Mass. Marriage Update: Over 4,200 Couples Say "I Do"

November 21, 2004

One year after a historic court ruling that legalized gay marriage in Massachusetts, more than 4,266 same-sex unions have occurred in Massachusetts and people on both sides of the issue are preparing for a renewed effort for a constitutional ban on same-sex marriages.

Last year on this day, a divided state Supreme Judicial Court stunned the nation and ushered in a dramatic social change when it ruled that it was unconstitutional to ban gay couples from the right to marry. The court, by a 4-3 vote, allowed the unions to start May 17, making Massachusetts the first and so far only state to legally allow a man to marry a man and a woman to marry a woman.

The court ruling helped embolden officials in San Francisco, New Paltz, N.Y., and other communities across the country to issue marriage licenses to same-sex couples. Some say the court decision also tilted the presidential election.

The significance of the ruling was most evident locally in Northampton, a longtime refuge for gays.

Northampton City Clerk Wendy A. Mazza reports that 325 gay couples received marriage licenses since May 17, or about 66 percent of all marriage licenses issued by her office through Tuesday and about half the total number of gay unions in the region.

In Provincetown, a vacation haven for gays on Cape Cod, there have been 837 gay marriage licenses issued.

According to a survey of clerks in 20 Western Massachusetts cities and towns, there have been 652 gay marriage licenses issued since May 17.

Women also tend to dominate the numbers of gay marriages. In Northampton, for example, a woman married a woman in 285 of the 325 gay marriages, according to Mazza. Also, all 10 gay couples who tied the knot with licenses issued in West Springfield were women.

Married female couples outnumber their male counterparts by almost 2-1 statewide.

Gay couples said marriage changes their lives because they now are eligible for new benefits such as filing joint state tax returns, family health insurance and inheritance rights.

Marriage also brings a certain permanence that was missing from their partnerships, gay couples said.

We feel different being married, that's for sure, said Nancy B. Whitley, 46, of Northampton who May 31 married Heather P. Whitley, 39. It feels like being on bedrock rather than being on quicksand.

It's being recognized, said James E. Mallek, 54, of Springfield, a retired New York City patrolman who in May married Herbert W. Menzel Jr., 50, a consultant for a life insurance company. We've been together six years and it's very important that we are treated equally. We're not just two guys going out. We're in a committed relationship.

According to raw data provided by the state Department of Public Health, there have been 31,039 marriages performed since January of this year. Of those, 2,749 were for same sex women and 1,517 were for same sex men. The health department spokesperson said that due to a lag in reporting, these figures will probably increase. In 2003 there were 36,225 marriages in the state.

Amherst issued 52 marriage licenses to gay couples, or 32 percent of the total number of marriages.

In other communities, gay marriages are less prevalent. In Westfield, the 16 gay unions are only 9.5 percent of the total number of marriages since May 17. Springfield's 77 gay marriages rank second in the region, but represent only about 8 percent of the city's total marriages since gay marriages started.

The decision by the state's highest court came after seven gay couples, including Heidi Norton and Gina M. Smith, both 39, of Northampton, sued the state in 2001 for being denied marriage licenses. They appealed after a lower court ruled against them. The case went all the way to the U.S. Supreme Court, which rejected a last-minute request to block municipal clerks from issuing marriage licenses. Gov. W. Mitt Romney, who opposes gay marriage, failed in an effort to delay the start of the marriages.

Legal scholars still are arguing about gay marriage. Dwight G. Duncan, a professor at the Southern New England School of Law, who wrote a brief for the Massachusetts Catholic Conference and other groups, said the court ruling was radical and unprecedented because it intruded upon the constitutionally-guaranteed power of the governor and the Legislature to define marriage.

Duncan said the court foisted its values on society. The hubris, the arrogance of the decision is breathtaking, Duncan said.

But Jennifer L. Levi, assistant professor of law at Western New England College in Springfield and co-counsel for the seven couples who won the lawsuit, said the decision was grounded in state constitutional provisions that guarantee liberty and equality for all citizens.

We have a great constitution that protects everybody, she said.

Gay couples in Connecticut, California and New Jersey are using their own constitutions to seek marriage rights in their state courts, Levi said.

Pundits around the country are also arguing about whether the court ruling helped spur some people to vote Nov. 2 for President George W. Bush over his Democratic opponent, U.S. Sen. John F. Kerry, D-Mass.

The court mandate in Massachusetts sparked activists to place constitutional amendments banning gay marriages on the ballots in 11 states. All passed, including Ohio, which Kerry lost by just 135,000 votes, according to a preliminary tally.

Phil Burress, chairman of the Ohio ballot effort, said volunteers registered about 54,000 voters when they gathered signatures to put the marriage ban on the ballot. Burress said that without the ballot question, Kerry would have won Ohio - meaning he would have captured enough electoral votes to beat Bush.

Kerry, in television interviews this week, attributed his loss largely to the war in Iraq and the fear it generated in voters. A president has never lost an election during a war, Kerry said.

The two Western Massachusetts plaintiffs in the suit, Norton and Smith, partners for 14 years, were married in May and are now Heidi and Gina Nortonsmith. The couple soon discovered that marriage can be an advantage. Three days after they exchanged vows, Gina Nortonsmith found out she was about to be laid off from her job, where both she and her spouse were covered by health insurance under domestic partnership provisions.

Federal law allows married workers who are laid off to maintain their family insurance out of their own pockets, but the federal government does not recognize same sex marriage. The insurer, Health New England of Springfield, did, however, and Nortonsmith was able to sustain her coverage.

Nortonsmith said that marriage also improved the couple's dealings with schools, hospitals, banks, and other institutions.

How long will gay marriages be legal in Massachusetts?

That could depend on the fate of a proposed constitutional amendment that could ban the court-ordered ceremonies.

In March, the state Legislature, meeting in a joint session called a constitutional convention, voted 105-92 to approve an amendment that would define marriage as a union of a man and a woman only and create civil unions for gays.

The proposal would go to voters in November 2006 if it's approved again by at least 101 legislators in a new convention during next year or in 2006. Under the rules, there could be debate, but the vote on the amendment in a new convention would be up or down with no opportunity for further changes.

Opponents of gay marriage said they will press hard to send the amendment to voters.

Senate President Robert E. Travaglini, D-Boston, the presiding officer at a constitutional convention, is committed to putting the amendment on an agenda and convening a convention, a spokeswoman said. Travaglini still supports the amendment, his spokeswoman said.

While some speculate that Travaglini could convene the convention and then use a parliamentary maneuver to kill the amendment or postpone a vote, Sen. Stanley C. Rosenberg, D-Amherst, said he expects legislators to vote again on the proposal. Rosenberg, who opposes the amendment, said there's a good chance the amendment will fail to receive at least 101 votes since the state didn't fall into the ocean after six months of gay marriages.

No one knows for sure if voter approval of the amendment would nullify gay marriages that take place before the vote. That issue would likely be settled in the courts if voters approve the amendment, said Kevin D. Batt, a lawyer for some municipal clerks, who along with out-of-state gay couples, are suing to allow gay nonresidents to marry in Massachusetts.

Romney, backed by Attorney General Thomas F. Reilly, used a 1913 state law to prohibit couples from other states from marrying in Massachusetts. The law prevents people from marrying here if their union would be banned in their own state.

A Suffolk Superior Court judge ruled in favor of Romney, but the case is under appeal and could go before the state Supreme Judicial Court, Batt said.

If it does, the high court will have another chance to expand marriage rights.