Sentenza della Corte Suprema del Massachusetts (USA) che ha esteso il matrimonio alle coppie dello stesso sesso

MARSHALL, C.J.

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, financial, 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. Neither view answers the question before us. Our concern is with
the Massachusetts Constitution as a charter of governance for every person properly
within its reach. "Our obligation is to define the liberty of all, not
to mandate our own moral code." Lawrence v. Texas, 123 S.Ct.
2472, 2480 (2003) (Lawrence ), quoting Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850 (1992).

Whether the Commonwealth may use its formidable regulatory authority to bar
same-sex couples from civil marriage is a question not previously addressed
by a Massachusetts appellate court. [FN3] It is a question the United States
Supreme Court left open as a matter of Federal law in Lawrence, supra at
2484, where it was not an issue. There, the Court affirmed that the core
concept of common human dignity protected by the Fourteenth Amendment to
the United States Constitution precludes government intrusion into the deeply
personal realms of consensual adult expressions of intimacy and one’s choice
of an intimate partner. The Court also reaffirmed the central role that decisions
whether to marry or have children bear in shaping one’s identity. Id. at
2481. 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 it is less tolerant of government
intrusion into the protected spheres of private life.

Barred access to the protections, benefits, and obligations of civil marriage, a
person who enters into an intimate, exclusive union with another of the same
sex is arbitrarily deprived of membership in one of our community’s most
rewarding and cherished institutions. That exclusion is incompatible with
the constitutional principles of respect for individual autonomy and equality
under law.

I
The plaintiffs are fourteen individuals from five Massachusetts counties.
As of April 11, 2001, the date they filed their complaint, the plaintiffs
Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had
been in a committed relationship for thirty years; the plaintiffs Maureen
Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been
in a committed relationship for twenty years and lived with their twelve
year old daughter; the plaintiffs 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; the plaintiffs
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 Heidi
Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been
in a committed relationship for eleven years and lived
with their two sons, ages five years and one year; the plaintiffs Michael
Horgan, forty-one years old, and David Balmelli, forty-one years old, had
been in a committed relationship for seven years; and the plaintiffs David
Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had
been in a committed relationship for four years and had cared for David’s
mother in their home after a serious illness until she died.

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 Department of Public Health (department) is charged by statute with safeguarding
public health. See G.L. c. 17. Among its responsibilities, the department
oversees the registry of vital records and statistics (registry), which "enforce[s]
all laws" relative to the issuance of marriage licenses
and the keeping of marriage records, see G.L. c. 17, § 4, and which
promulgates policies and procedures for the issuance of marriage licenses
by city and town clerks and registers. See, e.g., G.L. c. 207, §§ 20,
28A, and 37. The registry is headed by a registrar of vital records and statistics
(registrar), appointed by the Commissioner of Public Health (commissioner)
with the approval of the public health council and supervised by the commissioner.
See G.L. c. 17, § 4.

In March and April, 2001, each of the plaintiff couples attempted to obtain
a marriage license from a city or town clerk’s office. As required under
G.L. c. 207, they completed notices of intention to marry on forms provided
by the registry, see G.L. c. 207, § 20, and presented these forms to
a Massachusetts town or city clerk, together with the required health forms
and marriage license fees. See G.L. c. 207, § 19. In each case, the
clerk either refused to accept the notice of intention to marry or denied
a marriage license to the couple on the ground that Massachusetts does not
recognize same- sex marriage. [FN4], [FN5] 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. [FN6]

On April 11, 2001, the plaintiffs filed suit in the Superior Court against
the department and the commissioner seeking a judgment that "the exclusion
of the [p]laintiff couples and other qualified same-sex couples from access
to marriage licenses, and the legal and social status of civil marriage,
as well as the protections, benefits and obligations of marriage, violates
Massachusetts law." See G.L. c. 231A. The plaintiffs alleged violation
of the laws of the Commonwealth, including but not limited to their rights
under arts. 1, 6, 7, 10, 12, and 16, and Part II, c. 1, § 1, art. 4,
of the Massachusetts Constitution. [FN7], [FN8]

The department, represented by the Attorney General, admitted to a policy
and practice of denying marriage licenses to same-sex couples. It denied
that its actions violated any law or that the plaintiffs were entitled to
relief. The parties filed cross motions for summary judgment.

