POMA Facts

Background on the Protection of Marriage Amendment for Catholics in Massachusetts

What is the Protection of Marriage Amendment?

If adopted by the voters, the Protection of Marriage Amendment would add language to the Massachusetts state constitution to affirm that:

1. The law defines marriage as a union only between one man and one woman;
2. Unions between two men or two women, or between more than two persons, will not qualify under the law as marriage or be treated as equal to marriage.
3. State and local government will reserve any public "benefits and incidents exclusive to marriage" to the marital union between a man and a woman (business and other private policies will not be affected).

Here is the Amendment in full:

It being the public policy of this Commonwealth to protect the unique relationship of marriage in order to promote, among other goals, the stability and welfare of society and the best interest of children, only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts. Any other relationship shall not be recognized as a marriage or its legal equivalent, nor shall it receive the benefits or incidents exclusive to marriage from the Commonwealth, its agencies, departments, authorities, commissions, offices, officials and political subdivisions. Nothing herein shall be construed to effect an impairment of a contract in existence as of the effective date of this amendment.

Who is sponsoring the Amendment?

The Massachusetts Citizens for Marriage, based in Waltham, drafted the Amendment and collected over 120,000 signatures statewide in 2001 to begin the process for eventually placing it on the November 2004 ballot as an initiative question. The process requires at least one fourth of all of the members of the state legislature to twice approve the Amendment, once in 2002 and again in 2003 or 2004.

Does the Catholic Church support the Amendment?

Yes. In July of 2001, the Massachusetts Catholic Conference (MCC) announced its backing of the Amendment, and in the fall of that same year, the Bishops issued a letter in each of the four dioceses informing their pastors of their support and urging cooperation in the signature gathering at the parish level.

If marriage is already defined in law as a union between a man and a woman, why is the Amendment necessary?

The Amendment is necessary for the following reasons:

1. Even though years ago the courts in Massachusetts defined marriage as a union between a man and a woman, no statute expressly upholds that definition, and numerous groups are pushing hard to redefine it, claiming that traditional marriage is outdated and discriminatory.
2. Advocates for same-sex marriage have filed a lawsuit in Boston, named Goodridge v. Dep’t of Public Health. If successful, the lawsuit would force the state to issue marriage licenses to same-sex couples. The lawsuit is patterned after the one filed in Vermont that recently compelled that state to change its laws to equate same-sex partners in "civil unions" with spouses. A trial judge has ruled in the case that the current marriage law is reasonable, but the plaintiffs have appealed.  Harvard law professor Laurence Tribe and other legal experts say the Goodridge case stands a good chance of ultimately winning, and in a recent speech the state's chief justice has expressed her support for changing Massachusetts law.
3. The Massachusetts legislature is poised to enact a "domestic partnership" law that equates unmarried couples with married spouses when distributing employee benefits, thus providing a stepping stone for approving same-sex marriage.
4. According to MCC Executive Director Gerry D’Avolio, in his July 2001 statement:

"Marriage is a fundamental relationship that should not be redefined according to the whims of the judiciary or pursuant to the unproven dictates of trendy social theories. . . . It is a public institution that has functioned, and will continue to function, as the ideal basis for relations between individual men and women, and as the natural and most beneficial setting for the raising of children. As such, its definition should remain fixed as a constitutional matter."

5. The Amendment would make constitutionally explicit what is already implicit in Massachusetts law—that marriage is a union between a man and a woman. If adopted by the voters and added to the state constitution, it would require the courts, legislature, cities and towns, and all other state and local agencies to uphold the traditional definition of marriage.

Opponents claim the Amendment goes too far by cutting off healthcare, survivor rights and other public benefits, to unmarried persons and to children of unmarried parents. Is that true?

No! This false claim has led the Attorney General, labor unions, and some religious organizations and legislators to oppose the Amendment. The Catholic Church could not support the Amendment if the claim were true. Unfortunately, the opponents overlook the language of the Amendment itself.

