I feel bad for being on a plane and in a car or classroom in rural Massachusetts for much of yesterday. (Ironically, I was on a speaking tour in defense of equality in marriage.) But this debate is going to go on for far longer than a day or two. And the journey did give me some time to read the entire ruling and dissents. The text is well worth a good and thorough review. It shows, to my mind, how impossible it is that any reasonable court, given the existing rules for civil marriage, can deny one small group of citizens one of the “basic civil rights of man.”
EQUALITY: The fundamental issue, in the words of the Massachusetts SJC, is as follows:
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. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law… Without the right to marry – or more properly, the right to choose to marry – one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.” Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual’s right to marry against undue government incursion. Laws may not “interfere directly and substantially with the right to marry.”
It’s extremely simple when you think about it. Once you have accepted the idea that gay people are no less people than heterosexuals – that gay sexual orientation is no more and no less chosen than straight sexual orientation – then the principle of equality in marriage is simply unanswerable. The reason I hold that premise is because I know it to be true. I know I’m not a liar; I know countless others aren’t lying either. I know that the overwhelming evidence lies with the fact that homosexual orientation is a given of human nature. I do not therefore believe that a gay person is somehow less of a human being – morally, psychologically, spiritually – than a straight person. That – and that alone – is the fundamental issue at stake here. More to the point – a gay citizen should not be deemed inferior to a straight citizen, denied basic equality under the law, denied the right guaranteed in the Declaration of Independence to the “pursuit of happiness,” when there is absolutely no rational reason to do so. Hyperbole? Here is a challenge to the many married heterosexual readers of this site: did you ever believe that your fundamental right to the pursuit of happiness did not include the right to marry the person you love? Has the possibility that the government might invalidate or prevent your marriage ever for a second occurred to you? If not for you, why not for gays? Why should one group in society be granted special rights over others?
KIDS: The court dispenses with the only real argument from the other side: that civil marriage is reserved for procreation. Of course it isn’t – either as a matter of fact (there are millions of childless married couples and they are no less married than couples with children) or as a matter of law. The SJC is devastating on this point:
Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) (“The consummation of a marriage by coition is not necessary to its validity”).[22] People who cannot stir from their deathbed may marry.
You have an inviolable right to marry, the U.S. Supreme Court has upheld, even if you are mentally incompetent, have divorced twenty times already, have failed to provide for children from previous marriages, are on death row, or in jail, or a foreigner who is simply passing through the United States en route elsewhere. No government can take it away from you. It’s that basic – prior even to the right to vote. Yet millions of citizens, simply because of their involuntary sexual orientation, are still deemed beneath it. If gay people were denied the right to vote, would it be judicial tyranny to strike that law down? So how can it be wrong to strike down a ban on their having an even more fundamental right?
THE HUMAN REALITY: Or put it this way. Tomorrow, a random single man could meet a random single woman on the street, go down to a civil registry office, and immediately have hundreds of rights, benefits, privileges, and civil protections under the law. No one would ask how long they’d been together; whether they loved each other, lived together, cared for each other, etc etc. In a few minutes, any heterosexual can have this. But the following plaintiffs in the Goodridge case cannot:
Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed relationship for twenty years and lived with their twelve year old daughter; Hillary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year.
These people, under current law, are deemed beneath civil marriage, a threat to it, an assault on it, a violation of something sacred. Yet two strangers can walk into a room and be deemed worthier than any of these relationships. Is this just? How can it be? How can it be fair? How can it not be seen as a massive assault on these people’s human dignity, civic equality and social responsibility? You tell me.
POLYGAMY? So does this open the door to polyamory? Of course not. Heterosexual polyamorists or polygamists already have a meaningful right to marry someone. Gay citizens cannot meaningfully marry anyone. Homosexuals are uniquely discriminated against in one the most vital civil rights there is. There is a critical distinction between an involuntary sexual orientation and a choice of a polyamorous lifestyle – a choice that can be made by gays or straights. The rules that civil marriage currently mandate are exactly the rules that gay citizens want to follow. As the SJC puts it,
Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage
of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.