A Superior Court judge ruled for the department. In a memorandum of decision
and order dated May 7, 2002, he dismissed the plaintiffs’ claim that the
marriage statutes should be construed to permit marriage between persons
of the same sex, holding that the plain wording of G.L. c. 207, as well as
the wording of other marriage statutes, precluded that interpretation. Turning
to the constitutional claims, he held that the marriage
exclusion does not offend the liberty, freedom, equality, or due process
provisions of the Massachusetts Constitution, and that the Massachusetts
Declaration of Rights does not guarantee "the fundamental right to marry
a person of the same sex." He concluded that prohibiting same-sex marriage
rationally furthers the Legislature’s legitimate interest in safeguarding
the "primary purpose" of marriage, "procreation." The
Legislature may rationally limit marriage to opposite-sex couples, he concluded,
because those couples are "theoretically … capable of procreation," they
do not rely on "inherently more cumbersome" noncoital means of
reproduction, and they are more likely than same-sex couples to have children,
or more children.

After the complaint was dismissed and summary judgment entered for the defendants,
the plaintiffs appealed. Both parties requested direct appellate review,
which we granted.

II
Although the plaintiffs refer in passing to "the marriage statutes," they
focus, quite properly, on G.L. c. 207, the marriage licensing statute, which
controls entry into civil marriage. As a preliminary matter, we summarize
the provisions of that law.

General Laws c. 207 is both a gatekeeping and a public records statute. It
sets minimum qualifications for obtaining a marriage license and directs
city and town clerks, the registrar, and the department to keep and maintain
certain "vital records" of civil marriages. The gatekeeping provisions
of G.L. c. 207 are minimal. They forbid marriage of individuals within certain
degrees of consanguinity, §§ 1 and 2, and polygamous marriages.
See G.L. c. 207, § 4. See also G.L. c. 207, § 8 (marriages solemnized
in violation of §§ 1, 2, and 4, are void ab initio). They prohibit
marriage if one of the parties has communicable syphilis, see G.L. c. 207, § 28A,
and restrict the circumstances in which a person under eighteen years of
age may marry. See G.L. c. 207, §§ 7, 25, and 27. The statute requires
that civil marriage be solemnized only by those so authorized. See G.L. c.
207, §§ 38-40.

The record-keeping provisions of G.L. c. 207 are more extensive. Marriage
applicants file standard information forms and a medical certificate in any
Massachusetts city or town clerk’s office and tender a filing fee. G.L. c.
207, §§ 19-20, 28A. The clerk issues the marriage license, and
when the marriage is solemnized, the individual authorized to solemnize the
marriage adds additional information to the form and
returns it (or a copy) to the clerk’s office. G.L. c. 207, §§ 28,
30, 38-40 (this completed form is commonly known as the "marriage certificate").
The clerk sends a copy of the information to the registrar, and that information
becomes a public record. See G.L. c. 17, § 4; G.L. c. 66, § 10.
[FN9], [FN10]

In short, for all the joy and solemnity that normally attend a marriage,
G.L. c. 207, governing entrance to marriage, is a licensing law. The plaintiffs
argue that because nothing in that licensing law specifically prohibits marriages
between persons of the same sex, we may interpret the statute to permit "qualified
same sex couples" to obtain marriage licenses, thereby avoiding the
question whether the law is constitutional. See School Comm. of Greenfield
v. Greenfield Educ. Ass’n, 385 Mass. 70, 79 (1982), and cases cited.
This claim lacks merit.

We interpret statutes to carry out the Legislature’s intent, determined by
the words of a statute interpreted according to "the ordinary and approved
usage of the language." Hanlon v. Rollins, 286 Mass. 444, 447
(1934). The everyday meaning of "marriage" is "[t]he legal
union of a man and woman as husband and wife," Black’s Law Dictionary
986 (7th ed.1999), and the plaintiffs do not argue that the term "marriage" has
ever had a different meaning under Massachusetts law.
See, e.g., Milford v. Worcester, 7 Mass. 48, 52 (1810) (marriage "is
an engagement, by which a single man and a single woman, of sufficient discretion,
take each other for husband and wife"). This definition of marriage,
as both the department and the Superior Court judge point out, derives from
the common law. See Commonwealth v. Knowlton, 2 Mass. 530, 535 (1807)
(Massachusetts common law derives from English common law except as otherwise
altered by Massachusetts statutes and Constitution). See also Commonwealth
v. Lane, 113 Mass. 458, 462-463 (1873) ("when the statutes are silent,
questions of the validity of marriages are to be determined by the jus gentium,
the common law of nations"); C.P. Kindregan, Jr., & M.L. Inker, Family
Law and Practice § 1.2 (3d ed.2002). 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.

