Frequently Asked Questions:

Is same-sex "marriage" legal in Massachusetts?

By Robert Paine, Esq.

(A) CIVIL MARRIAGE IN MASSACHUSETTS
DOES NOT PERMIT SAME-SEX "MARRIAGE"

How does one enter into a civil marriage in Massachusetts?
Civil marriage is an institution created by the State. The legal authority to enter into a civil marriage in Massachusetts is granted exclusively by statute, Chapter 207. The marriage statutes are derived from English common law and were first enacted in colonial times. In contrast, in other places like Canada, there exists a right to marry outside of the statutory authority. That legal right is granted under the "common law" and it is called common law marriage. Common law marriage, however, has never been allowed in Massachusetts.

Does the marriage statute, Chapter 207, permit same-sex "marriage"?
No. The SJC said:

"We conclude, as did the judge, that G. L. c. 207 may not be construed to permit same-sex couples to marry." Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

But since Chapter 207 does not expressly exclude same-sex "marriage", why wouldn't it be permitted?
Simply because the marriage statute does not explicitly identify a particular "marriage" as void, does not make it a legal marriage. Milford v. Worcester (1810).

(B) WHAT ACTUALLY HAPPENED IN GOODRIDGE . . .
IS NOT WHAT MANY PEOPLE THINK

What did the SJC do in the Goodridge case?
The SJC essentially did three things:

1. The SJC decided that there is no rational basis allowing the marriage statute to refuse same-sex couples from the civil institution of marriage.
2. Claiming the authority to "refine a common-law principle" and relying on a previous decision in the Halpern case decided by the Court of Appeal for Ontario, Canada, the four justices of the Massachusetts SJC claimed to reformulate the common-law meaning of marriage ("civil marriage") to include same-sex couples. They said:
   "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
3. and finally, they declared the marriage statute's exclusion of same-sex couples to be unconstitutional which is all they had been asked to do by the plaintiffs (the same-sex couples), saying: "We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003).

(C) THE SJC VIOLATED THEIR CONSTITUTIONAL RESPONSIBILITY BY CLAIMING NOT TO FIND A FAIRLY DEBATABLE RATIONAL BASIS

If it's "fairly debatable" that the marriage statute has a rational basis, can the SJC declare that statute unconstitutional?
No. "It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. ... If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature." Mass. Comm'n Against Discrimination v. Colangelo, 344 Mass. 387 (1962). [emphasis added]

Whether the marriage statute has a rational purpose to exclude same-sex couples is, at the very least, fairly debatable. Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003) (Cordy, J., dissenting) "It is difficult to imagine a State purpose more important and legitimate than ensuring, promoting, and supporting an optimal social structure within which to bear and raise children. At the very least, the marriage statute continues to serve this important State purpose." [See New York Case; Washington State Case.] Therefore, by finding no rational basis, the SJC has violated its constitutional duty, by having substituted its judgment for that of the Legislature.

(D) THE SJC'S CLAIM TO REFORMULATE THE DEFINITION OF MARRIAGE WAS A LEGALLY INSIGNIFICANT ACTION THAT EXPIRED ON MAY 17, 2004

Can the SJC make policy decisions on marriage?
No. A statute is presumed to be constitutional, and every rational presumption in favor of its validity must be made. "It is essential … that there be an impartial interpretation of the laws." (Part I, Article XXIX, Massachusetts Constitution) "[J]udges are bound by the Constitution and must see that its provisions and conditions are at all times faithfully observed, they must determine that question with sole reference to the facts of the case and the language of the Constitution and without the slightest regard to their own personal views as to the desirability or otherwise of the law involved." Sears v. Treasurer and Reciever General, 327 Mass. 310, 320-22 (1951). "[J]udges cannot look to public opinion polls or election results for constitutional meaning." Commonwealth v. O'Neal, 369 Mass. 242 (1975) (Tauro, C.J., concurring). "A court is only to inquire into whether the Legislature had the power to enact the statute and not whether the statute is wise or efficient." Pendergast, 416 Mass. 698, 703 (1993); American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 190 (1978); Commonwealth v. Leis, 355 Mass. 189, 200 (1969) (Kirk, J. concurring)

The Massachusetts Constitution explicitly left marriage in the hands of the Governor and the Legislature in designing the three branches of government. It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions. (The Legislature has given the Court only limited authority, in just four areas concerning marriage: divorce, alimony, annulment, and affirmation.)

Can the SJC redefine (reformulate) the meaning of a word in a document to change the meaning of that term in that document?
No. The SJC claimed to be able to do so by citing Halpern (Canada), Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"), and Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing the common-law rule of certain interspousal immunity). In stark contrast to the Goodridge facts, not one of those cases involved the definition of a word that exists in either a statute or in the Massachusetts Constitution.

The Halpern case was about "common law marriage" which, unlike in Massachusetts, exists in some form in Canada. Indeed, the Halpern court specifically addressed this important distinction twice acknowledging that they would not be able to do what they were doing had a statute been at the center of the controversy:

[B]ecause this appeal involves a challenge to a common law, judge-made rule, the analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.

