BOSTON (AP) – Massachusetts’ highest court ruled 4-3 Tuesday that the state’s ban on same-sex marriage is unconstitutional and gave lawmakers 180 days to come up with a solution that would allow gay couples to wed.

The court did not issue marriage licenses to the seven couples who sued and left the details to the Legislature.

“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,” the majority opinion said. “And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations.”

“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,” the opinion said.

Legal observers said the case took a significant step beyond the 1999 Vermont Supreme Court decision that led to civil unions in that state.

This decision, lawyers said, rules that gay couples are entitled to all the rights of marriage and that creating a separate class of marriage – such as civil unions – would not be acceptable.

Maine has had a Defense of Marriage Act since 1997 that bars marriages of couples of the same sex.

The Massachusetts ruling came the same day as the Maine Legislature’s Judiciary Committee deliberated a bill held over from last session that seeks more legal rights for domestic – not necessarily gay – partners.

In its present form, the Maine bill would give one partner the right to claim the remains of a partner who dies. It also empowers probate judges to order property passed to a domestic partner in cases where there is no will.

But a provision that would have created a state registry of domestic partnerships has been deleted from the Maine bill.

Attorney Mary Bonauto, who represented the seven gay couples who sued in Massachusetts, said the only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry at the end of the 180-day period.

“This is a very good day for gay and lesbian families in Massachusetts and throughout the country,” Bonauto said.

But the issue may find a hostile audience in the Massachusetts Legislature, which has been considering a constitutional amendment that would legally define a marriage as a union between one man and one woman. The state’s powerful Speaker of the House, Tom Finneran of Boston, has endorsed this proposal.

And Republican Gov. Mitt Romney criticizing the ruling, saying: “Marriage is an institution between a man and a woman. I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman.”

A key group of state lawmakers also has recently been working behind the scenes to craft civil union legislation similar to the law passed in Vermont.

Gay and lesbian advocates had been cheered by a series of advances this year, including a U.S. Supreme Court decision striking down anti-sodomy laws, the ordination of an openly gay bishop in the Episcopal Church, and a Canadian appeals court ruling that it was unconstitutional to deny gay couples the same marriage rights as heterosexual couples. Belgium and the Netherlands also have legalized gay marriage.

In addition to Vermont, courts in Hawaii and Alaska have previously ruled that the states did not have a right to deny marriage to gay couples. In those two states, the decisions were followed by the adoption of constitutional amendments limiting marriage to heterosexual couples. No American court has ordered the issuance of a marriage license – a privilege reserved for heterosexual couples.

The U.S. House is currently considering a constitutional ban on gay marriage. President Bush, although he believes marriage should be defined as a union between one man and one woman, recently said that a constitutional amendment is not yet necessary.

The Massachusetts case began in 2001, when seven gay couples went to their city and town halls to obtain marriage licenses. All were denied, leading them to sue the state Department of Public Health, which administers the state’s marriage laws.

A judge threw out the case in 2002, ruling that nothing in state law gives gay couples the right to marry. The couples appealed to the Supreme Judicial Court.

The plaintiffs argued that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

The state’s Attorney General’s office argued that neither state law nor its constitution created a right to same-sex marriage. The state also said any decision to extend marriage to same-sex partners should be made by elected lawmakers, not the courts.

AP-ES-11-18-03 1356EST



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