The intended scope of G.L. c. 207 is also evident in its consanguinity provisions.
See Chandler v. County Comm’rs of Nantucket County, 437 Mass. 430,
435 (2002) (statute’s various provisions may offer insight into legislative
intent). Sections 1 and 2 of G.L. c. 207 prohibit marriages 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. See G.L. c. 207, §§ 1-2. The only reasonable explanation
is that the Legislature did not intend that same-sex couples be licensed
to marry. We conclude, as did the judge, that G.L. c. 207 may not be construed
to permit same-sex couples to marry. [FN11]

III
A
The larger question is whether, as the department claims, government action
that bars same-sex couples from civil marriage constitutes a legitimate exercise
of the State’s authority to regulate conduct, or whether, as the plaintiffs
claim, this categorical marriage exclusion violates the Massachusetts Constitution.
We have recognized the long-standing statutory understanding, derived from
the common law, that "marriage" means the lawful union of a woman
and a man. But that history cannot and does not foreclose the constitutional
question.

The plaintiffs’ claim that the marriage restriction violates the Massachusetts
Constitution can be analyzed in two ways. Does it offend the Constitution’s
guarantees of equality before the law? Or do the liberty and due process provisions
of the Massachusetts Constitution secure the plaintiffs’ right to marry their
chosen partner? In matters implicating marriage, family life, and the upbringing
of children, the two constitutional concepts frequently overlap, as they
do here. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996)
(noting convergence of due process and equal protection principles in cases
concerning parent-child relationships); Perez v. Sharp, 32 Cal.2d
711, 728 (1948) (analyzing statutory ban on interracial marriage as equal
protection violation concerning regulation of fundamental right). See also Lawrence,
supra at 2482 ("Equality of treatment and the due process right
to demand respect for conduct protected by the substantive guarantee of liberty
are linked in important respects, and a decision on the latter point advances
both interests"); Bolling v. Sharpe, 347 U.S. 497 (1954) (racial
segregation in District of Columbia public schools violates the due process
clause of the Fifth Amendment to the United States Constitution), decided
the same day as Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954)
(holding that segregation of public schools in the States violates the equal
protection clause of the Fourteenth Amendment). Much of what we say concerning
one standard applies to the other.

We begin by considering the nature of civil marriage itself. Simply put,
the government creates civil marriage. In Massachusetts, civil marriage is,
and since pre-Colonial days has been, precisely what
its name implies: a wholly secular institution. See Commonwealth v. Munson, 127
Mass. 459, 460-466 (1879) (noting that "[i]n Massachusetts, from very
early times, the requisites of a valid marriage have been regulated by statutes
of the Colony, Province, and Commonwealth," and surveying marriage statutes
from 1639 through 1834). No religious ceremony has ever been required to
validate a Massachusetts marriage. Id.

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 (1898) (on marriage, the parties "assume[
] new relations to each other and to the State"). See also French
v. McAnarney, 290 Mass. 544, 546 (1935). While only the parties can mutually
assent to marriage, the terms of the marriage–who may marry and what obligations,
benefits, and liabilities attach to civil marriage–are 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.

Civil marriage is created and regulated through
exercise of the police power. See Commonwealth v. Stowell, 389
Mass. 171, 175 (1983) (regulation of marriage is properly within the
scope of the police power). "Police power" (now more commonly
termed the State’s regulatory authority) is an old-fashioned term for
the Commonwealth’s lawmaking authority, as bounded by the liberty and
equality guarantees of the Massachusetts Constitution and its express
delegation of power from the people to their government. In broad terms,
it is the Legislature’s power to enact rules to regulate conduct, to
the extent that such laws are "necessary to secure the health, safety,
good order, comfort, or general welfare of the community" (citations
omitted). Opinion of the Justices, 341 Mass. 760, 785 (1960).
[FN12] See Commonwealth v. Alger, 7 Cush. 53, 85 (1851).

Without question, civil marriage enhances the "welfare of the community." It
is a "social institution of the highest importance." French
v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging
stable relationships over transient ones. It is central to the way the Commonwealth
identifies individuals, provides for the orderly distribution of property,
ensures that children and adults are cared for and supported whenever possible
from private rather than public funds, and tracks important epidemiological
and demographic data.

