Jan 02 2007

What Will Massachusetts Do About Gay Marriage?

Published by at 5:18 pm under All General Discussions

I find it interesting that the first election cycle with Democrat control of Congress will also see a signature issue failure to greet its supporters. Gay Marriage will, in all likelihood, go down to defeat at the hands of voters:

Massachusetts lawmakers approved a measure on Tuesday that could give voters a chance next year to ban gay marriage in the only U.S. state where it is now legal.

But the 200-member Legislature, which has been waging a grueling legislative battle over the issue, immediately moved to reconsider its vote — a tactic that gay-marriage supporters hope could be used to defeat the proposal later Tuesday.

If Tuesday’s vote is not reversed and the ban passes another legislative test, Massachusetts residents will vote on it in 2008.

“If it goes to the ballot, it would be a disaster for this state,” said Arlene Issacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus. “The state will endure one of the nastiest and most divisive debates you’ve ever seen with the radical right money pouring in and an anti-gay campaign of the likes people could not possibly imagine.”

Amazing how the prospect of democracy scares people so. Divisive battles? Only if the losers don’t respect democracy. The American people are pretty firm on this issue (as they are on many). They support civil unions and oppose confusing those with the concept of marriage between a man and a women, not to mention the biological family. Just like the far right will never see the forced eviction of every illegal immigrant from this country, the left will never see support for forcing America to change its views on marriage and famuly at the whim of a judge’s gavel. That is why the proponents lost this battle before it began. The voters are pretty clear about one thing.

If Pols try and force solutions the people do not back, the voters tend to react very intensely in their resistence. Much stronger than they would have in a lost vote. When the courts decided to undemocratically impose their personal views on the electorate, the electorate responded very strongly. And they are not yet finished in sending the signal that they will be consulted on major issues or else. The Pols are learning the people are going to hold them accountable now.

6 responses so far

6 Responses to “What Will Massachusetts Do About Gay Marriage?”

  1. crosspatch says:

    Heh, the prospect of democracy frightened our founding fathers too. So much so that they were determined to make this country a republic, not a democracy. Madison said that democracy is “the tyranny of the majority” and others called it “mob rule”. The point being that in some cases a minority opinion needs to be allowed to exist. I don’t know if this is one of those items or not. But the people always have the final word. If the Legislature passes it and makes it law, the people can always toss out the legislators and change it back. In the end the people always get what they want. It just depends on how badly they want something.

  2. sbd says:


    TERM: marriage.

    TEXT: An institution; the foundation of the family and of society. 35 Am J1st Mar § 8. The status or relation of a man and a woman legally united as husband and wife. Baker v State, 86 Neb 775, 126 NW 300. A personal relation arising out of a civil contract to which the consent of the parties is essential. The voluntary union for life of one man and one woman as husband and wife, to the exclusion of all others, for the discharge to each other and to the community, of the duties legally incumbent on those whose association is founded on the distinction of sex. The act of becoming married.
    AUTHORITY: 35 Am J1st Mar § 4.


    Copyright (c) 2001. William S. Hein & Co., Inc.

    TERM: Defense of Marriage Act.

    TEXT: Federal statute passed in 1996 denying legal recognition of same sex marriages regardless of the validity of the marriage in the state or country where the ceremony was performed. The Act prevents same sex marriage partners from receiving federal benefits normally given to members of male/female marriages such as tax, health care, pension, Social Security, and survivor benefits.



    January 19, 2005, Decided

    The couple argued that DOMA and ch. 741.212 violated the Full Faith and Credit Clause, due process, equal protection, the Privileges and Immunities Clause, and the Commerce Clause. The court disagreed. Congress’s adoption of DOMA was an appropriate exercise of its power under the Full Faith and Credit Clause to regulate conflicts between the laws of different states concerning the validity of same-sex marriages. The ability to marry someone of the same sex was not a fundamental right under the Due Process Clause, nor was homosexuality a suspect class for purposes of the Equal Protection Clause. DOMA was therefore subject to rational basis review, and the statute was rationally related to the legitimate governmental interest of encouraging the raising of children in homes consisting of a married mother and father. The couple’s claims that DOMA violated the Privileges and Immunities and Commerce Clauses lacked merit.

