Cote-Whitacre v. Department Of Public Health

• Decision Date: 18 August 2004
• Docket Number: 042656G
• Citation: 2004 MBAR 418
• Parties: Sandra Cote-Whitacre et al.[1] v. Department of Public Health et al.[2]
• Court: Massachusetts Superior Court

2004-MBAR-418

Sandra Cote-Whitacre et al.^[1] v. Department of Public Health et al.^[2]

No. 042656G

Superior Court of Massachusetts

August 18, 2004

As-is Docket Number: 04-2656-G

Venue Suffolk

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ball, J.

Opinion Title: MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

The plaintiffs seek to enjoin the defendants from enforcing a 1913 Massachusetts law, G.L.c. 207, §11, that has the effect of preventing out-of-state gay couples from marrying in Massachusetts. For the reasons set forth below, the plaintiffs' motion is DENIED.

BACKGROUND

The plaintiffs are eight same-sex couples who live outside Massachusetts and who have been denied the right to marry in the Commonwealth by what the plaintiffs term the defendants' selective enforcement of a 1913 discriminatory law, G.L.c. 207, §11. Five of the plaintiff couples have already been issued marriage licenses and had their marriages solemnized; the other three couples were denied marriage licenses pursuant to G.L.c. 207, §11. The plaintiffs, citing Goodridge v. Department of Public Health 440 Mass. 309 (2003), contend that G.L.c. 207, §11 is unconstitutional as applied to same-sex couples because the Massachusetts Supreme Judicial Court has unequivocally declared that, under the liberty and equality provisions of the Massachusetts Constitution, the Commonwealth lacks any rational basis to deny same-sex couples the right to marry on the same terms as opposite-sex couples.

Before the court turns to the merits of the plaintiffs' motion a consideration of the Supreme Judicial Court's decision in Goodridge is instructive. In Goodridge, the court declared 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." Id. at 344. The Goodridge plaintiffs were fourteen individuals from five Massachusetts counties who were denied marriage licenses by town or city clerks. Each of the plaintiff couples attempted to obtain marriage licenses as required under G.L.c. 207, completing Notices of Intention to Marry (pursuant to G.L.c. 207, §20) and presenting these forms together with the required health forms and marriage license fees (pursuant to G.L.c. 207, §19) to the clerks. "In each case, the clerk either refused to accept the notices of intention to marry or denied a marriage license to the couple on the ground that Massachusetts does not recognize same-sex marriage. Because obtaining a marriage license is a necessary prerequisite to civil marriage in Massachusetts, denying marriage licenses to the plaintiffs was tantamount to denying them access to civil marriage itself, with its appurtenant social and legal protections, benefits, and obligations." Id. at 315.

The court stated that G.L.c. 207, the marriage licensing statute, is both a gatekeeping and a public records statute which controls entry into civil marriage. Id. at 317. The gatekeeping provisions of the statute are minimal, for example the statute forbids marriage between individuals within certain degrees of consanguinity, polygamous marriages, or if one party has communicable syphilis. However, the record-keeping provisions of G.L.c. 207 are more extensive. Id. at 317-18. Couples wishing to marry must file standard information forms and a medical certificate in the clerk's office and pay a fee. G.L.c. 207, §§19, 20, 28A. The clerk issues the license and when the marriage is solemnized, the individual authorized to solemnize the marriage adds additional information to the form and returns a copy to the clerk's office, who in turn sends a copy of the information to the registrar. This information becomes a public record. Id. at 318.

Nothing in G.L.c. 207 specifically prohibits marriage between persons of the same sex. However, the definition of "marriage," "[t]he legal union of a man and a woman as husband and wife,"^[3] derives from the common law. Id. at 319. "Far from being ambiguous, the undefined word 'marriage,' as used in G.L.c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners." Id. Further, Sections 1 and 2 of G.L.c. 207 prohibit marriage between a man and certain female relatives and a woman and certain male relatives, "but are silent as to the consanguinity of male-male or female-female marriage applicants. The only reasonable explanation is that the Legislature did not intend that same-sex couples be licensed to marry." Id. The Goodridge Court determined that "G.L.c. 207 may not be construed to permit same-sex couples to marry." Id. at 320. The court then proceeded to determine that the law offends the Massachusetts Constitution's guarantees of equality before the law, and the liberty and due process provisions of the Massachusetts Constitution which secures the plaintiffs' right to marry their chosen partner. Id. at 327-28, citing to Perez v. Sharp, 32 Cal.2d 711, 728 (1948) (holding that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment), and Loving v. Virginia, 388 U.S. 1 (1967) (same). The court concluded that "history must yield to a more fully developed understanding of the invidious quality of discrimination." Id. at 328.

In sum, the majority in Goodridge decided that

[w]e construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage."

Id. at 343-44 (emphasis added). The court added that:

No religious ceremony has ever been required to validate a Massachusetts marriage... In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. See DeMatteo v. DeMatteo, 436 Mass. 18, 31, (2002) ("Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise"); Smith v. Smith, 171 Mass. 404, 409, 50 N.E. 933 (1898) (on marriage, the parties "assume[ ] new relations to each other and to the State"). See also French v. McAnarney, 290 Mass. 544, 546, 195 N.E. 714 (1935). While only the parties can mutually assent to marriage, the terms of the marriageùwho may marry and what obligations, benefits, and liabilities attach to civil marriageùare set by the Commonwealth. Conversely, while only the parties can agree to end the marriage (absent the death of one of them or a marriage void ab initio), the Commonwealth defines the exit terms. See G.L.c. 208.

Id. at 321.

We also reject the argument suggested by the department, and elaborated by some amici, that expanding the institution of civil marriage in Massachusetts to include same-sex couples will lead to interstate conflict. We would not presume to dictate how another State should respond to today's decision. But neither should considerations of comity prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution. The genius of our Federal system is that each State's Constitution has vitality specific to its own traditions, and that, subject to the minimum requirements of the Fourteenth Amendment, each State is free to address difficult issues of individual liberty in the manner its own Constitution demands.

Id. at 340-41 (emphasis added).

In his concurrence, Justice Greaney, referring to the provisions of the law at issue here, stated: "[t]he argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful, is precluded by the provisions of G.L.c. 207, §§11, 12, and 13." Id. at 348, n.4.

Senate Bill No. 2175, an Act Relative to Civil Unions

Following the court's decision in Goodridge, the Massachusetts Senate transmitted the following question to the Supreme Judicial Court:

Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all "benefits, protections, rights and responsibilities" of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?

Opinion of the Justices to the Senate, 440 Mass. 1201, 1202 (2004). The Justices responded that in Goodridge, "the court preserved the marriage licensing statute, but refined the common-law definition of civil marriage to mean 'the voluntary union of two persons as spouses, to the exclusion of all others.' " Id. at 1204, quoting Goodridge, 440 Mass. at 343 (emphasis added). The Justices answered the Senate in the negative, reasoning that "[p]reserving the institution of civil marriage is of course a legislative priority of the highest order, and one to which the Justices accord the General Court the greatest deference... Yet the bill, as we read it, does nothing to 'preserve' the civil marriage law, only its constitutional infirmity." Id. at 1206. "Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or 'preserve' what we stated in Goodridge were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of...