GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH Supreme Judicial Court of Massachusetts, 2003 798 N.E.2d 941 MARSHALL, C. J. (with whom IRELAND and GREANEY, J. J. Concur) Z … Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, fi- nancial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples. We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors…. “Our obligation is to define the liberty of all, not to mandate our own moral code.” 1 … The plaintiffs are fourteen individuals from five Massachusetts counties. As of April 11, 2001 … Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; … Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five-year-old daughter; … Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight-year-old daughter and Richard’s mother…. The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups. They have employed such legal means as are available to them—for example, joint adoption, powers of attorney, and joint ownership of real property—to secure aspects of their relationships. Each plaintiff attests a desire to marry his or her partner in order to affirm publicly their commitment to each other and to secure the legal protections and benefits afforded to married couples and their children…. The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that “hundreds of statutes” are related to marriage and to marital benefits…. [S]ome of the statutory benefits conferred by the Legislature on those who enter into civil marriage include… : joint Massachusetts income tax filing; tenancy by the entirety (a form of ownership that provides certain protections against creditors and allows for the automatic descent of property to the surviving spouse without probate); extension of the benefit of the homestead protection… to one’s spouse and children; [inheritance rights]… ; entitlement to wages owed to a deceased employee; eligibility to continue certain businesses of a deceased spouse; the right to share the medical policy of one’s spouse; … access to veterans’ spousal benefits and preferences; financial protections for spouses of … fire fighters, police of- ficers, and prosecutors … killed in the performance of duty; [property rights upon divorce or separation]; … the right to bring claims for wrongful death and loss of consortium; … the presumptions of legitimacy and parentage of children born to a married couple; … evidentiary rights, such as the prohibition against spouses testifying against one another about their private conversations; … qualification for bereavement or medical leave to care for [relatives]… ; an automatic “family member” preference to make medical decisions for an incompetent or disabled spouse; … and the right to interment in the lot or tomb owned by one’s deceased spouse…. It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a “civil right.” … Without the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.” … For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the … United States Supreme Court … held that a statutory bar to interracial marriage violated the Fourteenth Amendment, Loving v. Virginia, (1967)…. The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from” unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good. Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights…. Under both the equality and liberty guarantees, regulatory authority must, at very least, serve “a legitimate purpose in a rational way.”… Any law failing to satisfy the basic standards of rationality is void. … The [lower court held] that “the state’s interest in regulating marriage is based on the traditional concept that marriage’s primary purpose is procreation.” This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family…. Fertility is not a condition of marriage, nor is it grounds for divorce…. There is … no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the “optimal” child rearing unit…. People in same-sex couples may be “excellent” parents. These couples have children for the reasons others do— to love them, to care for them, to nurture them…. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of “a stable family structure in which children will be reared, educated, and socialized.” The department [also argues that] broadening civil marriage to include same-sex couples will trivialize or destroy the institution of marriage as it has historically been fashioned. Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But it does not disturb the fundamental value of marriage in our society. Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage…. The history of constitutional law “is the story of the extension of constitutional rights and protections to people once ignored or excluded.”… As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm. The common law was exceptionally harsh toward women who became wives: a woman’s legal identity all but evaporated into that of her husband…. Alarms about the imminent erosion of the “natural” order of marriage were sounded over … the expansion of the rights of married women, and the introduction of “no-fault” divorce. Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution. The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. “The Constitution cannot control such prejudices but neither can it tolerate them….” Limiting the protections, bene- fits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution. [Held: the Department of Health policy denying marriage licenses to same-sex couples violates the Massachusetts Constitution.] SPINA, J. (dissenting, with whom Sosman and Cordy, JJ. , join). Z … The power to regulate marriage lies with the Legislature, not with the judiciary…. Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent…. CORDY, J. (dissenting, with whom Spina and Sosman, JJ. , join). Z …Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State’s police power. The marriage statute … does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. The plaintiffs’ right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated…. While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not. No matter how personal or intimate a decision to marry someone of the same sex might be, the right to make it is not guaranteed by the right of personal autonomy … [nor by the] right to freedom of association…. Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. … The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic…. It is undeniably true that dramatic historical shifts in our cultural, political, and economic landscape have altered some of our traditional notions about marriage, including the interpersonal dynamics within it, the range of responsibilities required of it as an institution, and the legal environment in which it exists. Nevertheless, the institution of marriage remains the principal weave of our social fabric…. A family defined by heterosexual marriage continues to be the most prevalent social structure into which the vast majority of children are born, nurtured, and prepared for productive participation in civil society. 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…. … [T]he Legislature could conceivably conclude that declining to recognize samesex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved…. As long as marriage is limited to opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. If society proceeds similarly to recognize marriages between same-sex couples who cannot procreate, it could be perceived as an abandonment of this claim, and might result in the mistaken view that civil marriage has little to do with procreation: just as the potential of procreation would not be necessary for a marriage to be valid, marriage would not be necessary for optimal procreation and child rearing to occur. In essence, the Legislature could conclude that the consequence of such a policy shift would be a diminution in society’s ability to steer the acts of procreation and child rearing into their most optimal setting….[I dissent.] QUESTIONS 1. On what basis does the majority strike down the Massachusetts marriage license law? How does the dissent respond? 2. Internet Assignment: The dissent mentions “empirical questions” about the impact of samesex marriage on children. What can you find out about the impact—positive or negative— on those who have been raised by same-sex parents? 3. Internet Assignment: Find Loving v. Virginia, the 1967 Supreme Court case that held that statutes barring marriage across racial lines were unconstitutional. Did the Court employ any of the same arguments made by the majority in Goodridge? 4. In your view, what is marrige really about? An intimate relationship? An economic partnership? A way to raise children? An institution that allows the state to “privatize dependency” by making spouses legally responsible for caring for each other and their children? Which judge in Goodridge comes closest to your own vision? To what extent does your vision affect how you feel about same sex-marriage? 5. Do you think the majority in Goodridge would have a problem with the following: (a) A statute declaring divorce illegal? (b) A law lowering the age for legitimate marriage to 11? 6. What impact would wide-scale recognition of same-sex marriage likely have on business? 7. Internet Assignment: In 2002, the Netherlands became the first country in the world to open up civil marriage to same-sex couples. Since then, Belgium, Canada, Denmark, Sweden, Iceland, Finland, France, Germany, and South Africa have allowed marriage-like partnerships. Find out how your state deals with same-sex marriages or partnerships.