how - that's at least one of the ways in which the state administers the marriage laws here. I can see that it's close to my time to sum up, so if I may . . .

SOSMAN: Could I ask you just one other question? Could you make an argument that the present practice violates the First Amendment also, the establishment clause, because the traditional concept of marriage is essentially derived from religion and it adheres to traditional religious notions that promote inter-sex marriage only.

ATTY. BONAUTO: I haven't thought it through thoroughly enough to say that I would want to make it, but certainly there is, as you know, an amicus brief that addresses those issues to some degree and also tries to clarify that we're focused on the civil institution.

MALE JUSTICE: If you make it your right, you're buying a ticket to federal Court. [laughter]

ATTY. BONAUTO: Pardon me?

MALE JUSTICE: If you make that argument, you are buying a one-way ticket to Federal Court.

ATTY. BONAUTO: In sum, Your Honors, the plaintiffs are simply asking this court to apply constitutional principles to them that apply to everyone else. This exclusion is not good for these plaintiffs, it is not good for the Commonwealth as a whole and ending it would be good for these plaintiffs and for the Commonwealth as a whole. Thank you very much for your time.

ATTY. YOGMAN: Judith Yogman, Assistant Attorney General. I represent the Commissioner in the Dept. of Public Health.

The question before the Court today is whether the Massachusetts Constitution requires the Commonwealth to permit same-sex couples to marry.

MARSHALL: I understand that that's one way to frame the question, but there are other ways to frame the question. Would you at least concede that?

MARSHALL: And whether the Constitution prohibits the Legislature from restricting marriage to certain categories of people.

ATTY. YOGMAN: That could be another way of framing the question. My point, though, was what is not at issue is that - is whether permitting same-sex couples to marry is good public policy. The plaintiffs and their amici have made strong arguments about public policy reasons why it would be a good idea to extend marriage to same-sex couples . . .

GREANEY: In an ideal world, perhaps, we should be able to get the people of Massachusetts to vote on this. But that is impossible, right, until at least 2006, unless last year's referendum gets resurrected somehow?

ATTY. YOGMAN: Not at all, Your Honor. There are bills pending before the legislature right now that - several bills that would provide for civil union and several that would provide for domestic partnerships.

GREANEY: How long have those bills been pending? Have they been pending . . .

ATTY. YOGMAN: They were just filed in December, but other bills similar on domestic partnership were filed before. I don't believe the Civil Union Bill had been filed before this year.

MARSHALL: Ms. Yogman, I don't wish to quibble with you because it's really not central to this case, but a bill to provide for civil unions is different, is it not, from a bill to provide for marriage among all adults, in [unintelligible] to couples, correct?

MARSHALL: What we're talking about here is civil marriage, correct? In other words, the state can authorize a marriage that no religion is required to accept, correct? The state can order the termination of a marriage that no religion is required to accept, correct?

JUSTICE MARSHALL: So that, in fact, the state can permit two people to marry and no church need recognize that marriage?

ATTY. YOGMAN: Many churches, as the amici, on the Plaintiffs' side demonstrate, many churches do perform same-sex marriages . . .

ATTY. YOGMAN: And many don't.

MARSHALL: - and the fact that the state gives an . . .

MARSHALL: - imprimatur to one kind of relationship is really totally different from what any religion may or may not deem with respect to how many marriages, sequential marriages, among whom, between whom. That is . . .

ATTY. YOGMAN: That's correct. We are not claiming any religious basis to our argument at all.

MARSHALL: Correct. So these are really privileges, rights, responsibilities that the state confers in connection with a particular relationship with the state?

GREANEY: How do you reconcile what to me is a paradox, that the state acknowledges that same sex couples with children, who are permitted, obviously, to adopt children under the Tammy decision constitute a family, but they don't constitute a family for purposes of being married? Are those ideas somewhat at odds?