Marriage also bestows enormous private and social advantages on those who
choose to marry. Civil marriage is at once a deeply personal commitment to
another human being and a highly public celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family. "It is an association
that promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects." Griswold
v. Connecticut, 381 U.S. 479, 486 (1965). Because it fulfils yearnings
for security, safe haven, and connection that express our common humanity,
civil marriage is an esteemed institution, and the decision whether and whom
to marry is among life’s momentous acts of self-definition.

Tangible as well as intangible benefits flow from marriage. The marriage
license grants valuable property rights to those who meet the entry requirements,
and who agree to what might otherwise be a burdensome degree of government
regulation of their activities. [FN13] See Leduc v. Commonwealth, 421
Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996) ( "The historical
aim of licensure generally is preservation of public health, safety, and
welfare by extending the public trust only to those with proven qualifications").
The Legislature has conferred on "each party [in a civil marriage] substantial
rights concerning the assets of the other which unmarried
cohabitants do not have." Wilcox v. Trautz, 427 Mass. 326, 334
(1998). See Collins v. Guggenheim, 417 Mass. 615, 618 (1994) (rejecting
claim for equitable distribution of property where plaintiff cohabited with
but did not marry defendant); Feliciano v. Rosemar Silver Co., 401
Mass. 141, 142 (1987) (government interest in promoting marriage would be "subverted" by
recognition of "a right to recover for loss of consortium by a person
who has not accepted the correlative responsibilities of marriage"); Davis
v. Misiano, 373 Mass. 261, 263 (1977) (unmarried partners not entitled
to rights of separate support or alimony). See generally Attorney Gen. v. Desilets, 418
Mass. 316, 327-328 & nn. 10, 11 (1994).

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. With no
attempt to be comprehensive, we note that some of the statutory benefits
conferred by the Legislature on those who enter into civil marriage include,
as to property: joint Massachusetts income tax filing (G.L. c. 62C, § 6);
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) (G.L. c. 184, § 7); extension of the
benefit of the homestead protection (securing up to $300,000 in equity from creditors)
to one’s spouse and children (G.L. c. 188, § 1); automatic rights to
inherit the property of a deceased spouse who does not leave a will (G.L.
c. 190, § 1); the rights of elective share and of dower (which allow
surviving spouses certain property rights where the decedent spouse has not
made adequate provision for the survivor in a will) (G.L. c. 191, § 15,
and G.L. c. 189); entitlement to wages owed to a deceased employee (G.L.
c. 149, § 178A [general] and G.L. c. 149, § 178C [public employees]
); eligibility to continue certain businesses of a deceased spouse (e.g.,
G.L. c. 112, § 53 [dentist] ); the right to share the medical policy
of one’s spouse (e.g., G.L. c. 175, § 108, Second [a ] [3] [defining
an insured’s "dependent" to include one’s spouse), see Connors
v. Boston, 430 Mass. 31, 43 (1999) [domestic partners of city employees
not included within the term "dependent" as used in G.L. c. 32B, § 2]
); thirty-nine week continuation of health coverage for the spouse of a person
who is laid off or dies (e.g., G.L. c. 175, § 110G); preferential options
under the Commonwealth’s pension system (see G.L. c. 32, § 12[2] ["Joint
and Last Survivor Allowance"] ); preferential benefits in the Commonwealth’s
medical program, MassHealth (e.g., 130 Code Mass. Regs. § 515.012[A]
prohibiting placing a lien on long-term care patient’s former home if spouse
still lives there); access to veterans’ spousal benefits and preferences
(e.g., G.L. c. 115, § 1 [defining "dependents"] and G.L. c.
31, § 26 [State employment] and § 28 [municipal employees]
); financial protections for spouses of certain Commonwealth employees (fire
fighters, police officers, prosecutors, among others) killed in the performance
of duty (e.g., G.L. c. 32, §§ 100-103); the equitable division
of marital property on divorce (G.L. c. 208, § 34); temporary and permanent
alimony rights (G.L. c. 208, §§ 17 and 34); the right to separate
support on separation of the parties that does not result in divorce (G.L.
c. 209, § 32); and the right to bring claims for wrongful death and
loss of consortium, and for funeral and burial expenses and punitive damages
resulting from tort actions (G.L. c. 229, §§ 1 and 2; G.L. c. 228, § 1.
See Feliciano v. Rosemar Silver Co., supra ).