    The Defense of Marriage Act (“DOMA”) provides:
    HN1No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.


    Plaintiffs’ Complaint asserts that DOMA conflicts with the Constitution’s Full Faith and Credit Clause. Article IV, Section I of the Constitution provides:
    Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    Plaintiffs argue that “once Massachusetts sanctioned legal same-gender marriage, all other states should be constitutionally required to uphold the validity of the marriage.” (Complaint, P 23). Plaintiffs believe that the differences in individuals’ rights to enter into same-sex marriages among the States, such as Florida and Massachusetts, is exactly what the Full Faith and Credit Clause prohibits. They also assert that DOMA is beyond the scope of Congress’ legislative power under the Full Faith and Credit Clause [**8] because Congress may only regulate what effect a law may have, it may not dictate that the law has no effect at all.

    This Court disagrees with Plaintiff’s interpretation of the Full Faith and Credit Clause. Congress’ actions in adopting DOMA are exactly what the Framers envisioned when they created the Full Faith and Credit Clause. DOMA is an example of Congress exercising its powers under the Full Faith and Credit Clause to determine the effect that “any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage” has on the other States. 28 U.S.C. §1738C. Congress’ actions are an appropriate exercise of its power to regulate conflicts between the laws of two different States, in this case, conflicts over the validity of same-sex marriages.

    Adopting Plaintiffs’ rigid and literal interpretation of the Full Faith and Credit would create a license for a single State to create national policy. See Nevada v. Hall, 440 U.S. 410, 423-24, 59 L. Ed. 2d 416, 99 S. Ct. 1182 (1979)(“Full Faith and Credit does not . . . enable one state to legislate for the other [**9] or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.”)(quoting Pacific Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 504-05, 83 L. Ed. 940, 59 S. Ct. 629 (1939)); Williams v. North Carolina, 317 U.S. 287, 296, 87 L. Ed. 279, 63 S. Ct. 207 (1942) (“Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state.”). The Supreme Court has clearly established that “the Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.” Hall, 440 U.S. at 422 (citing Pacific Ins. Co, 306 U.S. at 493). Florida is not required to recognize or apply Massachusetts’ same-sex marriage law because it clearly conflicts with Florida’s [*1304] legitimate public policy of opposing same-sex marriage. See infra pp. 9-18; Fla. Stat. § 741.212. n6

    Plaintiffs assert that Baker v. Nelson is not binding upon this Court because the Supreme Court did not issue a written opinion and because the case was decided thirty-two (32) years ago, before the “current civil rights revolution.” (Plaintiffs’ Memorandum of Law in Opposition (Dkt. # 48), pp. 9-10). This Court disagrees. A dismissal for lack of a substantial federal question constitutes an adjudication on the merits that is binding on lower federal courts. See Hicks, 422 U.S. at 344. As Justice White noted, the Court was “not obligated to grant the case plenary consideration . . . but [the Court was] required to deal with its merits. Id; see also Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247, 3 L. Ed. 2d 1200, 79 S. Ct. 978 (1959) (“votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case . . .”).

    Although Baker v. Nelson is over thirty (30) years old, the decision addressed the [*1305] same issues presented in this action and this Court is bound to follow the Supreme Court’s decision. See Hicks, 422 U.S. at 344-45 (“lower courts are bound by summary decision by this Court [**13] ‘until such time as the Court informs (them) that (they) are not.”)(quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)); see also McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D.Cal. 1980), aff’d 673 F.2d 1036, 1039 n.2 (9th Cir. 1982).

    The Supreme Court’s holding in Lawrence does not alter the dispositive effect of Baker. See Agostini v. Felton, 521 U.S. 203, 207, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997) (“The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decision.). The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this [**14] Court, with any reason to believe that the holding is invalid today. n8 Accordingly, Baker v. Nelson is binding precedent upon this Court and Plaintiffs’ case against Attorney General Ashcroft must be dismissed.


