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What Has the SJC Said
About Homosexuality? May 2001 Sidebars: These are the two seminal
decisions from the Supreme Judicial Court about
homosexuality which indicate they would welcome a
chance to impose their views on the public. Lesbian
Allowed to Demand Visitation - 1999 -- The SJC decided
that a lesbian could demand visitation rights
with a child of her former partner. A dissenter, Judge Fried,
stated that courts are not intended to set broad
social policy because they do not have the
ability to have hearings and to hear from many
different groups as the legislature does. It allowed the lesbian to
demand visitation rights to see a child of her
former partner who had had the child by
artificial insemination, even though the woman
was not related by blood or marriage. Fried wrote
the following, to which Judge Lynch joined. “At
the instance of a plaintiff related neither by blood nor marriage
to either the minor child or the child’s biological mother,
a probate judge has ordered the mother to allow the plaintiff rather
extensive visitation rights with the child. There has been no allegation,
much less any finding, that the mother has failed in any recognized
legal duty to the child. “The
probate judge’s order in this case was wholly without warrant
in statute, precedent, or any known legal principle, and yet the
majority of the court has upheld it. As such, the opinion the court
delivers today is a remarkable example of judicial lawmaking. “[I]t
has never been supposed
that a probate judge may simply drop into a family relation without
any particular legal warrant and decree that a parent must follow
a particular course in the upbringing of the child in the absence
of an allegation of unfitness, abuse, or deprivation of necessities. “The
subject of same-sex is difficult, controversial, and important.
The court’s decision is a clear step in granting legal force
to such unions. But if that is what the court intends, it should
say so directly. In my view, it is precisely the sort of question
that deserves the attention of the Legislature. We should not back
into it by indirection, as the court does here. “A
bold statement granting judicial recognition to same-sex unions
would at least place quite distinct limits, analogous to those now
familiar in the law, on the otherwise utterly amorphous authority
the court seems to bestow today. Thus the danger that the court’s
decision might be used in as yet unforeseen circumstances to deprive
parents of their constitutionally protected relationships with their
children would be diminished. This is not to say that limiting the
court’s decision to same-sex unions would eliminate all ambiguity.
Many vexing questions would remain. What exactly is to count as
such a marriage-like commitment? When does a coparenting agreement
constitute the equivalent of such a commitment? Is either sufficient
to create the rights the court seems to acknowledge today, or are
both necessary? How is such a union to be terminated and what are
the other incidents -- support and alimony, for instance -- that
may arise when it is terminated? Only the Legislature is in a position
to deal systematically and comprehensively with this important subject.
Our imprecise, indirect, and piecemeal entry into this field can
only cause confusion. “Of
course, if there is some constitutional basis for the recognition
of same-sex marriage, the matter is no longer entirely at the Legislature’s
discretion. By its emphasis on the marriage-like arrangements and
agreements between the plaintiff and the mother, which are hardly
relevant to the purported basis of the court’s decision --
the best interests of the child -- the court appears to take a step
in that direction. “And
how else can the court find enough to outweigh what the court admits
is a long-standing constitutional right -- the Ôfundamental liberty
interest’ of parents in raising their children without interference
by the State?” E.N.O. v. L.M.M.,
June 29, 1999. Lesbian
Allowed to Adopt Despite Statute -
1993 - A lesbian was allowed to adopt her partner’s child without
affecting the legal rights of the mother, even though there was
no provision in the law for doing so. Three conservative judges,
Lynch, O’Connor and Nolan, dissented, but even they did not
disagree with the outcome. They objected only to the procedure that
was followed in making the historic decision. Justice Lynch, who
was joined by Justice O’Connor, wrote specifically that he
had no quarrel with the homosexual lifestyle. He said: “At
the outset I wish to make clear that my views are not motivated
by any disapproval of the two petitioners here or their lifestyle.
The judge has found that the petitioners have provided the child
with a healthy, happy, stable family unit. The evidence supports
the judge’s findings. Nor is my disagreement with the court
related to the sexual orientation of the petitioners. I am firmly
of the view that a litigant’s expression of human sexuality
ought not determine the outcome of litigation as long as it involves
consenting adults and is not harmful to others. However, the court’s
decision, which is inconsistent with the statutory language, cannot
be justified by a desire to achieve what is in the child’s
best interests. Indeed, those interests can be accommodated without
doing violence to the statute by accepting the alternative to joint
adoption suggested by the Probate Court judge; that is, permitting
Helen to adopt Tammy while allowing Susan to retain all her parental
rights and obligations. This is essentially what the court accomplishes
in part 2 of its opinion. By this simple expedient, all of the court’s
concerns about protecting filial ties and avoiding legal limits
are put to rest without invading the prerogatives of the Legislature
and giving legal status to a relationship by judicial fiat that
our elected representatives and the general public have, as yet,
failed to endorse.” Justice
Nolan wrote that although he did not agree with some of the language
in Justice Lynch’s opinion about the homosexual lifestyle,
he also agreed with the result of the majority. “I
write separately in dissent only because I do not agree with the
sentiments expressed by my brother Lynch in the first few sentences
of his dissent. His dissent is otherwise a faultless analysis of
our existing jurisprudence to which I subscribe.” Adoption of Tammy,
September 10, 1993. Sidebar: May 2001 Opponents
of the Protection of Marriage Bill (H 3375), are refusing to meet
with supporters of the legislation. Despite repeated requests, Rep.
