Hillary
GOODRIDGE & others vs. DEPARTMENT OF PUBLIC HEALTH &
another.
SJC-08860
Supreme Judicial Court of
Massachusetts
November
18, 2003.
Present:
Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
MARSHALL, C.J.
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.
We are mindful that our decision marks a change in the history of our
marriage law. Many people hold deep-seated religious, moral, and
ethical convictions that marriage should be limited to the union of one
man and one woman, and that homosexual conduct is immoral. Many hold
equally strong religious, moral, and ethical convictions that same-sex
couples are entitled to be married, and that homosexual persons should
be treated no differently than their heterosexual neighbors. Neither
view answers the question before us. Our concern is with the
Massachusetts Constitution as a charter of governance for every person
properly within its reach. "Our obligation is to define the liberty of
all, not to mandate our own moral code." Lawrence v. Texas
(2003) (Lawrence ).
Whether the Commonwealth may use its formidable regulatory authority to
bar same-sex couples from civil marriage is a question not previously
addressed by a Massachusetts appellate court. It is a question the
United States Supreme Court left open as a matter of Federal law in Lawrence,
where it was not an issue. There, the Court affirmed that the
core concept of common human dignity protected by the Fourteenth
Amendment to the United States Constitution precludes government
intrusion into the deeply personal realms of consensual adult
expressions of intimacy and one's choice of an intimate partner. The
Court also reaffirmed the central role that decisions whether to marry
or have children bear in shaping one's identity. The
Massachusetts Constitution is, if anything, more protective of
individual liberty and equality than the Federal Constitution; it may
demand broader protection for fundamental rights; and it is less
tolerant of government intrusion into the protected spheres of private
life.
Barred access to the protections, benefits, and obligations of civil
marriage, 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 is incompatible with the constitutional principles of respect
for individual autonomy and equality under law.
I
The plaintiffs are fourteen individuals from five Massachusetts
counties.... The plaintiffs include business executives, lawyers, an
investment banker, educators, therapists, and a computer engineer. Many
are active in church, community, and school groups. They have employed
such legal means as are available to them--for example, joint adoption,
powers of attorney, and joint ownership of real property--to secure
aspects of their relationships. Each plaintiff attests a desire to
marry his or her partner in order to affirm publicly their commitment
to each other and to secure the legal protections and benefits afforded
to married couples and their children.
The Department of Public Health (department) is charged by statute with
safeguarding public health. Among its responsibilities, the department
oversees the registry of vital records and statistics (registry), which
"enforce[s] all laws" relative to the issuance of marriage licenses and
the keeping of marriage records, and which promulgates policies and
procedures for the issuance of marriage licenses by city and town
clerks and registers.
In March and April, 2001, each of the plaintiff couples attempted to
obtain a marriage license from a city or town clerk's office. They
completed notices of intention to marry on forms provided by the
registry, and presented these forms to a Massachusetts town or city
clerk, together with the required health forms and marriage license
fees. In each case, the clerk either refused to accept the notice of
intention to marry or denied a marriage license to the couple on the
ground that Massachusetts does not recognize same- sex marriage.
Because obtaining a marriage license is a necessary prerequisite to
civil marriage in Massachusetts, denying marriage licenses to the
plaintiffs was tantamount to denying them access to civil marriage
itself, with its appurtenant social and legal protections, benefits,
and obligations.
On April 11, 2001, the plaintiffs filed suit in the Superior Court
against the department and the commissioner seeking a judgment that
"the exclusion of the [p]laintiff couples and other qualified same-sex
couples from access to marriage licenses, and the legal and social
status of civil marriage, as well as the protections, benefits and
obligations of marriage, violates Massachusetts law." The
plaintiffs alleged violation of the laws of the Commonwealth, including
but not limited to their rights under arts. 1, 6, 7, 10, 12, and 16,
and Part II, c. 1, § 1, art. 4, of the Massachusetts
Constitution....
III
A
The larger question is whether, as the department claims, government
action that bars same-sex couples from civil marriage constitutes a
legitimate exercise of the State's authority to regulate conduct, or
whether, as the plaintiffs claim, this categorical marriage exclusion
violates the Massachusetts Constitution. We have recognized the
long-standing statutory understanding, derived from the common law,
that "marriage" means the lawful union of a woman and a man. But that
history cannot and does not foreclose the constitutional question.