    Recent Eleventh Circuit precedent also constrain this Court to rule contrary to Plaintiffs’ position. Plaintiffs argue that their right to marry someone of the same sex is a fundamental right that is guaranteed by the Fourteenth Amendment’s Due Process Clause. n9 If Plaintiffs’ have a fundamental right to enter into a same-sex marriage, then this Court must apply a “‘strict scrutiny’ analysis that forbids government infringement on a fundamental liberty interest ‘unless the infringement is narrowly tailored to serve a compelling state interest.'” In re Kandu, 315 B.R. 123, 138 (W.D.Wash. 2004)(quoting Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 117 S. Ct. 2258, 117 S. Ct. 2302 (1997)). [**15] If the right to marry someone of the same sex is not a fundamental right, then the Court will apply the more liberal rational basis analysis in determining whether DOMA is constitutional. Glucksberg, 521 U.S. at 728.

    The Supreme Court has defined fundamental rights as those liberties that are “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325-26, 82 L. Ed. 288, 58 S. Ct. 149 (1937)). The Court observed that the Due Process clause “specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.'” Glucksberg, 720-21 (quoting Moore v. East [*1306] Cleveland, 431 U.S. 494, 503, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) [**16] (plurality opinion)).

    Although the Supreme Court has held that marriage is a fundamental right, Glucksberg, 521 U.S. at 720, no federal court has recognized that this right includes the right to marry a person of the same sex. See Kandu, 315 B.R. at 139; Standhardt v. Superior Court of Arizona, 206 Ariz. 276, 281, 77 P.3d 451, 456 (2003). Plaintiffs urge this Court to interpret the Supreme Court’s decision in Lawrence v. Texas as establishing a fundamental right to private sexual intimacy. Plaintiffs argue that this Court should expand the fundamental right recognized in Lawrence to include same-sex marriages.

    In Lawrence, the Supreme Court struck down a Texas statute that criminalized private sexual conduct between consenting adults of the same sex. 539 U.S. at 578-79. The Court found that the statute could not stand under rational review because it did not further a legitimate state interest that justified the intrusion into the personal lives of homosexuals. Id.

    But the Supreme Court’s decision in Lawrence cannot be interpreted as creating a fundamental right to same-sex marriage. First, the Eleventh [**17] Circuit disagrees with Plaintiffs’ assertion that Lawrence created a fundamental right in private sexual intimacy and this Court must follow the holdings of the Eleventh Circuit. See Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir.), reh’g en banc denied by, 377 F.3d 1275 (2004), and cert. denied, 543 U.S. , 160 L. Ed. 2d 825, 125 S. Ct. 869, 2005 U.S. LEXIS 285 (2005) (“We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.”); Williams v. AG, 378 F.3d 1232, 1238 (11th Cir. 2004); see also Standhardt, 206 Ariz. at 281-82, 77 P.3d at 456-57. The Court in Lawrence did not find private sexual conduct between consenting adults to be a fundamental right. Lawrence, 539 U.S. at 586 (Scalia, J., dissenting) (“nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.'”). Rather, the Court determined that the Texas [**18] statute failed under the rational basis analysis. Lawrence, 539 U.S. at 578-79.

    Second, the majority in Lawrence was explicitly clear that its holding did not extend to the issue of same-sex marriage, stating that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence 539 U.S. at 578; see also Standhardt, 206 Ariz. at 282, 77 P.3d at 457 (“If the Court did not view such an intimate expression of the bond securing a homosexual relationship to be a fundamental right, we must reject any notion that the Court intended to confer such status on the right to secure state-sanctioned recognition of such a union.”). It is disingenuous to argue that the Supreme Court’s precise language in Lawrence established a fundamental right to enter into a same-sex marriage.

    Moreover, this Court is not inclined to elevate the ability to marry someone of the same sex to a fundamental right. Although the Court recognizes the importance of a heterosexual or homosexual [*1307] individual’s choice of a partner, not all important decisions are protected fundamental rights. [**19] Glucksberg, 521 U.S. at 727-28. The Supreme Court has cautioned against the dangers of establishing new fundamental rights:

    By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. Glucksberg, 521 U.S. at 720.

