(concurring). I stand by the principles expressed in my separate opinion in Goodridge v. Department of Pub. Health, 440 Mass. 309, 344-350 (2003) (Greaney, J., concurring). The categorical use of gender as an impediment to marriage in Massachusetts is an infringement of the guarantee to the equal enjoyment of fundamental rights, as stated in art. 1 of the Declaration of Rights, as amended by art. 106 of the *394Amendments to the Massachusetts Constitution, and, absent a compelling purpose that can be accomplished in no other reasonable manner, is forbidden by our Constitution. When inflammatory and irrelevant rhetoric is cast aside, we are dealing, in essence, with a basic human right — the right of a qualified couple, irrespective of gender, to enter a solemn civil contract in Massachusetts and to bind each other to commitments that elevate marriage and the family to the highest of social callings.
I referenced G. L. c. 207, §§ 11, 12, and 13, in my concurring opinion in the Goodridge case, and predicted that the provisions therein would preclude the use of our Goodridge decision to force other States to recognize, as valid, same-sex marriages entered into by nonresidents in Massachusetts. See id. at 348 n.4. Further examination of the arguments and case law presented by the parties in connection with this case, especially the decision in Commonwealth v. Aves, 18 Pick. 193 (1836), has persuaded me that the enforcement of §§ 11 and 12 to bar otherwise qualified1 nonresident same-sex couples from obtaining marriage licenses in Massachusetts, in the manner that it has been done in the wake of our Goodridge decision, is constitutionally impermissible. I see no compelling reason to treat couples who travel here wishing to marry less favorably than our own citizens.
The constitutional basis on which the Goodridge case was decided, however, requires a lesser level of scrutiny. The opinion of the court authored by Chief Justice Marshall, in which I joined, found no rational basis on which to uphold, under principles of both due process and equal protection of the Massachusetts Constitution, a marriage statute that extends the benefits of civil marriage only to couples of the opposite sex. Rather than strike down our marriage laws as unconstitutional, the Goodridge court redefined civil marriage to mean the “voluntary union of two persons as spouses, to the exclusion of all others” and left “the Legislature’s broad discretion to regulate marriage” intact. Id. at 343-344. Because I joined in the opinion of the court in that case, I am bound to seek in *395earnest the existence of rational reasons why the State might enforce the provisions of G. L. c. 207, §§ 11 and 12, to prohibit some nonresident couples from marrying in Massachusetts. Although I continue to adhere to the views expressed in my concurring opinion in the Goodridge case, I agree with the conclusion reached today that the plaintiffs have not demonstrated that there is no conceivable rational basis for the provisions of §§ 11 and 12. Beyond that, the statutory analysis contained in Chief Justice Marshall’s separate opinion in this case is sound. For this reason, I hereby concur in her conclusion that the construction of the word “prohibit” advanced by the Attorney General and endorsed in Justice Spina’s separate opinion results in an overly restrictive interpretation of § 12.
By otherwise qualified” I mean satisfying the legal requirements of age, consanguinity, mental competence, and other legal impediments to marriage that may exist under the laws of the jurisdiction where a couple resides.