Defending Marriage, After Massachusetts: What the Court Did and How We Should Respond

That's what the Massachusetts Supreme Judicial Court did Nov. 18 when, in Goodridge v. Department of Health, it ruled that marriage in Massachusetts is no longer the union of a man and a woman but the union of "two persons." The court argued that forbidding a man to marry another man constituted unlawful and irrational sex discrimination.

The court drew on several laws and state constitutional provisions in making its case, including anti-discrimination laws, hate-crimes laws and a constitutional provision modeled on the failed Equal Rights Amendment forbidding discrimination on the basis of sex.

There's just one problem: When Massachusetts legislators voted for these laws, they were assured again and again that same-sex marriage would not be the result. There is virtually no chance that these laws would have passed if voters and legislators had believed they would lead to the radical redefinition of marriage.

The Massachusetts court is saying to citizens, "You all go ahead and vote for the laws. Then we'll tell you what you really voted for. Don't expect it to look much like what you thought you agreed to." The rule of law requires that laws be predictable and stable - that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon. The Massachusetts court (like the Supreme Court in Roe v. Wade) has ignored this principle.

The funny thing is, this bait-and-switch approach to judging may be turned against the Goodridge decision itself in the future. As UCLA law professor Eugene Volokh (who supports same-sex marriage) has pointed out, the language the majority used in its decision gives no good reason to bar polygamy or adult incestuous marriages. If marriage is simply about commitment, well, obviously we can make commitments to more than one person. And we can make commitments to people who are already members of our families - for example, siblings. Why should these commitments not be recognized in law as marriages?

Although the Goodridge decision insists that the plaintiffs, and therefore its decision, do not "attack the binary nature of marriage [i.e. you can't marry more than one person], the consanguinity provisions [anti-incest provisions] or any of the other gate-keeping provisions of the marriage licensing law," why should the court expect its wishes to have any more force than the wishes of the voters and legislators the court has already ignored? If the court is willing to proceed from what it deems as the internal logic of various pieces of legislation, rather than either the plain text or the legislators' common understanding of what they were doing, why should later courts not apply the same test to Goodridge?

The majority in Goodridge rejected the argument that marriage is an essentially procreative union, pointing out that couples who cannot have children are still permitted to marry. But this objection misses the point.

Marriage - civil marriage, not just sacramental marriage - is essentially a procreative union in two ways. First, marriage only exists because of procreation. Marriage developed as a universal human institution because when a man and a woman have sex, very often a baby is conceived. We've tried to convince ourselves that we have gotten around this "problem." But no matter how many hormones a woman pumps into her body, no matter how much latex we swathe ourselves in, intercourse still makes babies. If nothing else, the existence of almost 4,000 crisis-pregnancy centers in this country should prove that. Marriage developed because the children conceived by men and women need to be protected, and, especially, need strong legal ties to their fathers, whom biology allows to walk away far more easily than mothers.

And marriage developed because sexual risk is asymmetrical: Men and women face different risks when they sleep together. Men risk committing resources to care for children that may not be their own. Women risk being abandoned and left to care for a fatherless child. Marriage developed to minimize these risks. That's why no society - even among those that did have a social role for some expressions of male homosexuality - has instituted same-sex marriage until the past decade.

Second, marriage is procreative because marriage is society's way of ensuring that as many children as possible have mothers and fathers. A couple who cannot conceive children on their own can adopt, thus providing children with a mother and a father. Two men, however, can't replace a mother, nor can two women replace a father.

We see this most obviously in the inner cities, where many families consist of a grandmother, a mother and a child. Here, two women struggle to raise a child without a father. And the children say, again and again, that they need daddies. The sons say they had no one to teach them how to be men. The daughters say they had no one to teach them what to look for in a man, what role a man should play in the family.

Same-sex marriage says that men - fathers - are unnecessary in forming a family. This is one of the most detrimental messages a society can send.