Here’s the key phrase: "nor shall it [a relationship not consisting of one man and one woman] receive the benefits or incidents exclusive to marriage" (emphasis added).

The key word is "exclusive".

For a public benefit to be "exclusive" to marriage means that persons who are not spouses are excluded under all government programs from receiving it. If a public benefit under any government program goes to someone other than, or in addition to,   spouses, such as a child, a relative, or a single person, then it is not "exclusive" to marriage. If the benefit is not exclusive to marriage, then the Amendment would not apply. The state could choose to extend that non-exclusive benefit to anyone it sees fit.

For example, many public benefits are not exclusive to marriage in that unmarried adults or children already receive them. They include health care services, financial assistance, insurance coverage, social support, housing and survivor benefits. These do not go only to spouses. By virtue of its own language clearly referring to benefits that are exclusive to marriage, the Amendment will allow anyone seeking a benefit not exclusive to marriage to persuade the government to provide it. Those who claim the Amendment will cut off these sorts of benefits have seriously misread its plain language.

Didn’t the state legislative Committee on Public Service conclude that the Amendment would make it "illegal" to provide healthcare and other benefits to unmarried persons?

Yes but with all due regard, the April 2002 report makes claims so extreme and so utterly unsubstantiated that it is an embarrassment to the opponents of the Amendment. Unfortunately, it will go to every voter if the Amendment gets on the ballot by virtue of being included in the voting guide distributed by the Secretary of State beforehand.

The report wrongly asserts that "the amendment would make it unconstitutional for some of our citizens to leave work to care for a sick child or to have the right to visit that sick child or a loved one in the hospital, to make medical decisions for them if they are incapacitated, or to include them in their health insurance." None of these benefits are exclusive to marriage. The report simply skips over that word "exclusive" in the Amendment.

But it gets worse. The report claims that the Amendment would "be bad for business and bad for labor . . . forbidding employers from granting key benefits to their employees . . ." etc., leaving the false impression that the Amendment would affect private employers. This is not true.  The Amendment explicitly limits its application to "the Commonwealth, its agencies, departments, authorities, commissions, offices, officials and political subdivisions". Private corporations are not included.

Moreover, for any "key benefits" that public employers may want to provide to unmarried persons, the question will always be, are these benefits "exclusive to marriage"?

What about the Attorney General, who insists that the Amendment "is aimed directly at . . . children and dependents of same-sex couples"?

Again, let’s examine this claim in light of the Amendment’s plain language. Attorney General Tom Reilly testified before the legislature in April 2002 that in his opinion the Amendment would prohibit "the state or a municipality from providing the same level of healthcare benefits to the child of a same-sex couple that it provides to a child born to a married couple. It would also prohibit the state or a municipality from paying survivor benefits to the child of a lesbian or gay parent killed in the line of duty."

First of all, the Attorney General fails to consider whether healthcare or survivor benefits are exclusive to marriage. They clearly are not exclusive since people other than spouses receive them as a matter of course from the government. For example, children and relatives are eligible for survivor benefits under many government programs. Not just spouses receive them. If the state wants to provide healthcare or survivor benefits to unmarried persons and the children they care for, the Amendment will not stop it.

Second of all, the Attorney General is talking about situations involving adults serving as parents or as caregivers of children. Whereas the Amendment is concerned only with preserving the exclusively marital rights of spouses. Not all parents are spouses. Thus, those rights or benefits relating to parenting are simply not exclusive to marriage. If the state wants to extend benefits to any adult or any children in the adult’s care on the basis of a parental or caregiving relationship, the Amendment will not prevent it.

The Attorney General admitted to the legislature that "the Commonwealth has a vested interest in preserving and strengthening the unique institution of marriage." His office has ably defended in the courts the state’s current policy of limiting marriage licenses to the union between a man and a woman. In fact, his office has made convincing arguments in Goodridge v. Dep’t of Public Health that limiting marriage to this union is not discriminatory or biased.

Unfortunately, the Attorney General’s remarks to the legislature are not as carefully researched as the arguments his office has made in the courts.

What about adoption, hospital visitation rights and surrogate consent for medical treatment?

