Premature judgments

As expected, the Massachusetts Supreme Judicial Court has ruled (Goodridge, et al. v. Department of Public Health) that denying same-sex couples the right to civil marriage violates the equal protection guarantees of that state’s constitution. In a four-to-three decision, the court has given the state legislature 180 days to remedy the situation. The court’s majority found that the “right to marry the person of one’s choice” was “fundamental,” and that there was no “rational basis” for state statutes restricting the benefits of marriage to heterosexual couples.

The court’s decision was sweeping. Writing for the majority, Chief Justice Margaret H. Marshall argued that the Massachusetts Constitution “affirms the dignity and equality of all individuals,” and “forbids the creation of second-class citizens.” In other words, marriage, as traditionally understood, makes second-class citizens of those who are prohibited from marrying persons of the same sex. As a consequence, marriage itself must be redefined. Defending the court’s decision, Marshall argued that the state had “failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

How marriage is defined, and who defines it, is the crux of the issue. Massachusetts, like the rest of the nation, is deeply divided on the question. As the Roe decision has taught us, disputed social and moral questions, especially when they concern practices rooted in common law and on which the Constitution is silent, are best left to the give-and-take of legislative decision making. It is hard to fathom how the court uncovered a “fundamental” right that almost no one, gay or straight, imagined existed thirty years ago. Still harder to understand is how the majority opinion could simply dismiss the state’s objections to same-sex marriage as irrational. That won’t do. Given the fact that same-sex couples raising children is, as Justice Martha Soman wrote in dissent, “a very recent phenomenon,” it is hardly irrational for the legislature to approach same-sex marriage cautiously. Moreover, under the review standard embraced by the majority, the legislature is properly given great latitude. The reasoning behind the legislature’s refusal to recognize same-sex marriage need not be persuasive to the court, it only needs to be rational. Massachusetts’s Supreme Judicial Court has rushed in where angels should fear to tread, usurping the prerogatives of the legislature, short-circuiting democratic debate, and ensuring a political backlash.

Conservative groups are now pressing for an amendment to the U.S. Constitution defining marriage as something into which only a man and a woman can enter. The U.S. Conference of Catholic Bishops has endorsed the amendment initiative. But if it is premature for courts to alter our understanding of marriage to accommodate the emergence of same-sex-led families, it is equally unwise to make it unconstitutional for state legislatures to deliberate on and decide the question. The Catholic Church’s opposition to same-sex marriage is unambiguous, but that doesn’t make it infallible or unproblematic, especially as a matter of public policy. Like the Massachusetts court’s decision, the push for a constitutional amendment is designed to end the debate before it begins.

Published in the 2003-12-05 issue: 
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