    The Eleventh Circuit has also noted that once a right is elevated to a fundamental right, it is “effectively removed from the hands of the people and placed into the guardianship of unelected judges. We are particularly mindful of this fact in the delicate area of morals legislation.” Williams, 378 F.3d at 1250 (internal citations omitted). “Of course, the Court may in due course expand Lawrence’s precedent . . . but for us preemptively to take that step would exceed our mandate as a lower court.” Williams, 378 F.3d at 1238; see also Lofton, 358 F.3d at 827 [**20] (the “legislature is the proper forum for this debate, and we do not sit as a superlegislature ‘to award by judicial decree what was not achievable by political consensus.'”) quoting Thomasson v. Perry, 80 F.3d 915, 923 (4th Cir. 1996)). n10 Therefore, the Court finds that the right to marry a person of the same sex is not a fundamental right under the Constitution


    Plaintiffs also argue that this Court should apply strict scrutiny in determining the constitutionality of DOMA because it violates the Equal Protection Clause of the Fourteenth Amendment. n11 The Eleventh Circuit has held that homosexuality is not a suspect class that would require subjecting DOMA to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment or the equal protection component of the Fifth Amendment’s Due Process Clause. See Lofton, 358 F.3d at 818 (holding that homosexuality is not a suspect class and noting that “all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.”); see also Kandu, 315 B.R. at 144 (Lawrence “did not hold that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis”) Moreover, DOMA does not discriminate on the basis of sex because it treats women and men [*1308] equally. Kandu, 315 B.R. at 143 (“. . . DOMA does not classify according to gender, and the Debtor is not entitled to heightened scrutiny under this theory.”). Therefore this Court must apply rational [**22] basis review to its equal protection analysis of the constitutionality of DOMA.


    As the Court noted above, because Plaintiffs do not have a fundamental right to enter into a same-sex marriage and because DOMA does not create a suspect classification, the constitutionality of DOMA is reviewed under the rational basis test. Under rational basis review, this Court must determine whether the challenged legislation is rationally related to a legitimate state interest. See Lofton, 358 F.3d at 818 (citing Heller v. Doe, 509 U.S. 312, 313-14, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993)). “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes [**23] fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communs., Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993). Rational basis review is “very deferential to the legislature, and does not permit this Court to interject or substitute its own personal views of DOMA or same-sex marriage.” Kandu at 145. This presumption of validity remains true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Lofton, 358 F.3d at 818 (quoting Romer v. Evans, 517 U.S. 620, 632, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996)).

    The burden in on the Plaintiffs to negate “every conceivable basis which might support [the legislation], whether or not the basis has a foundation in the record.” Id. at 818, (quoting Heller 509 U.S. at 320-21). The United States has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. (quoting Heller, 509 U.S. at 320). “A statutory classification fails rational-basis [**24] review only when it ‘rests on grounds wholly irrelevant to the achievement of the State’s objective.'” Heller, 509 U.S. at 324 (quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71, 58 L. Ed. 2d 292, 99 S. Ct. 383 (1978)).

    The United States asserts that DOMA is rationally related to two legitimate governmental interests. First, the government argues that DOMA fosters the development of relationships that are optimal for procreation, thereby encouraging the “stable generational continuity of the United States.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). DOMA allegedly furthers this interest by permitting the states to deny recognition to same-sex marriages performed elsewhere and by adopting the traditional definition of marriage for purposes of federal statutes. Second, DOMA “encourage[s] the creation of stable relationships that facilitate the rearing of children by both of their biological parents.” (Memorandum in Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). The government argues that these stable relationships encourage the creation of stable families that are well suited to nurturing and raising children.

    Plaintiffs offer little to rebut the government’s argument that DOMA is rationally related to the government’s proffered legitimate interests. Rather, Plaintiffs repeatedly urge the Court to apply the more rigid strict scrutiny analysis.

    Although this Court does not express an opinion on the validity of the government’s proffered legitimate interests, it is bound by the Eleventh Circuit’s holding that encouraging the raising of children in homes consisting of a married mother and father is a legitimate state interest. See Lofton, 358 F.3d at 819-20. DOMA is rationally related to this interest. Moreover, Plaintiffs have failed to satisfy their burden of establishing that DOMA fails rational basis review. See Lofton, 358 F.3d at 818-19; Kandu, 315 B.R. at 148. n12 Accordingly, the United States’ motion to dismiss is granted.