I’ve said it once, I’ll say it a million times: this is a conservative measure. It brings an alienated minority into the fold of citizenship and common humanity. It makes – once and for all – sexual orientation a non-issue. As it should be.
JUDICIAL TYRANNY? Some, however, will argue that, even if all this is correct, the place for this debate is the legislature, not the courts. That’s the only forceful argument of the dissents. In fact, what’s remarkable about the dissents is how pro-gay they are. They don’t demonize; they don’t disparage; they simply say we need to resolve this in the legislatures. I tend to agree. I would much much prefer a legislative solution to a judicial one. But it remains a fact that marriage has long been fought over in the courts. How it is administered, whom it includes, the relationship between the parties, has been resolved in courts in this country for centuries. Why should that suddenly change now? And the rights of minorities – those that might never be able to command majority support – have also always resided in courts in a constitutional republic. If it is not judicial tyranny to protect the tiny minority of people in their right to burn flags, why is it judicial tyranny to protect a small group of people who merely want to marry? To be sure, the job of a state supreme court is not to legislate. But the SJC has not done so. Its ruling is not the parody of judicial invention some feared. It sticks very closely to the arguments brought before it, it invents no new rights, and its genius is in seeing that the burden of proof – given the very powerful defense of marriage rights in constitutional law – obviously resides with the state and not the plaintiffs. Moreover, it has not, as some news reports claim, “ordered” the legislature to do anything. It cannot. It was simply asked by various plaintiffs to interpret the Massachusetts Constitution, which it is obliged to do. If laws exist which the Court believes violate that Constitution, is it supposed to do nothing? As the SJC points out:
The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court’s role as usurping that of the Legislature, see, e.g., post at (Cordy, J., dissenting), is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues. The history of constitutional law “is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
What else is a court supposed to do? When there is no rational basis for a law, and when that law has been challenged, and when that law is designed to marginalize and disenfranchise a small minority, what option does the Court have?
THIS IS FOR REAL: I’m also an optimist on this issue, because I’m a believer in the promise of America and the good will of the citizens of this country. People have already come a long, long way toward accepting the humanity and equality of gay citizens. Within 180 days, there will not be sufficient time to pass a Constitutional Amendment in Massachusetts to keep gay citizens disenfranchised, even if there were an overwhelming majority in favor of it (which there isn’t). Neither the legislature nor the governor can constitutionally over-rule this decision. There is some chance that, if nothing happens in the legislature in 180 days, the Superior Court could then stay the issuance of marriage licenses indefinitely, while some try to organize a state constitutional amendment (which would take a minimum of two years). But that strikes me as a long shot. A slight majority in Massachusetts favors equal marriage rights already; and the state legislature has been considering the measure for a while. This latest ruling is part of a long conversation between judicial and legislative branches in that state, and it may take time to resolve it. The best national response is to leave Massachusetts alone to figure it all out. The far right’s nuclear bomb – a drastic attempt to write the permanent disenfranchisement of gay citizens into the founding document of the entire country – is the last thing Massachusetts or any other state needs. Yesterday, the president mercifully didn’t commit explicitly to that. The official statement read:
Marriage is a sacred institution between a man and a woman. Today’s decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.
I’m not sure what this can mean. Is the president saying he or others in Congress have a right to intervene in the internal affairs of a state’s judiciary or legislature? Surely not. Is he saying that a president has the obligation to determine whether some civil laws are now “sacred” and therefore unavailable to those outside the precincts of some religious beliefs? Are atheists going to be denied the right to civil marriage next? Again, surely not. Or is he threatening to support a Constitutional Amendment to permanently write the disenfranchisement of a minority into the very founding document of the United States? Let’s hope not. Massachusetts needs time to thrash this issue out. If this president wants to stake his re-election on writing a minority of citizens out of the federal Constitution, then the stakes will be as unnecessarily high as one can imagine, and the already deep cultural divide in this country will widen still further. This president doesn’t need that. It’s not what many of his centrist and moderate supporters want. And he has far more important things to do. In those vital things, most specifically the war on terror, the last thing he needs is to polarize this country even more. Please, Mr. President. Don’t.
The Dish 