Legal Question in Constitutional Law in Massachusetts

Gay Marriage in MA- Between Implementation and Possible Passing of Amendment

On Wednesday the state will vote whether to write discrimination into the MA Constitution. This is problematic in that what I've read says it will cause chaos if it passes in November 2006, assuming all other factors are met. Gay marriage will have been legal for more than 2 years and undoubtedly thousands of same-sex couples legally married in the Bay State. If this amendment passes I assume this will basically annul any of these marriages. If this happens does the SJC have any way of ruling this amendment unconstitutional, as it could be argued gays are being denied a right previously afforded them for the last 2 years. What, if any, are the options the SJC can go about? Also on the Federal level what would happen if the Amendment negated any Massachusetts gay marriages.

Also, is there any way the State Legislature can put a stay on this ruling without the affirmation of the SJC?

I am writing a lengthy research paper and hope to get some input on all the legalities that may arise from the ruling.

Thanks for your help.


Asked on 2/08/04, 9:42 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Gay Marriage in MA- Between Implementation and Possible Passing of Amendment

The Court cannot strike down such an amendment on the ground that it violates the state constitution. By defininition, if it becomes part of the constitution it cannot be contrary to the constitution. The Court could rule that the amendment is contrary to the federal constitution, but such a ruling would be subject to review by the U.S. Supreme Court and that Court is unlikely to agree with the SJC's decision.

As currently written, the federal constutuion requires each state to recognize the legal acts of other states, including marriages. It also forbids states from abrogating contracts, so any gay marriages performed before such an amendment is in place would presumably remain valid. The amendment would prevent new gay marriages but would not undermine existing ones.

The state legislature is powerless to put a stay on the SJC's recent ruling. If the state constitution is amended, the SJC will then have to deal with the new language and accept the changed constitution, as it has had to do with all prior amendments.

Some federal lawmakers have proposed an amendment to the U.S. Constitution which would define marriage as a union between a man and a woman. Depending upon how it is written, such an amendment could effectively annul existing gay marriages (the ban on abrogating contracts applies to the states but not to the federal government) and/or relieve states of the requirement that they recognize gay marriages performed elsewhere.

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Answered on 2/09/04, 2:45 pm


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