Exclusive marital benefits that are not directly tied to property rights
include the presumptions of legitimacy and parentage of children born to
a married couple (G.L. c. 209C, § 6, and G.L. c. 46, § 4B); and
evidentiary rights, such as the prohibition against spouses testifying against
one another about their private conversations, applicable in both civil and
criminal cases (G.L. c. 233, § 20). Other statutory benefits of a personal
nature available only to married individuals include qualification for bereavement
or medical leave to care for individuals related by blood or marriage (G.L.
c. 149, § 52D); an automatic "family member" preference to
make medical decisions for an incompetent or disabled spouse who does not
have a contrary health care proxy, see Shine v. Vega, 429
Mass. 456, 466 (1999); the application of predictable rules of child custody,
visitation, support, and removal out-of-State when married parents divorce
(e.g., G.L. c. 208, § 19 [temporary custody], § 20 [temporary support], § 28
[custody and support on judgment of divorce], § 30 [removal from Commonwealth],
and § 31 [shared custody plan]; priority rights to administer the estate
of a deceased spouse who dies without a will, and requirement that surviving
spouse must consent to the appointment of any other person as administrator
(G.L. c. 38, § 13 [disposition of body], and G.L. c. 113, § 8 [anatomical
gifts] ); and the right to interment in the lot or tomb owned by one’s deceased
spouse (G.L. c. 114, §§ 29-33).

Where a married couple has children, their children are also directly or
indirectly, but no less auspiciously, the recipients of the special legal
and economic protections obtained by civil marriage. Notwithstanding the
Commonwealth’s strong public policy to abolish legal distinctions between
marital and nonmarital children in providing for the support and care of
minors, see Department of Revenue v. Mason M., 439 Mass. 665 (2003); Woodward
v. Commissioner of Social Sec., 435 Mass. 536, 546 (2002), the fact remains
that marital children reap a measure of family stability and economic security
based on their parents’ legally privileged status that is largely inaccessible,
or not as readily accessible, to nonmarital children. Some of these benefits
are social, such as the enhanced approval that still attends the status of
being a marital child. Others are material, such as the greater ease of access
to family-based State and Federal benefits that attend the presumptions of
one’s parentage.

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." See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967)
("Marriage is one of the ‘basic civil rights of man,’ fundamental to
our very existence and survival"), quoting Skinner v. Oklahoma, 316
U.S. 535, 541 (1942); Milford v. Worcester, 7 Mass. 48, 56 (1810)
(referring to "civil rights incident to marriages"). See also Baehr
v. Lewin, 74 Haw. 530, 561 (1993) (identifying marriage as a "civil
right[ ]"); Baker v. State, 170 Vt. 194, 242 (1999) (Johnson,
J., concurring in part and dissenting in part) (same). The United States
Supreme Court has described the right to marry as "of fundamental importance
for all individuals" and as "part of the fundamental ‘right of
privacy’ implicit in the Fourteenth Amendment’s Due Process Clause." Zablocki
v. Redhail, 434 U.S. 374, 384 (1978). See Loving v. Virginia, supra ("The
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free
men"). [FN14]

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." Baker v. State, supra at 229. Because civil
marriage is central to the lives of individuals and the welfare of the community,
our laws assiduously protect the individual’s right to marry against undue
government incursion. Laws may not "interfere directly and substantially
with the right to marry." Zablocki v. Redhail, supra at 387.
See Perez v. Sharp, 32 Cal.2d 711, 714 (1948) ("There can be
no prohibition of marriage except for an important social objective and reasonable
means"). [FN15]

Unquestionably, the regulatory power of the Commonwealth over civil marriage
is broad, as is the Commonwealth’s discretion to award public benefits. See Commonwealth
v. Stowell, 389 Mass. 171, 175 (1983) (marriage); Moe v. Secretary
of Admin. & Fin., 382 Mass. 629, 652 (1981) (Medicaid benefits). Individuals
who have the choice to marry each other and nevertheless choose not to may
properly be denied the legal benefits of marriage. See Wilcox v. Trautz, 427
Mass. 326, 334 (1998); Collins v. Guggenheim, 417 Mass. 615, 618 (1994); Feliciano
v. Rosemar Silver Co., 401 Mass. 141, 142 (1987). But
that same logic cannot hold for a qualified individual who would marry if
she or he only could.