    In short, Plaintiffs’ argument is that, given their recent “civil rights revolution,” the United States Supreme Court is likely to declare that same-sex marriage is a fundamental right that is protected by the Constitution. Plaintiffs are asking this Court to create such a fundamental right immediately, before the Supreme Court revisits the issue of same-sex marriage. But that is not this Court’s role. This Court is bound to follow the precedent established by the Eleventh Circuit Court of Appeals and the United States Supreme Court. None of their precedent acknowledge or establish a constitutional right to enter into a same-sex marriage. The legislatures of the individual states may decide to permit [**27] same-sex marriage or the Supreme Court may decide to overturn its precedent and strike down DOMA. But, until then, this Court is constrained to hold DOMA and Florida Statutes § 741.212 constitutionally valid.

    It is therefore ORDERED AND ADJUDGED that:

    1. United States Attorney General John Ashcroft’s Motion to Dismiss (Dkt. # 31) is GRANTED.

    2. Plaintiffs’ claim against Defendant Ashcroft is dismissed and the Clerk is directed to terminate him as a party.

    DONE and ORDERED in Tampa, Florida on January 19, 2005.



  3. CrewDog says:

    It is not clear that the electorate will vote to ban gay marriage in Massachusetts.

    Rhetoric on the issue in radio and print media are just a function of the “echo chamber effect”. If you listen to conservative pundits like Howie Carr (on WRKO), or read the Boston Herald, you would be inclined to think voters are overwhelmingly in favor of the ban.

    On the other hand, Boston Globe readers and listeners of more liberal-leaning radio shows are probably more inclined to think a ban will not get voted in.

    Even in the event a gay marriage ban is voted in, it does not rule out civil unions as a legal remedy.

    Personally, I don’t don’t care either way. It “neither picks my pocket nor breaks my leg.”

    On second thought, it does sort of have the vague odor of “tyranny of the majority.” Some people still insist the U.S. Civil War was fought over states’ rights and was not really about slavery.

  4. Barbara says:

    It is just another attack on family values and what makes this country great. They are slowly eroded everything this country was founded on from family, religion, patriotism, and our whole way of life.

  5. CrewDog says:


    I understand what you are saying, but I have to disagree. A child who lives in a home with an alcoholic father who can’t hold a steady job, and a mother who is a crack addict on SSI disability, cannot possibly make a better home for the child than a two same sex parents who are emotionally and financially stable. Drugs, and the toll they take on our society in the form of wrecked families, criminal activity, and physical violence are a much bigger threat to our whole way of life.

    Such a family lives down the street from me. Their little girl is the neighborhood troublemaker. How else can she be? Her parents are pathetic. The police are over their house at least once a week because of domestic violence issues.

    Gay people are not generally more perverted or promiscuous than heterosexuals. You may draw that conclusion because communities that are openly accepting of gay people tend to also accept all kinds of eccentric behavior. (Provincetown on Cape Cod is an example that’s within driving distance for me. I think San Francisco is too politically polarized on just about every issue, maybe because of its legacy of 1960s radicalism.)

    I’m not sure why you equate the issue with attacks on family, religion, and patriotism. I retired from the U.S. Air Force in 1997. During my career, I served with people who were gay. They were every bit as professional, patriotic, and trustworthy as the next person.

    Unfortunately, official DoD policy was that once someone was “outed”, they had to be discharged. It is shameful that a highly competent professional is suddenly deemed unsuited for voluntary service to their country, just because they are gay. As a supervisor, I know that many commanders and first sergeants thought the policy was stupid.

  6. Barbara says:


    Perhaps I did not make myself clear. I have nothing against gay people. I was talking about the liberals who want this country to change to socialism. And they are the ones pushing this. As I was saying they want to tear down the fabric of our life. And a way to do this is to make marriage unimportant and irrelevant. Just as they want to make religion unimportant and irrelevant. Marriage is the basis of family life in the majority. And why gays feel incombant to marry each other is beyond my comprehension. All this does is belittle the state of marriage. These people could get the same protections legally except for government benefits, of course.

    And if you open this door for gay marriage where will it stop? Anyone can marry anyone they want to of the opposite sex now but what about people marrying multiple people of either sex or both sexes? Pologamy? We don’t want to start down this slippery slope where you can’t stop when you want to. And who knows where we would end up.

    What you cite about the family down the street from you is not the norm. It is sad to know that cases like these exist and they are all to prevalent but they have nothing to do with gay marriage per se.