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Boston Bar Journal

Goodridge Lights A Nation’s Way to Civic Equality

November 15, 2013
| Goodridge Special Edition

Isaacson_Ericby Eric Alan Isaacson

Two decades ago, few imagined our government might recognize that gay and lesbian citizens, as human beings, are entitled to enjoy what most people take for granted as a fundamental right – the right to marry.  With Goodridge, what few imagined possible became reality in the Commonwealth of Massachusetts, with real consequences for the entire nation.

If LGBTQ people enjoyed the most basic rights of human beings in Massachusetts – why not in other states?  Same-sex couples and civil-rights attorneys naturally strategized to replicate Goodridge elsewhere.  Massachusetts’ decision provided a focal point of their briefs, and a guiding precedent for other courts.  Goodridge also answered social conservatives’ objections that recognizing same-sex marriages somehow threatened their religious traditions.  For as Goodridge declared:  “No religious ceremony has ever been required to validate a Massachusetts marriage.”

Indeed, William Bradford’s Of Plymouth Plantation recounts how on May 12, 1621, the Pilgrims celebrated “the first marriage in this place,” which they “thought most requisite to be performed by a magistrate, as being a civil thing.”  Governor Bradford explained that “those of any religion (after lawful and open publication) coming before the magistrates in the Town, or State House, were to be orderly (by them) married one to another.”  Thus began, in Massachusetts, America’s tradition of civil marriage accessible to all, placed beyond ecclesiastical jurisdiction and canon law.

With Goodridge, Massachusetts again took the lead by applying her principle that civil marriage should be universally accessible.  Her founding churches – those of the Pilgrims and Puritans who centuries before had placed civil marriage beyond the power of ecclesiastical institutions – lent fervent support, demanding full civic equality for LGBTQ people.

In California marriage-equality litigation, I represented religious amici supporting marriage equality, including two denominations comprising those congregations: the Unitarian Universalist Association and the General Synod of the United Church of Christ.  Our January 2006 amicus brief before California’s intermediate Court of Appeal naturally began by quoting Goodridge:

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 . . . .  “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Although California’s intermediate Court of Appeal ruled against marriage equality, a concurring opinion acknowledged our “report that some religious denominations that wish to solemnize marriages for same-sex couples are prevented from doing so by the current law.”  Justice Kline’s dissent quoted our brief, and relied heavily on Goodridge itself.  And when the Marriage Cases got to California’s Supreme Court, Goodridge provided the foundational precedent for its May 2008 decision sustaining same-sex couples’ right to marry under California’s constitution.

Connecticut’s Supreme Court followed suit in October of that year, and Iowa’s Supreme Court did so – unanimously – in 2009.  Both followed Goodridge’s precedential example.

Harrowing setbacks swiftly befell our cause.  California’s May 2008 Marriage Cases decision lasted only to November, when Proposition 8 narrowly passed.  Three justices were voted off Iowa’s Supreme Court for daring to join a unanimous opinion sustaining equal access to a fundamental right.  And there were losses at the ballot box in other states, as frightened voters rushed to protect the institution of marriage from a threat they perceived in recognizing equal rights for all.

Social conservatives’ ballot campaigns engendered such fear, suggesting that same-sex couples’ marriages threatened the very foundation and fabric of a free society.  Television ads in California and other states warned that lawyers were ready to sue churches and clergy who withheld religious rites of marriage from same-sex couples.  If same-sex couples may lawfully wed, they said, churches can expect to lose tax-exempt status, and their clergy to face criminal hate-crime prosecutions.

Yet the tide turned, thanks to Goodridge and Massachusetts – whose civic society obviously did not collapse, and whose people enjoyed a remarkably low divorce rate.  Family values remained alive and well in the Commonwealth.  Her churches were open and tax exempt, whether or not they offered religious nuptials to same-sex couples.  Their clergy remained free, as always, to decide whose marriages they would officiate, and on what terms.  And many Massachusetts churches have joyfully thrown open their doors for same-sex couples desiring religious rites.

By happy coincidence, the iconic churches in social conservatives’ narratives of American history are Massachusetts churches.  Those narratives often start with Pilgrims, whose religious convictions moved them to set sail in 1620, and who upon arriving in a New World framed the Mayflower Compact, providing a model for American democracy.  Those Pilgrims soon were followed by Puritans whose leader John Winthrop, Ronald Reagan often reminded us, described a shining “city upon a hill” where they would build the First Church in Boston.  America, the social conservatives insist, should not forget her religious roots.

Yet the Pilgrims and Puritans made marriage a secular civil institution from the very beginning.  And the churches figuring so prominently in social conservatives’ narratives of American tradition and values go beyond supporting civil marriage as a civil right – same-sex couples today are welcome to marry in religious rites at the Pilgrims’ First Parish Church in Plymouth and at John Winthrop’s First Church in Boston, as they are in many other churches and synagogues throughout the Commonwealth.  That, of course, gives the lie to contentions that honoring same-sex couples’ right to marry somehow restricts religious freedom.  Quite the opposite is true.

Thanks to Goodridge, Proposition 8 ultimately was overturned in a case called Perry with the district-court opinion focusing specifically on Massachusetts’ happy experience with same-sex marriagesSince then, the federal Defense of Marriage Act has fallen, and same-sex couples now may marry in fifteen states and the District of Columbia.

Thanks to Goodridge and the example of Massachusetts, moreover, most Americans now support same-sex couples’ right to marry, which I believe will soon be honored in all fifty states.

From California’s Marriage Cases through Hollingsworth v. Perry, Eric Alan Isaacson has represented religious organizations and faith leaders as amici curiae supporting marriage equality, including California Faith for Equality, the California Council of Churches, and the Unitarian Universalist Legislative Ministry California.