B
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 Supreme Court of California held in 1948 that
a legislative prohibition against interracial marriage violated the due process
and equality guarantees of the Fourteenth Amendment, Perez v. Sharp, 32
Cal.2d 711, 728 (1948), or when, nineteen years later, the United States
Supreme Court also held that a statutory bar to interracial marriage violated
the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1 (1967). [FN16]
As both Perez and Loving make clear, the right to marry means
little if it does not include the right to marry the person of one’s choice,
subject to appropriate government restrictions in the interests of public
health, safety, and welfare. See Perez v. Sharp, supra at 717 ("the
essence of the right to marry is freedom to join in marriage with the person
of one’s choice"). See also Loving v. Virginia, supra at 12.
In this case, as in Perez and Loving, a statute deprives individuals
of access to an institution of fundamental legal, personal, and social significance–the institution
of marriage–because of a single trait: skin color in Perez and Loving, sexual
orientation here. As it did in Perez and Loving, history must
yield to a more fully developed understanding of the invidious quality of
the discrimination. [FN17]

The Massachusetts Constitution protects matters of personal liberty against
government incursion as zealously, and often more so, than does the Federal
Constitution, even where both Constitutions employ essentially the same language.
See Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424
Mass. 586, 590 (1997); Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363
Mass. 409, 416 (1973). That the Massachusetts Constitution is in some instances
more protective of individual liberty interests than is the Federal Constitution
is not surprising. Fundamental to the vigor of our Federal system of government
is that "state courts are absolutely free to interpret state constitutional
provisions to accord greater protection to individual rights than do similar
provisions of the United States Constitution." Arizona v. Evans, 514
U.S. 1, 8 (1995). [FN18]

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. See Bachrach
v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli
v. Board of Educ., 358 Mass. 753, 759 (1971). 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. See, e.g., Lawrence, supra at 2481; Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Zablocki
v. Redhail, 434 U.S. 374, 384 (1978); Roe v. Wade, 410 U.S. 113,
152-153 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Loving
v. Virginia, supra. And central to personal freedom and security is the
assurance that the laws will apply equally to persons in similar situations. "Absolute
equality before the law is a fundamental principle of our own Constitution." Opinion
of the Justices, 211 Mass. 618, 619 (1912). The liberty interest in choosing
whether and whom to marry would be hollow if the Commonwealth could, without
sufficient justification, foreclose an individual from freely choosing the
person with whom to share an exclusive commitment in the unique institution
of civil marriage.

The Massachusetts Constitution requires, at a minimum, that the exercise
of the State’s regulatory authority not be "arbitrary or capricious." Commonwealth
v. Henry’s Drywall Co., 366 Mass. 539, 542 (1974). [FN19] Under both
the equality and liberty guarantees, regulatory authority
must, at very least, serve "a legitimate purpose in a rational way";
a statute must "bear a reasonable relation to a permissible legislative
objective." Rushworth v. Registrar of Motor Vehicles, 413 Mass.
265, 270 (1992). See, e.g., Massachusetts Fed’n of Teachers v. Board of
Educ., 436 Mass. 763, 778 (2002) (equal protection); Coffee-Rich,
Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 422 (1965)
(due process). Any law failing to satisfy the basic standards of rationality
is void.

The plaintiffs challenge the marriage statute on both equal protection and
due process grounds. With respect to each such claim, we must first determine
the appropriate standard of review. Where a statute implicates a fundamental
right or uses a suspect classification, we employ "strict judicial scrutiny." Lowell
v. Kowalski, 380 Mass. 663, 666 (1980). For all other statutes, we employ
the " ‘rational basis’ test." English v. New England Med. Ctr., 405
Mass. 423, 428 (1989). For due process claims, rational basis analysis requires
that statutes "bear[ ] a real and substantial relation to the public
health, safety, morals, or some other phase of the general welfare." Coffee-Rich,
Inc. v. Commissioner of Pub. Health, supra, quoting Sperry & Hutchinson
Co. v. Director of the Div. on the Necessaries of Life, 307 Mass.
408, 418 (1940). For equal protection challenges, the rational basis test
requires that "an impartial lawmaker could logically believe that the
classification would serve a legitimate public purpose that transcends the
harm to the members of the disadvantaged class." English v. New England
Med. Ctr., supra at 429, quoting Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring). [FN20]

The department argues that no fundamental right or "suspect" class
is at issue here, [FN21] and rational basis is the appropriate standard of
review. For the reasons we explain below, we conclude that the marriage ban
does not meet the rational basis test for either due process or equal protection.
Because the statute does not survive rational basis review, we do not consider
the plaintiffs’ arguments that this case merits strict judicial scrutiny.

