Developments after Vermont: An Evolving
Jurisprudence and Its Backlash
INDEED, AFTER VERMONT, the process continued. Legal and political developments especially accelerated in 2003 with a decision by the Massachusetts Supreme Judicial Court mandating the recognition of same-sex marriages. This was followed by litigation in other states that resulted in decisions favorable to same-sex marriage advocates, legislative policy change in some states granting rights and recognition to same-sex couples, as well as a continued backlash in other states. Additionally, legal arguments led nonlegal actors to support same-sex marriage, as several local jurisdictions throughout the United States began to grant marriage licenses to same-sex couples early in 2004.
Following on the successful litigation in Vermont, a GLAD-sponsored suit in Massachusetts was filed in April 2001 by seven couples who lived throughout the state.1 A year later, a superior courtjudge denied their claims. Like other courts that dismissed same-sex marriage claims, this court found that a plain reading of the Massachusetts marriage statute left room for only opposite sex marriage and that the history of the law confirmed this reading.2 As for the constitutional claims, the judge refused to find a fundamental right to marry under the Massachusetts Constitution and rejected equality arguments, noting that the Massachusetts Constitution does not contain a clause similar to the “common benefits” clause of the Vermont Constitution. Judge Thomas Connolly also held that procreation was central to marriage; consequently, the legislature could rationally limit it to opposite sex couples.3 Ultimately, the court preferred to keep the issue in the political arena, stating: “While this court understands the reasons for the plaintiff's request to reverse the Commonwealth's centuries-old legal tradition of restricting marriage to opposite-sex couples, their request should be directed to the Legislature, not the courts.”4 No legal argument could have prevailed with a court that saw the issue as a purely legislative one. Like the lower court in Vermont, this judge was unwilling to adjudicate aggressively, or bring in novel arguments, like noting changes in the nature of procreation. The case received an expedited appeal to the Massachusetts Supreme Judicial Court5—a court that has developed a liberal reputation, particularly when it comes to defining the family. In 1999 the court ruled that a lesbian partner was a de facto parent and granted her visitation rights.6
Despite the initial loss for same-sex marriage advocates, same-sex marriage opponents were committed to a process placing a constitutional amendment outlawing same-sex marriage, or any benefits for same-sex couples, on the ballot for voter approval. Conservative activists, through the group Massachusetts Citizens for Marriage, spearheaded the efforts for this “Super DOMA.”7 After a controversial