On November 18th, 2003, we all read for the first time these words:
Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth 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. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
The came from Margaret Marshall, Chief Justice of the Massachusetts Supreme Judicial Court in the case of Goodridge v. Dept. of Public Health.
Massachusetts was not the first state to find its marriage laws violated its state constitution -- Hawaii had been there in 1993, and Vermont in 1999.
In Hawaii, we witnessed for the first time how serious the backlash against gay marriage successes would be. After a rabid campaign, fueled by millions in out-of-state donations, Hawaii became the first state to amend its constitution to diminish its guarantee of equal protection. The backlash also led to the passage of the federal Defense of Marriage Act by an overwhelming margin, a law signed by President Bill Clinton.
In Vermont, the Court's invitation to the legislature to fix the constitutional problem however they saw fit led to the creation of a new creature in American law, the separate-and-not-quite-equal status of civil unions.
But in 2003, it seemed that things might come out a different way. First, the Court was smart enough to order a specific remedy, looking to our neighbors to the north for guidance:
In holding that the limitation of civil marriage to opposite-sex couples violated the [Canadian] Charter [of Rights and Freedoms], the Court of Appeal [for Ontario] refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. . ..
We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources.
Second, with Massachusetts' solidly liberal legislature, and onerous process for amending its state constitution, the decision stood a great chance of surviving the backlash. And survive it has.
Despite repeated attempts to overturn the decision, to amend the state constitution, and to limit the reach of the law, marriage equality remains a reality in Massachusetts. Since the decision went into effect 6 months after its release -- on May 17th, 2004, the 50th anniversary of Brown v. Board of Education -- over 11,000 couples have been married here. As many have noted, the sky has not fallen, heterosexual marriage remains as strong as ever, and in fact, Massachusetts boasts one of the lowest divorce rates in the country.
So today, there is much to celebrate, even as we continue to mourn and organize over the recent losses in California and elsewhere. I think it's wise to remember that 58 years elapsed between Plessy v. Ferguson's endorsement of "separate but equal" and the reversal of that policy in Brown. For many of those years, the NAACP Legal Defense Fund litigated case after case to build up to the ultimate win. It was a long, expensive haul, and this will be too. Today, we're all grateful to Charles Hamilton Houston and Thurgood Marshall for their amazing legal work.
Today is a good day to show our gratitude to the lawyers who continue to fight for marriage equality. Let Gay and Lesbian Advocates and Defenders, the National Center for Lesbian Rights, Lambda Legal, and the ACLU's LGBT Project know how much you appreciate their vital work. Without these organizations, and their smart, determined lawyers, we'd have nothing to celebrate at all today.
Thanks for reading. Happy anniversary, gay marriage! (And now, it's time to go wake up my lawful wife and our kids.)