The department posits three legislative rationales for prohibiting same-sex
couples from marrying: (1) providing a "favorable setting for procreation";
(2) ensuring the optimal setting for child rearing, which the department
defines as "a two-parent family with one parent of each sex"; and
(3) preserving scarce State and private financial resources. We consider
each in turn.

The judge in the Superior Court endorsed the first rationale, holding 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. General Laws c. 207 contains no requirement that the
applicants for a marriage license attest to their ability or intention to
conceive children by coitus. Fertility is not a condition of marriage, nor
is it grounds for divorce. People who have never consummated their marriage,
and never plan to, may be and stay married. See Franklin v. Franklin, 154
Mass. 515, 516 (1891) ("The consummation of a marriage by coition is
not necessary to its validity"). [FN22] People who cannot stir from
their deathbed may marry. See G.L. c. 207, § 28A. While it is certainly
true that many, perhaps most, married couples have children together (assisted
or unassisted), it is the exclusive and permanent commitment of the marriage
partners to one another, not the begetting of children, that is the sine
qua non of civil marriage. [FN23]

The department’s first stated rationale, equating
marriage with unassisted heterosexual procreation, shades imperceptibly
into its second: that confining marriage to opposite-sex couples ensures
that children are raised in the "optimal" setting. Protecting
the welfare of children is a paramount State policy. Restricting marriage
to opposite-sex couples, however, cannot plausibly further this policy. "The
demographic changes of the past century make it difficult to speak of
an average American family. The composition of families varies greatly
from household to household." Troxel v. Granville, 530 U.S.
57, 63 (2000). Massachusetts has responded supportively to "the
changing realities of the American family," id. at 64, and
has moved vigorously to strengthen the modern family in its many variations.
See, e.g., G.L. c. 209C (paternity statute); G.L. c. 119, § 39D
(grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649
(2002), cert. denied, 537 U.S. 1189 (2003) (same); E.N.O. v. L.M.M., 429
Mass. 824, cert. denied, 528 U.S. 1005 (1999) (de facto parent); Youmans
v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416
Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the
common-law power of the State to provide varying levels of protection
to children based on the circumstances of birth. See G.L. c. 209C (paternity
statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) ("Ours
is an era in which logic and compassion have impelled the law toward
unburdening children from the stigma and the disadvantages
heretofore attendant upon the status of illegitimacy"). The "best
interests of the child" standard does not turn on a parent’s sexual
orientation or marital status. See e.g., Doe v. Doe, 16 Mass.App.Ct.
499, 503 (1983) (parent’s sexual orientation insufficient ground to deny
custody of child in divorce action). See also E.N.O. v. L.M.M.,
supra at 829-830 (best interests of child determined by considering
child’s relationship with biological and de facto same-sex parents); Silvia
v. Silvia, 9 Mass.App.Ct. 339, 341 & n. 3 (1980) (collecting support
and custody statutes containing no gender distinction).

The department has offered no evidence that forbidding marriage to people
of the same sex will increase the number of couples choosing to enter into
opposite-sex marriages in order to have and raise children. There is thus
no rational relationship between the marriage statute and the Commonwealth’s
proffered goal of protecting the "optimal" child rearing unit.
Moreover, the department readily concedes that people in same-sex couples
may be "excellent" parents. These couples (including four of the
plaintiff couples) have children for the reasons others do–to love them,
to care for them, to nurture them. But the task of child rearing for same-sex
couples is made infinitely harder by their status as outliers to the marriage
laws. While establishing the parentage of children as soon as possible is
crucial to the safety and welfare of children, see Culliton
v. Beth Israel Deaconness Med. Ctr., 435 Mass. 285, 292 (2001), same-sex
couples must undergo the sometimes lengthy and intrusive process of second-parent
adoption to establish their joint parentage. While the enhanced income provided
by marital benefits is an important source of security and stability for
married couples and their children, those benefits are denied to families
headed by same-sex couples. See, e.g., note 6, supra. While the laws
of divorce provide clear and reasonably predictable guidelines for child
support, child custody, and property division on dissolution of a marriage,
same-sex couples who dissolve their relationships find themselves and their
children in the highly unpredictable terrain of equity jurisdiction. See E.N.O.
v. L.M.M., supra. Given the wide range of public benefits reserved only
for married couples, we do not credit the department’s contention that the
absence of access to civil marriage amounts to little more than an inconvenience
to same-sex couples and their children. 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." Post at
(Cordy, J., dissenting). [FN26]

No one disputes that the plaintiff couples are families, that many are parents, and
that the children they are raising, like all children, need and should have
the fullest opportunity to grow up in a secure, protected family unit. Similarly,
no one disputes that, under the rubric of marriage, the State provides a
cornucopia of substantial benefits to married parents and their children.
The preferential treatment of civil marriage reflects the Legislature’s conclusion
that marriage "is the foremost setting for the education and socialization
of children" precisely because it "encourages parents to remain
committed to each other and to their children as they grow." Post at
(Cordy, J., dissenting).