The plaintiffs' claim that the marriage restriction violates the
Massachusetts Constitution can be analyzed in two ways. Does it offend
the Constitution's guarantees of equality before the law? Or do the
liberty and due process provisions of the Massachusetts Constitution
secure the plaintiffs' right to marry their chosen partner? In matters
implicating marriage, family life, and the upbringing of children, the
two constitutional concepts frequently overlap, as they do here. Much
of what we say concerning one standard applies to the other.
We begin by considering the nature of civil marriage itself. Simply
put, the government creates civil marriage. In Massachusetts, civil
marriage is, and since pre-Colonial days has been, precisely what its
name implies: a wholly secular institution. No religious ceremony has
ever been required to validate a Massachusetts marriage....
Without question, civil marriage enhances the "welfare of the
community." It is a "social institution of the highest importance."
Civil marriage anchors an ordered society by encouraging stable
relationships over transient ones. It is central to the way the
Commonwealth identifies individuals, provides for the orderly
distribution of property, ensures that children and adults are cared
for and supported whenever possible from private rather than public
funds, and tracks important epidemiological and demographic data.
Marriage also bestows enormous private and social advantages on those
who choose to marry. Civil marriage is at once a deeply personal
commitment to another human being and a highly public celebration of
the ideals of mutuality, companionship, intimacy, fidelity, and family.
"It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects." Because it fulfils yearnings for
security, safe haven, and connection that express our common humanity,
civil marriage is an esteemed institution, and the decision whether and
whom to marry is among life's momentous acts of self-definition.
Tangible as well as intangible benefits flow from marriage. The
marriage license grants valuable property rights to those who meet the
entry requirements, and who agree to what might otherwise be a
burdensome degree of government regulation of their activities. The
Legislature has conferred on "each party [in a civil marriage]
substantial rights concerning the assets of the other which unmarried
cohabitants do not have."
The benefits accessible only by way of a marriage license are enormous,
touching nearly every aspect of life and death. The department states
that "hundreds of statutes" are related to marriage and to marital
benefits. With no attempt to be comprehensive, we note that some of the
statutory benefits conferred by the Legislature on those who enter into
civil marriage include, as to property: joint Massachusetts income tax
filing; tenancy by the entirety (a form of ownership that provides
certain protections against creditors and allows for the automatic
descent of property to the surviving spouse without probate); extension
of the benefit of the homestead protection (securing up to $300,000 in
equity from creditors) to one's spouse and children; automatic rights
to inherit the property of a deceased spouse who does not leave a will;
entitlement to wages owed to a deceased employee; the right to share
the medical policy of one's spouse; thirty-nine week continuation of
health coverage for the spouse of a person who is laid off or dies;....
and the right to bring claims for wrongful death and loss of
consortium, and for funeral and burial expenses and punitive damages
resulting from tort actions.....
It is undoubtedly for these concrete reasons, as well as for its
intimately personal significance, that civil marriage has long been
termed a "civil right." The United States Supreme Court has described
the right to marry as "of fundamental importance for all individuals"
and as "part of the fundamental 'right of privacy' implicit in the
Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail
(1978). See Loving v. Virginia ("The freedom to marry has long
been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men").
Without the right to marry--or more properly, the right to choose to
marry--one is excluded from the full range of human experience and
denied full protection of the laws for one's "avowed commitment to an
intimate and lasting human relationship..."
Unquestionably, the regulatory power of the Commonwealth over civil
marriage is broad, as is the Commonwealth's discretion to award public
benefits. Individuals who have the choice to marry each other and
nevertheless choose not to may properly be denied the legal benefits of
marriage. But that same logic cannot hold for a qualified individual
who would marry if she or he only could.
B
For decades, indeed centuries, in much of this country (including
Massachusetts) no lawful marriage was possible between white and black
Americans. That long history availed not when the United States Supreme
Court also held that a statutory bar to interracial marriage violated
the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1
(1967).... In this case, as in Loving, a statute deprives
individuals of access to an institution of fundamental legal, personal,
and social significance--the institution of marriage--because of a
single trait: skin color in Loving, sexual
orientation here. As it did in Loving, history must yield to a
more fully developed understanding of the invidious quality of the
discrimination.
The Massachusetts Constitution protects matters of personal liberty
against government incursion as zealously, and often more so, than does
the Federal Constitution, even where both Constitutions employ
essentially the same language. That the Massachusetts Constitution is
in some instances more protective of individual liberty interests than
is the Federal Constitution is not surprising. Fundamental to the vigor
of our Federal system of government is that "state courts are
absolutely free to interpret state constitutional provisions to accord
greater protection to individual rights than do similar provisions of
the United States Constitution...."
