When the Massachusetts Supreme Judicial Court discovered a fundamental right to same-sex marriage in that state’s constitution in 2003, this magazine lamented the fact that the authority to redefine the meaning of marriage had not been “left to the give-and-take of legislative decision making.”
Why was the Massachusetts court embracing the judicial overreach of the U.S. Supreme Court’s abortion ruling in yet another deeply divisive social and moral issue?
Last month, California’s Supreme Court followed in the Massachusetts court’s wayward footsteps, making California the second state to legalize same-sex marriage. Indeed, the California decision was more sweeping, and potentially more significant: same-sex couples living outside California will be allowed to come and marry there, and the state will also recognize same-sex marriages contracted elsewhere. Both state courts argued that, despite the legal and social history of marriage as an exclusively heterosexual institution, there was no “rational” basis for denying same-sex couples the right to marry.
The rationale for California’s 4–3 decision was unconvincing even to many who otherwise support same-sex marriage, because in finding such a fundamental right the court judged the state’s expansive law establishing same-sex civil unions to be unconstitutional. That law, as the dissenting judges pointed out, granted civil unions all the substantive rights and benefits of marriage. What remained in dispute was whether by reserving the term “marriage” to heterosexual couples the state was treating same-sex couples in an unlawfully discriminatory manner. Dissenting from the majority opinion, Justice Carol Corrigan argued for the constitutionality of the distinction the legislature had made between marriage and civil unions. “The people are entitled to preserve this traditional understanding in the terminology of the law, recognizing that same-sex and opposite-sex unions are different. What they are not entitled to do is treat them differently under the law,” she wrote. “Plaintiffs, however, seek to change the definition of the marital relationship, as it has consistently been understood, into something quite new. They could certainly accomplish such a redefinition through the initiative process. As a voter, I might agree. But that change is for the people to adopt, not for judges to dictate.”
The California ruling also overturned a statute, passed by referendum in 2000, that defined marriage as a union of partners of the opposite sex. Not surprisingly, groups opposed to same-sex marriage have placed a constitutional amendment on the ballot in November that would ban same-sex marriage, overturn the state Supreme Court’s ruling, and possibly make California law regarding civil unions less progressive than it was before the court’s decision. Similar initiatives in many states following the Massachusetts ruling are thought to have galvanized conservative religious voters and to have contributed to George W. Bush’s 2004 re-election, especially in the crucial contest in Ohio. Whether the issue will have that kind of importance this year is unclear.
While the Catholic Church’s opposition to legalizing same-sex unions or marriage is unambiguous, the views among Catholics vary widely, with some surveys showing self-described Catholics to be more accepting of homosexuality than members of many other religious groups. The argument that extending the right to marry to same-sex couples will strengthen what is best and most loving in those relationships by encouraging fidelity, stability, and the care of children, and thus strengthen the community as a whole, is increasingly persuasive to many. Increasingly less persuasive to many Catholics and non-Catholics alike are the church’s condemnations of “intrinsically evil acts.” Clearly, the church must find better ways to bring its legitimate concerns about the erosion of traditional sexual morality and marriage into the public debate.
These are difficult issues, where people of good will often disagree, and where generational differences can be startling. Whether one favors or opposes civil unions or same-sex marriage—or favors one and not the other—the democratic nature of the debate makes prudential judgments unavoidable. As the church has long recognized, not everything that is immoral should be illegal. In many cases, prohibiting or criminalizing activities whose morality is deeply disputed is a mistake. In a democracy, people govern themselves. In that light, it is also a mistake for the courts to foreclose the relatively new public debate about same-sex marriage. Democratic cohesion is difficult to sustain when one side or the other feels its concerns have not been fairly heard. When it comes to how a society defines civil marriage, the voices of citizens, not judges, should be decisive.