ATTY. YOGMAN: Not at all, Your Honor. The idea that same-sex couples can adopt on a case-by-case basis is not at all inconsistent with the idea that - for the legislature to - or for the court to say that they're required to permit marriage. Adoption is one thing, marriage has many other responsibilities and benefits associated with it other than child rearing. And . . .

GREANEY: You would agree with me, however, that there is no firm definition of family, that the idea of family, according to our decisions and other thinking that's gone far beyond the notion of two heterosexual people married, having children?

ASST. ATTORNEY GENERAL: That's correct, Your Honor, but there's never been a suggestion that there was a constitutional right to that. To the contrary, the Court said that while foster parents share a lot of the attributes of a family, there is no fundamental right of foster parents to adopt. They have said that while some of the interests associated . . .

MARSHALL: That's an interesting distinction because we haven't said that everybody has a right to adopt . . .

JUSTICE MARSHALL: But we have said that a group of people that hithertofore were not permitted to adopt are permitted to adopt.

ATTY. YOGMAN: But that was by interpreting a statute. The Court didn't suggest that that was constitutionally required and other Courts that have considered it have said . . .

MARSHALL: No, and it is a position that was interpreted by this Court and has not been changed in any respect by the legislature.

ATTY. YOGMAN: That's correct. But adoption, again, is something very different than marriage. There is nothing - and, in fact, the plaintiffs in this case have all the benefits associated with childrearing. They all are the adoptive or natural parents of their children and so the issue of the right to control the upbringing of the children is not an issue in this case because they have all the rights of parents and the children have all the rights of children.

MALE JUSTICE: What would you identify as the top - the most important reasons for the state justification for excluding these kinds of marriages?

ATTY. YOGMAN: The most important justification is that limiting marriage to opposite-sex couples furthers this state's interest in fostering the link between marriage and procreation.

UNIDENTIFIED JUSTICE: How - let me interrupt you for just one moment. How would prohibiting same-sex couples from getting married further that link between marriage and procreation?

ATTY. YOGMAN: Marriage, procreation and childrearing, I said. They are all related and same, the idea of the legislature could conceivably believe, this is what I believe is the strongest argument. The legislature could conceivably believe that encouraging same-sex couples to marry would not be a beneficial thing in terms of childrearing.

SPEAKER: Because they would not be available to marry people of the opposite sex?

ATTY. YOGMAN: No. No, not at all. No. Because the legislature could conceivably believe that an optimal setting for childrearing and procreation is a family where there are one parent of each sex because mothers and fathers, the legislature could believe, and there is literature to support it, that mothers and fathers each make unique contributions to the upbringing of a child. Just as this court said in Blixt, there is a possibility that children would benefit from having a parent of each sex. It's possible that many children do very well with a parent of one sex [i.e., not two parents of the same sex], but nevertheless the court said . . .

MARSHALL: Ms. Yogman, I well understand the argument. When you link marriage, procreation and childrearing and say that the legislature could well believe that optimal setting is with heterosexual two parents - to what extent does recognizing that single-sex couples, as in Tammy, which the legislature has not sought to amend in any way, is not a powerful recognition that childrearing in fact with single-sex couples is optimal for certain children?

ATTY. YOGMAN: For certain children. That's the difference, Your Honor. Adoption is on a case-by-case basis. Every family . . .

MARSHALL: I understand, but if you make the link between marriage, procreation and childrearing, what you are saying is when you go backwards you make the case for childrearing, procreation, but not for marriage and . . .

ATTY. YOGMAN: I'm saying across-the-board and that's the difference between marriage and adoption. Marriage, if it's permitted, would be for any same-sex couple and then . . .

MARSHALL: The State is free to say, for example, after a heterosexual couple has been married for ten years and has produced no children, unless there is evidence that both parents are infertile that they should be divorced so that the other parent - so the parents can be free to marry to try and procreate with another couple?

ATTY. YOGMAN: No, Your Honor. First of all, for the state to draw the line that way would be an impermissible intrusion into the private lives of the people involved.

