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Judge Reviews Civil Marriage Law

Suffolk Superior Court Judge Thomas Connolly will decide in the near future on a case argued yesterday by Gay and Lesbian Defenders, which seeks civil marriage for same-sex couples.

Before a crowded courtroom, GLAD argued on behalf of seven couples who filed a complaint in April 2001 against the Massachusetts Department of Health.

Jennifer Levi, a GLAD senior staff attorney, spoke before the judge about love and marriage, attempting to prove that marriage is a fundamental right for everyone.

“These couples want to marry for many of the same reasons that any couple who falls in love wants to marry,” Levi said. “The heart of the case is that people want to marry who they love.”

As the law stands, same-sex couples are denied certain benefits only available through civil marriage. During times of illness or death, the partners and children of the couples are not allowed to be present or to obtain social security or some insurance money.

In a discussion about discrimination issues, Levi said, “Marriage is a legal relationship and a social status that is universally understood. These couples ask simply that the Commonwealth fulfill the state constitution’s guarantees of equal treatment and not single out gay and lesbian couples by denying them alone access to marriage.”

Although both men and women are subject to refusal of marriage rights, Levi and the plaintiffs believe it is a case of sexual orientation discrimination. Levi said in the situations of all seven couples, “Each is qualified to marry under the laws of Massachusetts, apart from the fact that they are of the same sex.”

In this case, Levi said the plaintiffs were told outright by their respective city clerk’s offices that the reason they could not receive a marriage license was only that they are of the same sex.

Levi disputed the Commonwealth’s current reasoning for same-sex marriage exclusion, which says “that the exclusion is justified to create optimal settings for childbearing, that it is necessary to protect traditional marriages, [and] that denying gay and lesbian marriages would protect financial resources.”

Levi pointed out that many same-sex couples adopt children or conceive through alternate means, that procreation and coition are not crucial to marriage and that traditional marriages come with both responsibilities and benefits, which the same-sex couples would continue to uphold. She also argued marriages tend to improve the financial situations of two people.

When confronting the defense’s argument that a decision in favor of the gay and lesbian community could be controversial or unpopular both politically and with the general public, Levi said she hopes the court decisions could change those ideas.

The Department of Health argued although the issue is important, it is not a fundamental right.

Assistant Attorney General Judith Yogman, arguing for the state, said, “No state legislature has said that people of the same sex can marry; this issue does not have the same deep roots of discrimination as other issues [race or mental and physical disabilities] to gain protection.”

Much of the state’s argument rested on the use of federal money for marriages.

“All benefits cost money,” Yogman said. “The courts should not expand the system to include gays and lesbians. This would also require more costs for the individual’s workplaces and insurance companies to include their spouses.”

Yogman also argued the fundamental idea of marriage is procreation.

“All same-sex couples are incapable of procreating without outside help, and the legislature has a right to draw a line where they feel optimal settings are needed,” Yogman said.

The judge interrupted both arguments multiple times with questions that appeared to favor the anti-discrimination stance of GLAD, advising the state not to underestimate the power of his court.

Levi said she felt optimistic about the judge’s decision.

“I definitely think he’s thought a lot about the case and will issue a fair outcome,” she said.

One of the seven couples, Michael Horgan and Ed Balmelli of Boston, was also satisfied with the arguments. Balmelli, a Boston University graduate student who will finish his master’s degree in May, said he thought the case went well.

“The judge asked good questions about money,” Balmelli said. “It seemed like the defense was saying you should only hire gay people because they’re cheaper.”

Horgan said he thought a success for the plaintiffs “would mean that gay people — people who love each other — could finally marry.”

Karen Loewy, one of the GLAD co-counsels, echoed Horgan’s sentiment regarding gay unions.

“A success could provide a nice press occasion,” Loewy said. “Civil unions are a step in the right direction, but they are not equal to marriages.”

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