If a Court OKs Gay Marriage, Can a Legislature Overturn It?
Answered by Liz Seaton, senior staff counsel for the Human Rights Campaign. June 6, 2003
Q: Dear Liz,
My partner and I are Massachusetts residents. If the Massachusetts Supreme Judicial Court determines that denying marriage licenses to same-sex couples is unconstitutional, but then a few months later the Legislature amends the state constitution to restrict marriage to one man and one woman, what would happen to those couples who are able to successfully obtain a marriage license in the interim?
Alfredo
A: Dear Alfredo,
That is a very interesting question. What happens if Massachusetts becomes the first state to recognize same-sex marriage, a couple gets married, and then Massachusetts attempts to close the door on same-sex marriage through its state constitution?
One thing I would like to clarify is the process in Massachusetts for amending the constitution. As you know, the Massachusetts Legislature is currently considering legislation that would ban same-sex marriage via a constitutional amendment. However, for it to be adopted, it must pass several steps. First, it takes a vote of both chambers -- meaning the House and Senate -- sitting together as a constitutional assembly during two separate sessions. That would take a few years. Then, there must be a majority vote of the voters, which at the earliest could take place in 2006.
I wish I could answer your question more directly, but here’s what I do know. If the Massachusetts Supreme Judicial Court recognizes a right to same-sex marriage, it is not exactly clear on what day same-sex couples could begin to marry. Once the court rules, we will obviously know more. There are a few procedural issues that likely would delay it a month or more. It is also possible that the court could defer some aspect of the implementation to the state Legislature, and that could take more time.
However, with several years between when the court cases is expected to be decided – which is summer 2003 – and when the people might vote on a ballot question to amend the state constitution – earliest is 2006 – some view it as likely that two or three years’ worth of same-sex marriages might take place.
I do not know, and I do not believe that anyone knows, exactly what would happen if a couple married and then the state enacted a constitutional ban on same-sex marriage. It is probably an understatement to say that whatever state becomes the first state to recognize the right of same-sex couples to marry, it will inspire controversial lawsuits on both sides of the issue – in Massachusetts and elsewhere.
What I do believe is that it is only a matter of time before same-sex couples secure the right to marry in every state in this country, because the inequities in denying the right are clear.