Liz Malia (D- Jamaica Plain) and Rep. Paul Demakis (D-Brookline)
have refused to meet and discuss the bill, which defines marriage
as the “union between one man and one woman.” Malia
and Demakis are leading sponsors of the Domestic Partnership Bill
(H 2613) which allows unmarried state employees access to the same
health insurance benefits as married state employees. “I’m
very disturbed that Representatives Malia and Demakis refuse to
discuss their opposition to the Protection of Marriage Bill or their
support for Domestic Partnership benefits. Over 70% of the people
in Massachusetts believe that marriage plays an important role in
society. It’s very unfortunate that some legislators won’t
even meet to discuss this important legislation,” said Bryan
Rudnick, Executive Director of the Massachusetts Citizens Alliance. Rep.
Demakis canceled a scheduled meeting with Rudnick. Upon a request
to reschedule the meeting, Rudnick was informed by an aide that
Rep. Demakis would not meet with the Massachusetts Citizens Alliance.
Rep.
Malia also refused to meet with Rudnick. According to Rudnick, Representative
Malia in a phone call accused him of being a “hate-monger”
for his support of the Protection of Marriage Bill. “It’s
unfortunate that Representative Malia doesn’t see the value
of marriage,” said Rudnick, “I was hoping to meet with
the Representatives as I have with several others, in hope of finding
common ground, but they are obviously close-minded on these issues.” The
Protection of Marriage Bill (H 3375), was filed by a bi-partisan
coalition of legislators, including House Ways and Means Chairman
John Rogers (D- Norwood) and House Minority Leader Francis Marini
(R-Hanson), among others.
Sidebar: May 2001 The following Press
Release was issued when the suit was filed by the
homosexual law firm known as GLAD. GLAD
Files Suit in Massachusetts Seeking Civil
Marriage for Lesbian and Gay Couples Seven
gay and lesbian couples from five counties throughout the Commonwealth,
who were recently denied marriage licenses at their city or town
halls, today filed suit in Suffolk Superior Court seeking the right
to marry in Massachusetts. The plaintiff couples are represented
by New England’s Gay & Lesbian Advocates & Defenders
(GLAD). The defendant is the Department of Public Health (DPH) which
has the ultimate responsibility for enforcing all state laws governing
marriage and its licensing in municipalities. “This
case presents an historic opportunity for Massachusetts,” said
Mary Bonauto, GLAD’s Civil Rights Director and co-counsel in
the landmark Vermont marriage case. “Marriage is a legal relationship
and a social status understood everywhere. Our Commonwealth now
has the chance to recognize that same-sex couples -- whose relationships
are as loving and as committed as those of heterosexual couples
-- have an equal right to civil marriage.” The
seven Massachusetts couples have been in committed relationships
between five and 30 years. Four of the couples have young children;
others have faced health crises. All are concerned about providing
the security for each other and their families which automatically
comes with marriage and is not available to them. Many of the couples
want marriage to make a statement to their families and others about
the commitment of their relationship. “Each
of the couples in this case are part of the community,” said
Bonauto. “They share a great deal in common with other families
in Massachusetts. Some coach Little League. Others volunteer at
their churches or children’s schools. Some participate in civic
organizations. Like any married couple, they have made a commitment
to each other for life. Yet, none of them can fully protect themselves,
their relationship, or their children without marriage.” The
plaintiff couples in the case are: Hillary and Julie Goodridge of
Boston, who are the parents of a five-year-old daughter; Michael
Horgan and Ed Balmelli of Boston, who are both from large families
in central Massachusetts; Maureen Brodoff and Ellen Wade of Newton
who have a 12-year-old daughter; Gloria Bailey and Linda Davies
of Orleans who have been a couple for 30 years; Richard Linnell
and Gary Chalmers of Northbridge who are the parents of an eight-year-old
daughter; Heidi Norton and Gina Smith of Northampton who have two
sons, four-years-old and one-year; and Robert Compton and David
Wilson of Boston, who are each parents of grown children, and David
is the grandfather of four. The
law assumes the married couple is bonded emotionally and financially,
and provides a framework of protections and obligations for married
couples and their children in their interactions with each other,
with government agencies and programs, and with other people and
institutions. Some laws affect people on a day-to-day basis; others
only come into play in times of hardship, illness or death. Among The
Protections Provided Through Civil Marriage Are
The Following: - The law protects the
confidential and intimate nature of the married
relationship, including visitation rights in a
hospital, an expectation of privacy in the
relationship, and other privileges. - The law respects the
family as an economic unit, offering a structure
for obligations of support during and after a
relationship; sharing of pensions even after the
earner is deceased; access to social security;
and numerous protections after death for a
surviving spouse. - The law acknowledges
the interdependence of family members in times of
adversity, including family and medial leave
rights, workers’ compensation dependency
benefits, and benefits for children when a parent
is unemployed. - The law helps create
and maintain relationships between parents and
children, including support obligations, child
custody and visitation, step-parent adoption and
assisted reproductive technology. - The law structures
taxation provisions to meet critical family needs
such as allowing spouses to transfer property in
life and at death without tax consequences,
filing joint income taxes, using marital tax
rates and pooling tax exemptions, and receiving
an unlimited marital deduction when a spouse
dies. - The law anticipates
issues of insurance relating to family
members’ health, illness and death,
including the purchase of joint insurance
policies. - The law recognizes that
injury to one family member injures all family
members by providing claims for wrongful death,
loss of companionship of spouse or children, and
intentional infliction of emotional distress. -
The law protects family members at times of illness and death, including
hospital visitation privileges, priority in medical decision-making
for an incapacitated spouse, and matters relating to burial. |
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