ATTY. YOGMAN: This Court has recognized certain privacy rights in the Massachusetts constitution, including rights associated with procreation in the abortion context. And the court has said that those rights are fundamental and here for the state to inquire and to draw lines on the basis of whether or not somebody is able to procreate or willing to procreate would not be permissible under the Constitution.

MARSHALL: Ms. Yogman, how about the state believing, firmly supported by good and substantial evidence, that children of a particular race, native Americans or white children or Asian children do better, thrive more with parents of like genetic heritage - a view held widely and respected widely - is there something different about race?

ATTY. YOGMAN: There is something - yes. There is something different about race. First of all, race is a suspect classification and . . .

MARSHALL: That's not under the Massachusetts - that's under the federal Constitution and the Fourteenth Amendment. What about under the Massachusetts Constitution which is considerably older than the Fourteenth amendment?

ATTY. YOGMAN: Well, the Massachusetts Constitution has the Equal Rights Amendment which includes race and has held that race is a suspect classification under the Equal Rights Amendment as well, but that would be very different. First of all, strict scrutiny would apply because of that. Secondly, I doubt whether there would be a rational basis for race discrimination on that basis.

MARSHALL: In other words, it's the initial determination that you've got to have a "suspect" group and then you essentially say it's not rational and if you don't fall into a suspect group, then it is rational. How do we tell?

ATTY. YOGMAN: No, no, no. Those are two separate analyses. In order to have a heightened scrutiny, which is what the plaintiffs are seeking here, there either has to be a suspect class or a fundamental right, and that's why they're arguing for both or either of those.

ATTY. YOGMAN: And so if there is not either of those, then you get to a rational basis and then you'd consider, it's not automatic that there's a rational basis, you have to consider whether there is any conceivable . . .

GREANEY: Let me ask you this about that on the rational basis side, because let's assume that at some point in time the legislature had a rational basis based on the state of the learning and understanding of relationships - at that time. But let's assume that experience and science and other things have moved the level of understanding far beyond that. And now we're asked to decide whether there's a rational basis. Do we look back in time to whether there was a rational basis a hundred years ago?

GREANEY: Or do we look at it today? Whether there is a rational basis today?

CORDY: Or do we review the basis on which the legislature acts as we would review the findings made by a tribunal?

ATTY. YOGMAN: No, Your Honor. The facts were - the rational bases are not adjudicated facts. They are the kind of facts that the court can use its own common experience, as this court said in Blixt, to ascertain whether there is any conceivable rational basis. It doesn't have to be one that we proffered in our brief, it doesn't have to be one . . .

GREANEY: While we're talking about that, where do we go to find this rational basis? You said a moment ago that the basis, the key is the word I wrote down, "procreation." A lot of people would disagree with that. They would say the contemporary view of marriage is not procreation. That's certainly an important attribute of that. It's a partnership from which a lot of benefits flow, including the right to have, adopt, bear children or not have children. Economic opportunities, a whole truss, so forth, a whole bunch of other things. So my question is where do we go to find this - whatever this key is? This rational basis?

ATTY. YOGMAN: Well, where the Court goes to find the rational basis is anywhere that the Court might conceive of it . . .

MARSHALL: Well, the rational basis test is no different in this context than it is in any other.

ATTY. YOGMAN: That's right.

MARSHALL: That's the answer.

ATTY. YOGMAN: It's any conceivable rational basis, but as far as the concept of marriage . . .

MALE JUSTICE: But how does it work? How does that process work here? There is a presumption of the validity of the statute and the burden is on the plaintiffs to show that the statute is not valid. The burden is on the plaintiffs to show that there is no rational basis.

MALE JUSTICE: But whose common knowledge? Is it what people read in magazines or is it what the legislature could have done?

