SJC's Colloquy with Attorney Bonauto

By Geraldine Hawkins
March 14, 2003

At one point during the proceedings before the SJC, Justice John M. Greaney said that "in an ideal world" the people of Massachusetts would be allowed to vote on the issue, but that he saw no chance of that until 2006, unless "the current referendum is resurrected."

"The plaintiffs stand before this court today seeking nothing more and nothing less than the respect under our laws and Constitution as all other people enjoy," Bonauto began her argument before the bench. "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."

"Let me ask you a question," interrupted Justice Roderick L. Ireland. "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?"

"I think it's an issue this court should decide because it's the institutional obligation of this court to decide Constitutional issues," Bonauto replied. "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 Judith Cowin asked Bonauto to state the reasons why Massachusetts should do something that no other state has done.

"Because it is the right thing to do," said Bonauto, adding that "the exclusion of the plaintiffs discriminates on the invidious basis of sex and sexual orientation."

Bonauto said that the word "marriage" itself is of the utmost importance to the plaintiffs, rather than civil unions such as are recognized in Vermont.

"The Vermont approach is not the best approach for this court to take and 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 the civil institution of marriage."

Bonauto then made the comparison of laws against same-sex marriage with laws against interracial marriage.

"Certainly, with respect to miscegenation, Massachusetts, Virginia and other colonies, unfortunately, had maintained such discriminatory laws on their books. 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."

Bonauto compares "sex-based classifications" to "race-based classifications."

"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 may be allowed to do that. That's a sex-based classification. . 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 . 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."

Justice Martha Sosman asked whether GLAD is seeking to change the definition of marriage.

"It seems to me you are phrasing 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 the 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 inherent in the underlying definition. You're trying to change the definition."

To which Bonauto responded: "Among other things, Your Honor, I feel like this issue in this case is what is the excuse for carving only gay people off the right to marry?"

Sosman asked Bonauto if she could make the 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 intersex marriage only?"

"We have not made that argument ." Bonauto began to answer.

"But I'm saying could you, could you make that argument as well?"

"I haven't thought it through thoroughly enough to say that I would want to make it," Bonauto said.

Assistant Attorney General Judith Yogman, representing the Commissioner in the Department of Public Health, argued that to permit same-sex couples to marry is not good public policy, largely because it is unnecessary legislation.

"There are bills pending before the legislature now that would provide for civil unions and several that would provide for domestic partnerships," she said. "We are not claiming any religious basis to our argument at all."

Yogman said: "Limiting marriage to opposite-sex couples furthers this state's interest in fostering the link between marriage and procreation. . The legislature could conceivably believe that encouraging same-sex couples to marry would not be a beneficial thing in terms of child-rearing."

Yogman continued, "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, and there is literature to support it, mothers and fathers make unique contributions to the upbringing of a child."

Chief Justice Margaret H. Marshall seemed to have difficulty understanding the "marriage equals procreation" argument.

"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 are infertile that they should be divorced so that they can be free to marry to try and procreate with another couple?"

"No," replied Yogman. "For the State to draw the line that way would be an impermissible intrusion into the private lives of the people involved."