In this case, we are confronted with an entire, sizeable class of parents
raising children who have absolutely no access to civil marriage and its
protections because they are forbidden from procuring a marriage license.
It cannot be rational under our laws, and indeed it is not permitted, to
penalize children by depriving them of State benefits because the State disapproves
of their parents’ sexual orientation.

The third rationale advanced by the department is that limiting marriage
to opposite-sex couples furthers the Legislature’s interest in conserving
scarce State and private financial resources. The marriage restriction is
rational, it argues, because the General Court logically could assume that
same-sex couples are more financially independent than
married couples and thus less needy of public marital benefits, such as tax
advantages, or private marital benefits, such as employer-financed health
plans that include spouses in their coverage.

An absolute statutory ban on same-sex marriage bears no rational relationship
to the goal of economy. First, the department’s conclusory generalization–
that same-sex couples are less financially dependent on each other than opposite-sex
couples–ignores that many same-sex couples, such as many of the plaintiffs
in this case, have children and other dependents (here, aged parents) in
their care. [FN27] The department does not contend, nor could it, that these
dependents are less needy or deserving than the dependents of married couples.
Second, Massachusetts marriage laws do not condition receipt of public and
private financial benefits to married individuals on a demonstration of financial
dependence on each other; the benefits are available to married couples regardless
of whether they mingle their finances or actually depend on each other for
support.

The department suggests additional rationales for prohibiting same-sex couples
from marrying, which are developed by some amici. It 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. They do not want marriage abolished. They do not attack
the binary nature of marriage, the consanguinity provisions, or any of the
other gate-keeping provisions of the marriage licensing law. Recognizing
the right of an individual to marry a person of the same sex will not diminish
the validity or dignity of opposite-sex marriage, any more than recognizing
the right of an individual to marry a person of a different race devalues
the marriage of a person who marries someone of her own race. [FN28] If anything,
extending civil marriage to same-sex couples reinforces the importance of
marriage to individuals and communities. That same-sex couples are willing
to embrace marriage’s solemn obligations of exclusivity, mutual support,
and commitment to one another is a testament to the enduring place of marriage
in our laws and in the human spirit. [FN29]

It has been argued that, due to the State’s strong interest in the institution of
marriage as a stabilizing social structure, only the Legislature can control
and define its boundaries. Accordingly, our elected representatives legitimately
may choose to exclude same-sex couples from civil marriage in order to assure
all citizens of the Commonwealth that (1) the benefits of our marriage laws
are available explicitly to create and support a family setting that is,
in the Legislature’s view, optimal for child rearing, and (2) the State does
not endorse gay and lesbian parenthood as the equivalent of being raised
by one’s married biological parents. [FN30] These arguments miss the point.
The Massachusetts Constitution requires that legislation meet certain criteria
and not extend beyond certain limits. It is the function of courts to determine
whether these criteria are met and whether these limits are exceeded. In
most instances, these limits are defined by whether a rational basis exists
to conclude that legislation will bring about a rational result. The Legislature
in the first instance, and the courts in the last instance, must ascertain
whether such a rational basis exists. To label the court’s role as usurping
that of the Legislature, see, e.g., post at (Cordy, J., dissenting),
is to misunderstand the nature and purpose of judicial review. We owe great
deference to the Legislature to decide social and policy issues, but it is
the traditional and settled role of courts to decide constitutional issues.
[FN31]

The history of constitutional law "is the story
of the extension of constitutional rights and protections to people once
ignored or excluded." United States v. Virginia, 518 U.S.
515, 557 (1996) (construing equal protection clause of the Fourteenth
Amendment to prohibit categorical exclusion of women from public military
institute). This statement is as true in the area of civil marriage as
in any other area of civil rights. See, e.g., Turner v. Safley, 482
U.S. 78 (1987); Loving v. Virginia, 388 U.S. 1 (1967); Perez
v. Sharp, 32 Cal.2d 711 (1948). 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. See generally
C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice §§ 1.9