The Massachusetts Constitution requires, at a minimum, that the
exercise of the State's regulatory authority not be "arbitrary or
capricious." Under both the equality and liberty guarantees,
regulatory authority must, at very least, serve "a legitimate purpose
in a rational way"; a statute must "bear a reasonable relation to a
permissible legislative objective." Any law failing to
satisfy the basic standards of rationality is void.
The plaintiffs challenge the marriage statute on both equal protection
and due process grounds. With respect to each such claim, we must first
determine the appropriate standard of review. Where a statute
implicates a fundamental right or uses a suspect classification, we
employ "strict judicial scrutiny." For all other statutes, we employ
the " 'rational basis' test." For due process claims,
rational basis analysis requires that statutes "bear[ ] a real and
substantial relation to the public health, safety, morals, or some
other phase of the general welfare." For equal protection challenges,
the rational basis test requires that "an impartial lawmaker could
logically believe that the classification would serve a legitimate
public purpose that transcends the harm to the members of the
disadvantaged class."
The department argues that no fundamental right or "suspect" class is
at issue here, and rational basis is the appropriate standard of
review. For the reasons we explain below, we conclude that the marriage
ban does not meet the rational basis test for either due process or
equal protection. Because the statute does not survive rational basis
review, we do not consider the plaintiffs' arguments that this case
merits strict judicial scrutiny.
The department posits three legislative rationales for prohibiting
same-sex couples from marrying: (1) providing a "favorable setting for
procreation"; (2) ensuring the optimal setting for child rearing, which
the department defines as "a two-parent family with one parent of each
sex"; and (3) preserving scarce State and private financial resources.
We consider each in turn.
The judge in the Superior Court endorsed the first rationale, holding
that "the state's interest in regulating marriage is based on the
traditional concept that marriage's primary purpose is procreation."
This is incorrect. Our laws of civil marriage do not privilege
procreative heterosexual intercourse between married people above every
other form of adult intimacy and every other means of creating a
family. General Laws c. 207 contains no requirement that the applicants
for a marriage license attest to their ability or intention to conceive
children by coitus. Fertility is not a condition of marriage, nor is it
grounds for divorce. People who have never consummated their marriage,
and never plan to, may be and stay married. People who cannot stir from
their deathbed may marry. While it is certainly true that many, perhaps
most, married couples have children together (assisted or unassisted),
it is the exclusive and permanent commitment of the marriage partners
to one another, not the begetting of children, that is the sine qua non
of civil marriage.
Moreover, the Commonwealth affirmatively facilitates bringing children
into a family regardless of whether the intended parent is married or
unmarried, whether the child is adopted or born into a family, whether
assistive technology was used to conceive the child, and whether the
parent or her partner is heterosexual, homosexual, or bisexual. The
attempt to isolate procreation as "the source of a fundamental right to
marry" overlooks the integrated way in which courts have examined the
complex and overlapping realms of personal autonomy, marriage, family
life, and child rearing. Our jurisprudence recognizes that, in these
nuanced and fundamentally private areas of life, such a narrow focus is
inappropriate.....
The department's first stated rationale, equating marriage with
unassisted heterosexual procreation, shades imperceptibly into its
second: that confining marriage to opposite-sex couples ensures that
children are raised in the "optimal" setting. Protecting the welfare of
children is a paramount State policy. Restricting marriage to
opposite-sex couples, however, cannot plausibly further this policy.
"The demographic changes of the past century make it difficult to speak
of an average American family. The composition of families varies
greatly from household to household." Massachusetts has
responded supportively to "the changing realities of the American
family,"and has moved vigorously to strengthen the modern family in its
many variations.... The "best interests of the child" standard does not
turn on a parent's sexual orientation or marital status.
The department has offered no evidence that forbidding marriage to
people of the same sex will increase the number of couples choosing to
enter into opposite-sex marriages in order to have and raise children.
There is thus no rational relationship between the marriage statute and
the Commonwealth's proffered goal of protecting the "optimal" child
rearing unit. Moreover, the department readily concedes that people in
same-sex couples may be "excellent" parents. These couples (including
four of the plaintiff couples) have children for the reasons others
do--to love them, to care for them, to nurture them. But the task of
child rearing for same-sex couples is made infinitely harder by their
status as outliers to the marriage laws.... Excluding same-sex couples
from civil marriage will not make children of opposite-sex marriages
more secure, but it does prevent children of same-sex couples from
enjoying the immeasurable advantages that flow from the assurance of "a
stable family structure in which children will be reared, educated, and
socialized...."