MARSHALL: Let's go back to the original marriage acts where I think it would be a stretch to say it was for procreation. One way to look at it is: marriage is always a property relationship and if there were offspring, certain properties follow as a consequence, certain rights, certain obligations towards the offspring. If, in fact, there were offspring outside marriage, outside marriage, they were dealt differently. What the Commonwealth seems to be saying, and it's not unreasonable, is that you have cut off the first piece of the history and picked up just at the procreation point.

ATTY. YOGMAN: No, Your Honor. Although - and Justice Greaney raised a similar point. Although the concept of marriage has changed, it hasn't changed to be purely an economic partnership. It's still based fundamentally . . .

MARSHALL: No, no. It's never an economic - I'm not suggesting it's only an economic partnership, but one of the original bases was to recognize that two people in a certain kind of union brought with them certain economic benefits to that and if there were offspring as a consequence of that union that the benefits flowed in a particular way.

ATTY. YOGMAN: I beg to differ. I think it was the other way around, that the reason that economic benefits are conferred on married couples is to encourage this setting for procreation and childrearing. It's not the other way around.

ATTY. YOGMAN: Well, the benefits that flow from marriage that the state has attached to marriage are because the state wants to encourage this model of marriage where there are one parent of each sex and that is - the legislature might conceivably believe still today that that is an optimal setting for procreation and childrearing.

GREANEY: May I ask you one other question? Assuming we determine that it's the rational basis test that we need to apply, and the plaintiffs have the burden, correct, of showing that there is no rational basis to support the classification, is that correct?

ATTY. YOGMAN: Your Honor, the coercion that this court has said that is required in order to be a due process violation is not just not permitting them to marry. For example, in the Curtis case the court said that due process has never been - has been a shield against government action, not a sword to require the government to act and what the plaintiffs are seeking is very different than in Loving. In Loving, what happened was the people were arrested in their bedroom. They were not permitted to cohabitate.

MARSHALL: That is certainly part of what happened, but if one simply went, as in [unintelligible, Perez?], as a cross-race couple, one white, one black, and went as happened- I believe in this case, went to the local registry to ask for a marriage license, the couple in [unintelligible, Perez?] and many of the other couples that were referenced in Loving simply asked to marry. In other words, the Court was not acting because they had been only victimized, because they had been chased down for living together.

ATTY. YOGMAN: Well, no. That - actually, the case of Loving, the people got married in another state. They came back with their marriage . . .

MARSHALL: No, no. I understand that. That's in the Loving case, but there are lots of other cases and the breadth of the language in Loving isn't limited to only when the state comes in and forcibly makes its way . . .

ATTY. YOGMAN: Right. Loving was primarily a race - an equal protection case. I think Justice Cowin's question goes to the due process claim. There can't be a deprivation of due process unless there is coercion involved. This court has clearly said that, and these circumstances would not rise to the level of coercion under the court's previous precedents.

GREANEY: But picking up on the Chief Justice's question, if a mixed racial couple had gone to the registry or the clerk's office in the town of - whatever town - and had applied for a marriage license and the clerk politely told them you - we can't do that, wouldn't Loving have been cited on the same basis?

ATTY. YOGMAN: Loving was an equal protection case and the issue - the point that I was responding to was a due process point. So, I - on the equal protection, though, I just want to emphasize that this is not sex discrimination as the equal rights amendment was intended to prohibit . . .

MARSHALL: Ms. Yogman, I know that you want to make that argument, but I also notice that your light is flashing. [laughter] There is a few minutes that you would sum up, that would be fine, but you're about to be . . .

ATTY. YOGMAN: All right. Well, I would just refer to my brief then as to the history of the equal rights amendment and what it was intended to prohibit and what it was intended to require and it was intended to prohibit burdening one sex over another, especially women. It was an outgrowth of the women's rights movement and it was not intended - specifically, not understood, to require same-sex marriage.
If I may, I'd just like to take a moment to talk about remedy.

ATTY. YOGMAN: May I have 30 seconds to talk about remedy? Because that's a question that . . .

