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Q: Same Sex Marriage Questions ( Answered 4 out of 5 stars,   0 Comments )
Subject: Same Sex Marriage Questions
Category: Relationships and Society > Gay, Lesbian, and Bisexual
Asked by: statepolice1971-ga
List Price: $4.50
Posted: 09 Feb 2004 05:25 PST
Expires: 10 Mar 2004 05:25 PST
Question ID: 304934
With regard to same sex marriage in Massachusetts:

I would like to know the probability that same sex marriages will
actually become legal and remain legal in Massachusetts.  And, what is
the liklihood that a change in their state constitution to not
recognize marriage between two same sex couples coming to light? 
Additionally, what is the probability that this issue will reach the
US Supreme Court and what decision will most likely come from it?

This is my first time asking a question so I hope I'm doing it
correctly.  I am interested in an educated opinion as well as any
statistics and/or past voting history of the Justices which would lead
you to your conclusion.  Thank you.
Subject: Re: Same Sex Marriage Questions
Answered By: mvguy-ga on 09 Feb 2004 11:16 PST
Rated:4 out of 5 stars
Chances are very high that gay marriages will become the law of the
land in Massachusetts. The real question is if such recognition will
be overturned, and if so how long it will take.

First of all, my educated opinion (based on having a degree in
political science and about 20 years of background as a journalist
covering government, plus an interest in this and other social issues)
is that the chance that the Massachusetts Supreme Judicial Court will
reverse itself before its ruling last year goes in effect is close to
nil. Courts just don't do that. The court had a chance to accept a
compromise of sorts,  allowing "civil unions"  that would be the same
legally as marriages except in name. That decision came in an advisory
opinion last week. By asking for an advisory opinion, the state Senate
was in effect giving the high court an out, but it didn't take it.

You can read that advisory opinion here:

Opinions of the Justices to the Senate

It doesn't really matter what the past opinions of the state's
justices have been. They were given an opportunity to moderate the
effect of their ruling, and the majority refused to do so.

I suppose there's the remote possibility that the state's political
leaders will decide to defy the state's high court. But I haven't seen
indication anyone expects that to happen.

Note that the ruling was based on the state's constitution. That makes
the prospect of an appear to federal court very unlikely to succeed.
Federal courts don't overturn interpretations of state law unless
there's a clear federal constitutional problem involved, which in this
case there isn't.

So the question becomes how long it will take to amend the
Massachusetts state constitution, and if that will happen. Newspaper
reports say it would take about two years; the proposal would have to
go through a hearings process and then be subject to a vote of the
people, so we're probably talking about a vote in the 2006 elections.

I'm not sure I can give you a reliable percentage chance that the
overturning attempt will succeed. If I were to guess (and this is only
a guess), I'd say chances are about 40 percent it will be overturned.
On the one hand, the governor and many politicians are against gay
marriage. But the longer same-sex marriages are allowed, the more they
are likely to become accepted, even if grudgingly so.  Nobody really
knows how this will play out, but it will certainly be interesting to

In any case, both sides are gearing up for a political battle. The
nature of the political fight being developed indicates that neither
side is certain of victory or defeat. Here are two recent news stories
(one from a publication highly sympathetic to gay marriage, the other
just as strongly not) that may be of interest:

Massachusetts Mobilizes For Gay Marriage Showdown

Massachusetts faces marriage showdown

To find other recent news stories on this issue, use the following search:

Google News: massachusetts marriage

Like I've already suggested, I don't expect the Massachusetts decision
itself to reach the U.S. Supreme Court.  However, I expect that at
some point the issue in general will come before the court.
Specifically, there likely will be some decision involving the extent
to which other states have to recognize gay marriages and/or provide
benefits to same-sex couples.

At this point, I believe the court would allow states to not recognize
other state's same-sex marriages. Here's the relevant line in the U.S.

Article IV, Section 1
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.

The federal Defense of Marriage Act explictly allows state's to not
recognize same-sex marriages of other states, and the Constitution
seems clear enough that a contrary decision is unlikely.  But if
federal law changes or if the culture becomes accepting of same-sex
marriage, a different outcome might occur at some point (especially as
to employee benefits to same-sex couples). But I don't expect it. 
Unless an amendment is made to the U.S. Constitution (which is
extremely difficult to accomplish for something controversial), the
issue will continue to be one that's decided at the state level.

I hope this answer has been useful for you.

Best wishes,


Google searches used:

"full faith and credit"

massachusetts supreme judicial court
statepolice1971-ga rated this answer:4 out of 5 stars
Thank you for your answer.  I am pleased with your posting.

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