SEPARATE BUT EQUAL?

The Massachusetts Supreme Judicial Court’s response to the Massachusetts legislature is not as groundbreaking as people are making it out to be. It’s just the logical conclusion of the Goodridge decision, a ruling the legislature decided to try and side-step. The Justices in the majority mercilessly home in on the central meaning behind so-called “civil unions” – the only defense of them is that they are a device to maintain exclusion, especially when they are substantively identical to civil marriage. In that sense – same thing, different department – they’re a text-book case of “separate but equal.” If you’re going to give gay couples the same rights as straight couples, why are you calling it something different? If both can drink the same water, why a different water fountain? The only answer can be: to keep the stigma in place. But stigma as such surely has no role under a constitution that affirms equal rights for all citizens. It’s not the court’s role to rule otherwise. The only judicial activism in this case would have been if the Court had decided that, in spite of the state constitution, the public’s own discomfort with a minority would be justification for maintaining that minority’s second class status. Legislatures are entitled to legislate stigma. Courts are supposed to interpret the Constitution. If the Constitution guarantees equal rights for all, and marriage is one of the most basic civil rights there is, and gay couples can and do fulfill every requirement that straight couples can, what leeway does any Court have? I’m constantly amazed by these claims of judicial “tyranny.” Was Brown v Board of Education tyranny? It’s exactly the same principle as operates here: separate but equal won’t do.

A NEW DYNAMIC: But there is a new dynamic at work. First, the White House is smart enough to know that this issue is dangerous for all involved. If the president makes marriage equality an issue in this election, he must know that John Kerry will not allow him to be more against gay marriage than Kerry is. Kerry is strongly opposed to allowing gay people to enjoy the same civil insititution he has used himself twice, and yesterday he reiterated that. So the issue for the voters becomes: do you support Bush who wants to amend the constitution to strip gay couples of marriage rights, civil unions, domestic partnerships and any civil recognition at all; or do you support a man who opposes gay marriage but backs civil unions for gays, a state-by-state solution, and no constitutional amendment? Not such a slam dunk for Bush. In fact: advantage Kerry. But before anything can happen, we will have actual, real, living marriages in America that are between two people of the same sex. So the debate will then become how these people’s marriages can be undone, revoked, retroactively extinguished. The religious right and the Catholic bishops will be on a mission to expand … divorce!

ANOTHER VIEW: I know you’re all sick of me on this topic, so let me point you to another person’s view, a heterosexual, who may persuade you better than I can. After all, my life, my relationship, my friends, my family, are involved. And it’s always good to have another view.