## Facts

- The Massachusetts Senate requested an advisory opinion from the Justices of the Supreme Judicial Court under the state constitution’s advisory-opinion provision.
- The request followed a recent decision holding that excluding same-sex couples from civil marriage violated the Massachusetts Constitution.
- The Senate transmitted a pending bill (Senate No. 2175) that would create a new statutory scheme for same-sex “civil unions.”
- The bill would prohibit same-sex couples from entering “marriage,” while granting civil union partners all state-law “benefits, protections, rights and responsibilities” associated with marriage.
- The Senate expressed “grave doubt” about the bill’s constitutionality and asked whether it satisfied equal protection and due process requirements under the Massachusetts Constitution and specified articles of the Declaration of Rights.

## Issues

1. Whether the Senate’s request presented an “important question of law” on a “solemn occasion” permitting an advisory opinion.
2. Whether a statute that bars same-sex couples from civil marriage but grants them civil unions with the full state-law incidents of marriage satisfies Massachusetts equality and due process guarantees.

## Decision

- The Justices concluded the request presented a proper “solemn occasion” because the Senate had legislative action in view and raised serious constitutional doubt about a pending bill.
- The Justices advised that Senate No. 2175 would be unconstitutional.
- The Justices reasoned that, under the controlling constitutional interpretation in the recent marriage decision, the Commonwealth could not continue to exclude same-sex couples from civil marriage by offering a separate status labeled “civil union.”
- The advisory answer indicated that the Legislature could not cure the constitutional violation by relabeling the institution while reserving “marriage” to opposite-sex couples.

## Legal Principles

- Advisory opinions may be given when a legislative branch seeks guidance on an important legal question presented on a solemn occasion—typically when it contemplates action but doubts its constitutional authority.
- Under Massachusetts constitutional equality and liberty protections, the state may not deny same-sex couples access to civil marriage.
- A separate legal status for same-sex couples—created and defined by their exclusion from “marriage”—is constitutionally deficient even if it provides the same state-law rights and responsibilities as marriage.
- Constitutional compliance requires eliminating the exclusion from civil marriage itself, not maintaining the exclusion through a parallel institution.

## Conclusion

The Justices advised that a bill creating civil unions for same-sex couples while continuing to bar them from civil marriage would violate Massachusetts constitutional guarantees of equality and due process because it preserves a separate status in place of equal access to civil marriage.


Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (Mass. 2004)