Wendy (here_be_dragons) wrote,
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Massachussetts' Same-Sex Marriage Ruling

I received this e-mail yesterday from an e-mail subscription list (Human Rights Watch), and I thought it might be of interest to some of you here. Hopefully the fact that I'm crediting the article, and including their links and such at the end, eliminates any copyright violation issue. In any case, I doubt Human Rights Watch would mind me giving their work just a slightly broader audience:


U.S.: Same-Sex Marriage Ruling Upholds Equality Under Law
Ensuring Equality Across State Lines Is Next Step

(New York, February 6, 2003) -- The Massachusetts high court's ruling that the
state must extend full marriage rights to same-sex couples is a victory for the
principle of equality under law, Human Rights Watch said today. The U.S. federal
and state governments must ensure that marriages receive legal recognition
without discrimination.

"The court has rightly held that discrimination is as wrong in civil marriage as
in any other public institution," said Kenneth Roth, executive director of Human
Rights Watch. "Separate but equal holds true no more in marriage than it did in
education."

On November 18, the Supreme Judicial Court-Massachusetts' highest court-ruled
that the state "has failed to identify any constitutionally adequate reason for
denying civil marriage to same-sex couples." The court required the state
legislature to give those couples the rights enjoyed by married people within
180 days.

Governor Mitt Romney, Attorney General Thomas Reilly and members of the state
legislature then proposed that the legislature instead create "civil unions" for
gay and lesbian couples, providing many of the rights of marriage. Legislators
then asked the Supreme Judicial Court for an advisory opinion on whether a law
creating such unions-but restricting marriage to heterosexual couples-would meet
its requirements.

"The history of our nation has demonstrated that separate is seldom, if ever,
equal,'' the court held in the advisory opinion. The court maintained that
Massachusetts could not create an "unconstitutional, inferior and discriminatory
status for same-sex couples." The court also condemned any difference in rights
or any "choice of language" that assigned such couples "to second-class status."

In a September 2003 briefing paper (at http://hrw.org/backgrounder/lgbt/civil-
marriage.htm
)
on equality in civil marriage, Human Rights Watch observed that while civil
unions have represented progress, states still have an obligation to equality.
Civil unions do not carry the same promises of recognition across international
borders that marriage ordinarily implies. The burden is on governments to
justify refusing recognition to foreign marriages, but the burden usually-and
unfairly-rests on partners in civil unions to justify their recognition abroad.

"States may create a special form of partnership for all couples in addition to
the option of marriage," said Roth. "But civil unions should not be created as a
means to deny same-sex couples equal rights."

The Defense of Marriage Act, enacted by the U.S. government in 1996, prohibits
the federal government from recognizing same-sex marriages and allows states to
withhold such recognition. An eventual constitutional challenge to this law is
likely in light of the Massachusetts ruling.

In 1994 the United Nations Human Rights Committee found in its decision in
Toonen v. Australia that discrimination based on sexual orientation is a
violation of international human rights. Last year the Human Rights Committee
determined that denying government pension benefits to same-sex partners is
unacceptable discrimination. The European Court of Human Rights reached a
similar conclusion in its 2003 ruling in the case of Karner v. Austria.

Two European countries, the Netherlands and Belgium, recognize full equality in
civil marriage. However, same-sex marriages performed in these countries are
still not recognized across the European Union.

"The Massachusetts decision will challenge lawmakers to acknowledge that
marriage is not exempt from the commitment to equal treatment," said Roth. "It
is discriminatory to refuse to recognize marriages on the basis of sexual
orientation."

Massachusetts will still convene a constitutional convention to decide whether
to amend the state's constitution to prohibit same-sex marriage. However, such
an amendment would have to be ratified by the state's voters and could not take
effect until 2006. Before then, full equality in marriage would thus become the
law in Massachusetts.

Human Rights Watch was signatory to an amicus brief to the Supreme Judicial
Court, which cites international law and practice in urging it to require full
equality in marriage. The brief can be found at
http://hrw.org/lgbt/pdf/mass_amici_2004.pdf

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