Adoption is not "exclusive to marriage" because persons other than spouses may adopt children. The Amendment is intended only to preserve the definition of marriage and will not affect the law on who can become a parent by adoption.

As for hospital visitation rights and surrogate consent, access to these benefits would be an issue only in government-run facilities, since the Amendment would not affect private policies. These are rights, generally speaking, that apply to family members or next-of-kin, not just to spouses. Thus, they too are not "exclusive to marriage". A public facility would be free under the Amendment to create visitation rights and allow for surrogate consent for any category of unmarried persons it chooses.

So, if the Amendment does not apply to healthcare, survivor benefits, etc., because they are not exclusive to marriage, then what benefits are exclusive to marriage?

Those benefits that go only to spouses are exclusive to marriage. The opponents to the Amendment claim there are hundreds of benefits that would be affected by the Amendment’s passage. In reality, very few public benefits in Massachusetts go only to spouses.

The Amendment’s sponsors have identified four in particular that are critical to the integrity of the marriage institution:

1. the right to be identified as being married;
2. the right to be identified as being a spouse, a husband or a wife;
3. the right to be eligible for receiving a marriage license;
4. the right to receive the legal protections afforded to sexual relations between spouses.

These benefits are historically and logically tied to the definition of marriage as a union between a man and a woman. Removing the connection between these rights and the coming together of the sexes by allowing other relationships to qualify would radically redefine marriage. Thus, the Amendment would require the state to continue its longstanding policy of reserving these four benefits exclusively to marriage between a man and a woman.

Are there other benefits that are exclusive to marriage?

A careful review of the entire body of state law reveals no other benefits that only spouses receive as uniquely marital.

The Amendment would govern only public policies of state and local governments in Massachusetts. Benefits issued by the federal government and by private corporations or individuals would not be affected.

This really narrows the field. Only the four benefits listed above are clearly exclusive to marriage when all of the public policies of Massachusetts are taken into account. While numerous laws may associate certain benefits with marriage by extending them to spouses, the Amendment’s reference to "exclusive" reduces its scope considerably.

But don’t some statutes give preferences solely to spouses, treat only spouses as a unit such as for tax filing purposes, and set up divorce courts for spouses alone?

The benefits at issue here are not unique to marriage if one takes into account that similar mechanisms are provided to non-spouses under other statutes. Thus, in-state residents are also given a preference over out-of-state residents for certain purposes, corporations are also treated as a unit in various ways, and specialized courts are also set up for juveniles and those declaring bankruptcy, among other categories.

What does this mean as a practical matter?

The Amendment would direct the state to continue defining "marriage" and "spouse" in all of its policies the same way that these terms have always been defined. A person who is not a spouse according to the longstanding definition of marriage could not be shoehorned into an existing benefits policy by broadening the definition of spouse.

However, the Amendment would allow the state to consider on a benefit-by-benefit basis whether unmarried persons who do not now receive some benefit that a spouse receives could qualify on some other, non-marital ground.

What about laws extending benefits to same-sex couples in domestic partnerships or civil unions—would the Amendment prohibit their enactment?

It will depend on whether these laws equate these relationships with marriage and what benefits it is that they seek to extend.

Recognizing a same-sex relationship by calling it a domestic partnership or civil union would not, in and of itself, violate the Amendment. The Amendment would only direct the state to refrain from identifying such relationships "as marriage or its legal equivalent".

Unless the benefit at issue is "exclusive to marriage", providing it to persons in domestic partnerships or civil unions would not, in and of itself, violate the Amendment either. The Amendment would only require the state to base eligibility on non-marital criteria, such as financial, physical or medical need, place of residence, contractual agreement, personal well-being and safety, and the best interests of children or other dependents.

The Amendment would not allow, however, the state to follow the approach taken in Vermont’s "civil union" law. That law defines marriage as a union between a man and a woman and creates a second category called a civil union, to include only same-sex couples. The Vermont law then requires state officials to automatically extend all spousal benefits to civil union partners. This is a clear example of converting a private relationship into the "legal equivalent" of marriage.