Sidebar:
John Greaney Told Mary Bonauto that She Will Win
John Greaney told Mary Bonauto, before he even heard from Judith Yogman, that she will win this case which is now before the Supreme Judicial Court. He told her, "…if you win, and I'm certain you would…"

There is some question why he said "would" instead of "will" and whether it is this case which she will "win," but there is no question that he was greatly encouraging her and he was undoubtedly telling her she will win this lawsuit.

You decide for yourself by reading the small segment that follows. You will also see that Greaney agreed that the voters would approve the Protection of Marriage Amendment if he, Greaney, is not successful in killing it first.

JUSTICE GREANEY: Politically, if we were looking at a constitutional amendment [i.e., the Protection of Marriage Amendment], we are looking at what, at the earliest 2006 [that it could be approved]?

JUSTICE GREANEY: Because the one that was making its way through the legislature last year is now more or less defunct? [He's not certain if it is defunct, but as Single Justice he dismissed it without comment on Feb. 28, 2003. That has been appealed and the full Court will decide, probably this May.]

ATTY. BONAUTO: Correct. And I suspect, Your Honor, that if this court were to grant the relief of plaintiffs' request here, which is the issuance of marriage licenses, even in a worst-case scenario [which is that the Protection of Marriage Amendment were passed], picking up on your line of thinking, Your Honor. Even in a worst-case scenario, what we would have is three full years of married couples in this Commonwealth. [Before the Amendment would define marriage as one man and one woman] * * *

So even in a worst-case scenario, Your Honor, we're talking about three years in this Commonwealth of married couples [if you approve this lawsuit and stop the citizens from voting for at least three years], and I think by the end
of those three years what people would see very easily is

Atty. Bonauto

that nothing has been taken away from them, nothing has been taken away from their mar-riages. But these other families who are now allowed to marry have been strengthened and that's good for the community as a whole.

Take Vermont, for example, the opponents in Vermont argued strenuously that the civil union system was the exact same thing as marriage, it was masquerading as marriage. Certainly, at just two years, the situation there has completely calmed down and civil unions are not an issue anymore. [Very few people would agree with that statement, but Greaney did.]

JUSTICE GREANEY: And, contrary to the argument of the Attorney Generals from the other states, the Vermont situation didn't set off a firestorm throughout the rest of the country.

JUSTICE GREANEY: So presumably, if you win, and I'm certain you would, this would not either.

It's clear that Marshall and Greaney are the attack persons on the Court as they attempt to separate children from the traditional family. The ultimate plan of those feminists is to place them under primary control of the State as urged by extreme feminists, mostly lesbians such as found in the discredited NOW organization.

What did the other Justices reveal as they tried to talk around Marshall?

Marshall and Greaney kept the embattled Yogman busy disputing their arguments for 82% of the time that was allotted to her. The unidentified Justices nibbled at 14% of her time, while Cowin and Cordy each got 2%.

Cordy - This Justice encouraged Atty. Bonauto by telling her that she shouldn't be discouraged by a U.S. Supreme Court case which struck down a Virginia law which banned marriage between races and which some believe does not apply to gay marriage. He assured her that that case was not just about race. "[It] was really based on right-of-choice," he said, to which Bonauto heartily and gratefully agreed.

Ireland - He asked only one question, at the very beginning, when he questioned Atty. Bonauto as to why the Court should be deciding this important issue and not the Legislature.
Cowin - She asked three questions and appeared to be undecided.

Sosman - Although a reputed lesbian, she asked some penetrating questions of Atty. Bonauto. In her first question, she wondered whether they weren't trying to change the very definition of marriage. Her second was how they could ignore the polygamous groups of three or more who want to marry. Her third was that didn't the present arrangement violate the First Amendment because the "traditional concept of marriage is essentially derived from religion."

Spina - He did not ask any questions unless he was one of the unidentified speakers. He was the Single Justice who quickly dismissed the lawsuit, without comment, from the Protection of Marriage people in October 2002.