The third rationale advanced by the department is that limiting
marriage to opposite-sex couples furthers the Legislature's interest in
conserving scarce State and private financial resources. The marriage
restriction is rational, it argues, because the General Court logically
could assume that same-sex couples are more financially independent
than married couples and thus less needy of public marital benefits,
such as tax advantages, or private marital benefits, such as
employer-financed health plans that include spouses in their coverage.
An absolute statutory ban on same-sex marriage bears no rational
relationship to the goal of economy. First, the department's conclusory
generalization-- that same-sex couples are less financially dependent
on each other than opposite-sex couples--ignores that many same-sex
couples, such as many of the plaintiffs in this case, have children and
other dependents (here, aged parents) in their care. The department
does not contend, nor could it, that these dependents are less needy or
deserving than the dependents of married couples. Second, Massachusetts
marriage laws do not condition receipt of public and private financial
benefits to married individuals on a demonstration of financial
dependence on each other; the benefits are available to married couples
regardless of whether they mingle their finances or actually depend on
each other for support.
The department suggests additional rationales for prohibiting same-sex
couples from marrying, which are developed by some amici. It argues
that broadening civil marriage to include same-sex couples will
trivialize or destroy the institution of marriage as it has
historically been fashioned. Certainly our decision today marks a
significant change in the definition of marriage as it has been
inherited from the common law, and understood by many societies for
centuries. But it does not disturb the fundamental value of marriage in
our society.....
It has been argued that, due to the State's strong interest in the
institution of marriage as a stabilizing social structure, only the
Legislature can control and define its boundaries.... To label the
court's role as usurping that of the Legislature is to misunderstand
the nature and purpose of judicial review. We owe great deference to
the Legislature to decide social and policy issues, but it is the
traditional and settled role of courts to decide constitutional issues.
The history of constitutional law "is the story of the extension of
constitutional rights and protections to people once ignored or
excluded." This statement is as true in the area of civil
marriage as in any other area of civil rights.... Alarms about the
imminent erosion of the "natural" order of marriage were sounded over
the demise of antimiscegenation laws, the expansion of the rights of
married women, and the introduction of "no-fault" divorce. Marriage has
survived all of these transformations, and we have no doubt that
marriage will continue to be a vibrant and revered institution.
We also reject the argument suggested by the department, and elaborated
by some amici, that expanding the institution of civil marriage in
Massachusetts to include same-sex couples will lead to interstate
conflict. We would not presume to dictate how another State should
respond to today's decision. But neither should considerations of
comity prevent us from according Massachusetts residents the full
measure of protection available under the Massachusetts Constitution.
The genius of our Federal system is that each State's Constitution has
vitality specific to its own traditions, and that, subject to the
minimum requirements of the Fourteenth Amendment, each State is free to
address difficult issues of individual liberty in the manner its own
Constitution demands.
Several amici suggest that prohibiting marriage by same-sex couples
reflects community consensus that homosexual conduct is immoral. Yet
Massachusetts has a strong affirmative policy of preventing
discrimination on the basis of sexual orientation.
The department has had more than ample opportunity to articulate a
constitutionally adequate justification for limiting civil marriage to
opposite-sex unions. It has failed to do so. The department has offered
purported justifications for the civil marriage restriction that are
starkly at odds with the comprehensive network of vigorous,
gender-neutral laws promoting stable families and the best interests of
children. It has failed to identify any relevant characteristic that
would justify shutting the door to civil marriage to a person who
wishes to marry someone of the same sex.
The marriage ban works a deep and scarring hardship on a very real
segment of the community for no rational reason. The absence of any
reasonable relationship between, on the one hand, an absolute
disqualification of same-sex couples who wish to enter into civil
marriage and, on the other, protection of public health, safety, or
general welfare, suggests that the marriage restriction is rooted in
persistent prejudices against persons who are (or who are believed to
be) homosexual. "The Constitution cannot control such prejudices but
neither can it tolerate them. Private biases may be outside the reach
of the law, but the law cannot, directly or indirectly, give them
effect." Limiting the protections, benefits, and obligations of
civil marriage to opposite-sex couples violates the basic premises of
individual liberty and equality under law protected by the
Massachusetts Constitution....
Exploring
Constitutional Law
|