And a little later on in the opinion:

[T]he argument . . . that we should defer to Parliament once we issue a declaration of invalidity is not apposite in these circumstances. Schachter provides that the role of the legislature and legislative objectives is to be considered at the second step of the remedy analysis when a court is deciding whether severance or reading in is an appropriate remedy to cure a legislative provision that breaches the Charter. These considerations do not arise where the genesis of the Charter breach is found in the common law and there is no legislation to be altered. Any lacunae created by a declaration of invalidity of a common law rule are common law lacunae that should be remedied by the courts, unless to do so would conflict with the principles of fundamental justice.

In Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987), the SJC had reinterpreted the word "issue" in a will, but made that reinterpretation prospective out of respect for the principle in law that says that the testator's intent is what matters when interpreting the words of a will. The SJC decided not to change that word in that document (the testator's will) because doing so would have changed the intent of the testator.

In Lewis v. Lewis, 370 Mass. 619, 629 (1976), the SJC abrogated the common law doctrine of interspousal immunity. Again, there was no statutory or Constitutional construction required, simply the redefinition of a word defined originally by a judge in the common law.

If the SJC actually reformulated the common law meaning of marriage, does that affect the statute?
No. Common law marriage has never been allowed in Massachusetts. Even if the SJC could change the common law definition of marriage (putting aside the legislative aspects of that action), the common law is not the highest but the lowest form of law and, therefore, is subordinate to legislation enacted by the representatives of the people (i.e., the statute supercedes the common law, rendering that common law redefinition ineffective).

Didn't the SJC essentially rewrite the statute?
No. The SJC does not possess the authority to change the plain meaning of a statute's language. The SJC repeatedly has acknowledged it has "no right to read into [a] . . . statute 'a provision [extending a definition] which the Legislature did not see fit to put there." Commonwealth v. Santos (2003) Similarly, the Court has stated it will not "add words to a statute that the Legislature did not put there . . ." Commonwealth v. Poissant(2005) It is the Legislature alone whose legal prerogative it is to adjust the statutes to changed conditions. Any judicial attempt to legislate is a nullity.

(E) THE SJC CANNOT CHANGE THE DEFINITION OF WORDS IN THE CONSTITUTION

Can the SJC declare the statute unconstitutional when the term "marriage" explicitly was written into the Constitution by the framers?
No. "It is a fundamental principle of constitutional construction that every word and phrase in the Constitution was intended and has meaning. Passing public passions and emotions . . . have little to do with the meaning of the Constitution, as it is written. Commonwealth v. O'Neal, 369 Mass. 242 (1975) (TAURO, C.J., concurring). All [the] words [of the Constitution] must be presumed to have been chosen advisedly." Powers v. Secretary of Administration, 412 Mass. 119 (1992); Commonwealth v. Bergstrom, 402 Mass. 534, 541 (1988), quoting Mount Washington v. Cook, 288 Mass. 67, 70 (1934). Its phrases are to be read and construed according to the familiar and approved usage of the language. Yont v. Secretary of the Commonwealth, 275 Mass. 365 (1931). Jones v. Robbins, 8 Gray, 329, 340. Tax Commissioner v. Putnam, 227 Mass. 522, 523, 524. Attorney General v. Methuen, 236 Mass. 564, 573. Loring v. Young, 239 Mass. 349, 372. United States v. Sprague, 282 U. S. 716.

The word "marriage", because it exists in the Constitution, therefore contains a specific meaning; the very same meaning that the Supreme Judicial Court found that the term "marriage" has in the marriage statute; the union between one man and one woman. It is an inherent logical contradiction to say that the current definition of a word ("marriage") that exists explicitly in the Constitution since its original signing, somehow is unconstitutional because that definition violates other words in the Constitution (ensuring equal protection and due process); words that were written at the exact same time as the word in question. Such a contradiction "stands constitutional analysis on its head." Commonwealth v. Nissenbaum (1995)

To ignore the use of the explicit term in the Constitution, while declaring its actual (and limiting) definition unconstitutional, would render the use of that word "marriage" as it exists in the Constitution, meaningless. But "words of the Constitution cannot be ignored as meaningless." Commonwealth v. Johnson (1994) The words of the Constitution and its Amendments "are mandatory and not simply directory. They are highly important. There must be compliance with them." Town of Mt. Washington v, Cook (1934) "If the meaning of [the word] is plain and [it is] not controlled by other words or by some clear demonstration that [it is] not to be taken in a literal sense, the plain literal meaning must prevail." Colantuoni v. Selectmen of Belmont (1951) No word, therefore, can be construed out of the Constitution. "[W]here the intention is clear there is no room for construction and no excuse for interpolation or addition." Town of Mt. Washington v. Cook (1934)

A specific, intended meaning, thus, must be attributed to the word "marriage" because it exists explicitly in the Constitution. The SJC was required, but failed, to give meaning to that term in addressing the "constitutionality" of the definition of that same word as it is used in the statute, Chapter 207. Commonwealth v. Rahim (2004) It was not within the power of the Court to choose to neglect that word. Bowe v. Secretary of the Commonwealth (1946)

(F) THE MARRIAGE STATUTE IS STILL IN EFFECT AND PROHIBITS SAME-SEX "MARRIAGE"

When the SJC declares a statute "unconstitutional", what happens to the statute?
Setting aside for the moment the Massachusetts constitutional provisions which prevent the Court from performing any legislative act (including the striking down of a statute), typically when the SJC finds a law repugnant to the constitution, they will either strike the law or sever the offensive portion of the statute.

