Constitution Trumps All

The following is a post by Globe Columnist, Eileen McNamara; aptly titled "Constitution Trumps All". If you have time, give her a big 'thank you' for shedding some logic on the gay marriage issue. Her email address is: mcnamara@globe.com.

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EILEEN MCNAMARA
Constitution trumps all
By Eileen McNamara, Globe Columnist | July 9, 2006

If we had just ``let the people vote," black children would have been confined to segregated classrooms, wives would have remained the property of their husbands, and slaves the chattel of their masters.

That is worth remembering this week as both sides in the politically divisive issue of gay marriage use everyone from the owner of the New England Patriots to the cardinal-archbishop of Boston to argue for or against the right of same-sex couples to marry in Massachusetts.

In the end, what the state Constitution says matters more than what Bob Kraft or Sean O'Malley think.

That document, written by John Adams to include equal protection guarantees 88 years before the ratification of the 14th Amendment to the US Constitution, requires the recognition of same-sex marriages in the Commonwealth as a matter of equality under the law. As Chief Justice Margaret H. Marshall of the Supreme Judicial Court observed in the 2003 decision that legalized gay marriage, ``The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the federal Constitution; it may demand broader protection for fundamental rights; and is less tolerant of government intrusion into the protected spheres of private life."

That is why, in 1981, the SJC invalidated as unconstitutional a state law banning public funding of medically necessary abortions. To do so, the high court ruled, would treat poor women as a class separate and unequal to their more prosperous neighbors. That discrimination is illegal under the Massachusetts Constitution, the SJC ruled, even though the US Supreme Court had found no such protection for poor women in the federal Constitution.

The state Legislature will meet Wednesday to consider a proposed amendment to the Massachusetts Constitution to outlaw same-sex marriage. The measure needs the votes of at least 50 lawmakers this year and again next year to be included on the ballot in November 2008. Lawmakers should not be cowed by cries of ``let the people vote." Fundamental civil rights are not a matter to be put to popular referendum.

It is not disrespectful to say to those with deeply held religious convictions against homosexuality that the law has a broader obligation. The question before the court in 2003, like the question before the Legislature meeting in Constitutional Convention on Wednesday, is about the civil, not the religious, definition of marriage. The issue is not who shall be blessed, but who shall be licensed.

As Justice John M. Greaney wrote in his concurring opinion in Goodridge v. The Department of Public Health, ``. . . as a matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same-sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families."

For two years now in Massachusetts, same-sex couples have been marrying, rearing children, and contributing to their communities without causing harm to those who find their unions morally objectionable. That some take offense at same-sex marriage is regrettable, not actionable. The social disintegration predicted by many when laws against interracial marriage began to collapse across this country did not materialize either. That does not mean everyone in America is yet comfortable with interracial marriage; it means the law affords them no remedy for their discomfort.

The four Roman Catholic bishops of Massachusetts claim that those who allow the Goodridge decision to stand suffer from ``an exaggerated sense of entitlement." This is an odd perspective from religious leaders who aim to impose their doctrinal beliefs in a matter that is settled constitutional law in this Commonwealth.

Eileen McNamara is a Globe columnist. She can be reached at mcnamara@globe.com.

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