The intent of the Amendment is not to deny public benefits of a non-exclusive nature to unmarried persons. Rather, the Amendment seeks to preserve the unique definition and status of marriage between a man and a woman in their role as spouses.

So, according to this analysis, the Amendment would allow the state to give same-sex couples any benefits not exclusive to marriage. Why do others disagree with this interpretation of the Amendment and whose interpretation will govern?

The issues raised are not always simple and thus they require careful study and reflection. The Massachusetts Catholic Conference, for example, had to evaluate the language and scope of the Amendment closely to make sure that it did not conflict with Church teaching about the equal dignity of all human beings. There is no conflict. The Amendment upholds marriage as a uniquely defined institution without barring the state from extending non-marital benefits such as healthcare to unmarried persons.

Many people are taking a cautious approach to study the issues carefully. Documents such as this one should help clarify the issues.

Unfortunately, some organizations that oppose the Amendment may be exaggerating its impact because they do not feel comfortable strongly advancing their real agenda. They know the Amendment will preserve the state’s current policy of issuing marriage licenses only to unions consisting of a man and a woman. They also know that the general public is not ready to accept a change as radical as redefining marriage itself. So they want the debate to hinge on the benefits issue, not the marriage issue.

As to whose interpretation is right, the courts always look to the plain meaning of the language itself. If there is any question, the courts will look to what the drafters of the Amendment say they intended.

The Massachusetts Citizens for Marriage, the Amendment’s sponsor, has consistently asserted that its goal in drafting the Amendment is to preserve marriage as a union between a man and a woman, and not to deny healthcare and other non-exclusive benefits to anyone. Thus, in any legal dispute as to the Amendment’s scope, the drafters’ views, not those of the opponents, will govern.

Why not allow the state to identify same-sex relationships as legal marriage and same-sex partners as legal spouses?

This is the critical question. There are at least 5 reasons why the state should define marriage as a union between a man and a woman, and not bestow on any other relationship the exclusive benefit of being legally identified as spouses in a marriage.

1. Marriage is a social and religious institution that is built around the obvious and meaningful existence of the male and the female human being. Including same-sex relationships in the legal definition of marriage would force the state to ignore the biological reality of the man and the woman and the unique benefits to the state of a union so constituted.
2. The union of a man and a woman in marriage provides the most durable, most effective, and from the state’s perspective, most efficient means for the creation and upbringing of new generations. Including same-sex relationships in the legal definition of marriage would force the state to be indifferent to the indispensable contribution that uniting the sexes makes in prolonging the life of society itself.
3. The union of a man and a woman in marriage provides the best natural opportunity for a child to be raised by his or her biological father and mother, the ideal setting for meeting the needs of children. Including same-sex relationships in the legal definition of marriage would require the state to abandon the presumption that both a father and a mother are the preferred participants in a child’s upbringing.
4. A marriage unites a man and a woman, therefore equally drawing the sexes together. Statistics show that in Vermont, far more women have registered in same-sex civil unions than have men. Changing the definition of marriage thereby diminishes the state’s ability to promote the value of commitment to both sexes equally.
5. The institution of marriage has been shaped by thousands of years of experience and should not be so easily redefined. When society tinkered with marriage through the creation of no-fault divorce, no one anticipated the severity of the fall-out suffered by women and children. If marriage is redefined in such a way as to force the state to ignore the obvious biological fact of the existence of the man and the woman, and the obvious importance of both a father and a mother in a child’s life, then this change will invite even more serious social disruption.

Some people say that denying others the right to marry is extreme, mean-spirited and hateful because it ignores the love and care that these couples have for each other, and makes them second-class citizens. Is this a fair criticism?

No. One must determine exactly what those who impugn the motives of the Amendment’s supporters consider to be "mean-spirited and hateful". Those who say that the Amendment cuts off healthcare and other non-exclusive benefits to unmarried persons are simply wrong. No such intent can be fairly imputed.