Did the SJC strike the law or sever a portion of it?
No. The law was neither stricken nor severed. The SJC explicitly stated:
"Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society."

Because the SJC could not force the legislature to change the law, the SJC simply gave the legislature 180 days to act consistently with their decision declaring the statute unconstitutional. The Court said:

We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983)."

If the statute has not been stricken, what is its legal status?
Logic alone dictates that if a statute has not been stricken, it remains "on the books" until it is repealed by the Legislature. The Constitution also demands this result. (Massachusetts Constitution, Part I, Art. XX.)

Did the Legislature ever change the marriage statute to include same-sex couples?
No. A bill was introduced in the 2005-2006 session to change the statute to include same-sex couples, but it was not acted upon. (Bill #H977, #S967)

If the Legislature never changed the Massachusetts marriage statute, isn't the statute still in effect?
Yes! The statute is still in effect. When the time came and went for the Legislature to act consistent with the Goodridge decision and the Legislature failed to change the marriage laws by the 180-day deadline, the Goodridge suggestion essentially expired. That means that the law of Massachusetts currently prohibits same-sex "marriage".

(G) GOV. ROMNEY'S EXECUTIVE ORDER VIOLATED HIS SWORN CONSTITUTIONAL DUTY TO EXECUTE THE LAWS OF MASSACHUSETTS

Was Governor Romney forced to issue directives to require (1) the Dept. of Public Health to print same-sex marriage licenses, or (2) Town Clerks to issue marriage licenses to same-sex couples, or (3) Justices of the Peace to perform such "marriages" -- all because the Goodridge decision declared the marriage statute "unconstitutional"?
No. When any one of the branches of government acts outside its Constitutional authority, those unlawful actions are null and void. Pennoyer v. Neff (1877) Exceeding the scope of legal authority granted to or overreaching the jurisdiction bestowed upon a court, is a nullity. Guardianship of Anthony (1888) So if the SJC through the Goodridge case, intended their declaration to change the marriage statute, such an action is unconstitutional, a nullity, and need not be complied with by the Governor. And on the other hand, if the SJC did not intend to change the marriage statute, then the marriage statute has never changed and the Governor had no responsibility, duty nor authority to issue his executive order demanding that the town clerks and justices of the peace certify and solemnize these fraudulent marriages.

But aren't same-sex couples already "married" because they have already received marriage certificates?
No. It is quite clear that the act of granting a license must be annulled when the law does not permit its issuance. Werner v. Board of Appeals of Harwich (1974) A marriage that is not duly authorized "is not a legal marriage" and "is not entitled to the incidents of a marriage duly solemnized." Milford v. Worcester ___ Mass. 47, 56 (1810) The reason lies in the venerable legal principle that one can only receive the title (power, authority, ownership) that one has been given; that is, a person can stand in no greater position, nor obtain greater ownership than that which was transferred. Russell v Secretary of Commonwealth (1939) Nemo dat qui non habet. ("You cannot give what you do not have.") Thus, no matter how many licenses the town clerks churn out, neither the statute, nor the Constitution permits same-sex "marriage". Governor Romney's lack of power and his failure to execute the laws of Massachusetts means that "no valid [marriage certificate] has been issued. . . Only by preserving this fundamental principle can constitutional government be preserved and orderly progress assured." Sears v. Treasurer and Receiver General (1951) "It would be astonishing and intolerable if the [words] so carefully inserted in the [Constitution] could be disregarded by [the Supreme Judicial Court and the Governor] without consequence and so in effect turned into mere admonitions and recommendations." Sears v. Treasurer and Receiver General 327 Mass. 310, 321-22 (1951)

Are same-sex couples somehow "married" in a common law marriage?
No. "Obtaining a marriage license [in Massachusetts] is a necessary prerequisite to civil marriage." Goodridge v. Department of Pub. Health 440 Mass. 309 (2003). Common law marriage has never been allowed in Massachusetts. Commonwealth v Munson (1879)

How could we all have been duped; i.e., How could a Governor who went to Harvard law school, every lawyer in Massachusetts, Constitutional experts, legal pundits, professors of law, and journalists fail to realize that there is no legal authority for same-sex marriage in Massachusetts?
A mix of intellectual laziness, poor understanding of the Constitution and separation of powers, and above all -- a tremendous lack of political courage.