A representative of the Boston Bar Association testified before the state legislature in April 2002 that "the definition of marriage set out [in the Amendment] . . . conveys a truly insidious message of stigma and exclusion" (italics added). This is a remarkable assertion—since when has a universally understood definition that has survived over thousands of years suddenly become an instance of hate? This indicts every person in the majority of this Commonwealth who supports the traditional definition of marriage and ignores that the federal government and 36 states have recently passed laws reaffirming the traditional definition. The charge of extremism is simply unwarranted.

We do not formalize every relationship as a public institution, or according to the presence of love and care. Countless varieties of relationships exhibit love and caring, whether between husband and wife, parent and child, brother and sister, grandparent and grandchild, friend and friend, etc. If love and caring were the defining criteria for the institution of marriage, then all of these relationships and more would have to be included.

Instead, the boundaries of legal marriage are shaped by the unique natural possibilities that arise when the sexes come together. The Pontifical Council for the Family put it best, in its recent statement on Family, Marriage and "De Facto" Unions:

[The marital union of a man and a woman involves, unlike a same-sex relationship, a sexual complementarity] from which comes [the couple’s] natural inclination toward the generation of children [and] the possibility to love one another precisely because they are sexually different and complementary. . . . [Thus, while other] ways of living sexually can exist—even against natural tendencies—other forms of living together, other friendly relationships—whether based or not on the sexual difference—and other ways of bringing children into the world, [marriage between a man and a woman] is the only institution that incorporates and unites all the elements mentioned at the same time and in an original way.

The institution of marriage is not just about love, as important as love is; it’s about how the society can best regulate the coming together of the sexes and protect the creation and upbringing of new generations. By design and by intent, the relationship of a same-sex couple excludes one of the sexes from participating in the family household as partner and as parent. Thus, only on this basis, and not according to any comparison of the love and care involved, are these relationships assessed. In light of the public goals to be achieved by institutionalizing marriage, only the union of a man and a woman fits the bill.

Ultimately, however, doesn’t the Amendment discriminate against persons with homosexual orientation?

No. It is one thing to denigrate individuals because of a prejudicial disregard for their equal dignity and worth. The Amendment has nothing to do with an animus against individuals.

The Catholic Bishops of Massachusetts "firmly oppose all forms of unjust discrimination whether against homosexuals or heterosexuals. . . . ‘Homosexuals, like everyone else, should not suffer from prejudice against their basic human rights. They have a right to respect, friendship and justice.’ . . . [W]e must state publicly our disapproval of the unjust harassment of homosexuals by members of the heterosexual community. Such behavior is unconscionable and it must be stopped." Statement of the Massachusetts Catholic Bishops, May 31, 1984.

It is another thing altogether to assess in the light of the public interest whether a particular human relationship provides the best means for furthering the common good by being elevated to a public institution. The Amendment simply affirms the unique public merits of a relationship that brings the sexes together.

There was testimony submitted to the state legislature in the April 2002 hearing incorrectly alleging that the Amendment violated Catholic teaching by "exclud[ing] same gender relationships and family units from affirmation and societal support." (Fr. Richard P. Lewandowski, testifying on his own behalf). This testimony referred to "Always Our Children", a statement of the Catholic bishops of the United States, to the effect that "It is not sufficient only to avoid unjust discrimination. Homosexual persons ‘must be accepted with respect, compassion and sensitivity’" (citing the Catechism of the Catholic Church, no. 2358).

All persons deserve respect. But not every private relationship merits official approval by formalizing it as a public institution. Nor does the institution of marriage demean the individuals involved in alternative relationships, just as it does not demean the individuals involved in the relationships between parents and offspring, brother and sister, etc., by excluding these from its scope as well.

The Protection of Marriage Amendment is consistent with Catholic teaching, is necessary, and respects the dignity of all human beings by not foreclosing eligibility for social services while at the same time it preserves the traditional definition of legal marriage as a union between a man and a woman.

For more information on this and other public policy issues, visit the MCC website at www.macathconf.org or call the MCC staff at 617-367-6060.