At first glance, the Massachusetts court seemed to have left a loophole for the Legislature: The court's ruling would not take effect for 180 days. In that time, court-watchers initially speculated, the legislature could seek to amend the Massachusetts Constitution, defining marriage as the union of one man and one woman. Such an amendment would override the court's decision.

But the Massachusetts constitution is difficult to amend, and it is impossible to amend in 180 days. So that route is out.

The Goodridge decision makes the question of the Federal Marriage Amendment all the more pressing. This amendment would prevent both courts and legislatures from enacting same-sex marriage. The most basic version of this amendment would read, "Marriage in America is and shall be exclusively the union of one woman and one man."

Amending the Constitution of the United States is a major project and not a step to be taken lightly. But if we do not take this step, we may lose the fundamental building block of society.

To tell you the truth, I don't really care one way or the other. If a state wants to legalize gay marriage, fine. If a court in a state finds the ban on gay marriage unconstitutional in that state, fine. I just don't want to see our national Constitution amended to ban gay marriage. To me there is nothing conservative about amending the Constitution. It's a big thing to go changing our Constitution, and it shouldn't be done for petty reasons such as this.

Personally, I'm not big on legislating morality on private, personal issues such as this. Legislating against murder is one thing, legislating against something like gay marriage is another entirely. I don't care if you think homosexuality is wrong. I certainly don't think it is "right" either. But the big difference between you and me is that I just don't care about little things like this. It's not for me to tell my neighbor that his love for another man is wrong. And in fact, the person who has lived across the street from me for close to fifteen years is a gay man. For the first eleven years, he had a "mate" living with him, but that fellow died of cancer. He now has a new live in buddy. I don't like to think about what they do behind closed doors, but I have no problem with them as neighbors. They've been excellent neighbors, far better than many others I've had the displeasure of living near.

People worry so much about what message government may or may not be sending with their laws. The reality is that nobody listens much to government's subtle little messages. On issues like this nobody much cares what government thinks.

Is government sending a message that gay relationships are wrong? Should they? Would everyone all of the sudden think gay relationships are perfectly moral and okay if government allowed gay marriage? I don't think so. Most would still think they are wrong. Most Christians would still look upon them as sinful unions entered into without God's blessings.

What are you so worried about? Are you afraid everyone is going to turn gay? I assure you, my revulsion to the notion of gay sex would not change if gay marriage was no longer illegal, and I doubt your's would either.

People just need to live and let live.

"The only reason conservatives are pushing for a Constitutional amendment protecting marriage is because the gay activists are trying to destroy marriage."

What a load of crap. Why on earth would these people want to destroy marriage? They just want to be included with the rest of us.

Look, these gay rights extremists annoy me too, just like these nut-cases who insist on attacking Christianity at every turn. I'm personally leery of mixing religion with government, but all these crazy lawsuits like the one a while back attacking some poor kid for mentioning Jesus in her valedictorian speech and some of these other attacks by these atheist extremists do really bother me.

But I don't know about the rest of you, but I'm also cognizant of ultra right wing extremism too. This certainly does exist. And I don't think of it all as being conservative. In fact, much of it does not appear to me to have its roots in conservatism. It's zealotry cloaked under the label of conservatism and it's something I want no part of.

The thought of Constitutional amendments to secure the imposition of moral biases on free Americans doesn't sit well with me. We have more than enough restrictive laws as it is.

A Constitutional amendment protecting marriage - keeping the same meaning it has had throughout the history of this country - is not imposing moral biases.

When the SCOTUS ruled in favor of homosexual sodomy this summer, Rick Santorum predicted it would lead to gay marriage, and other anomolies, because if there are no rules about what is beyond the acceptable limit in sexuality, what gauge is there? The gay activists and their handmaidens all said, No no no, it won't lead to gay marraige or anything else. There is no slippery slope.

Well, well, well - here we have homosexuals wanting to change the meaning of marriage - and even a polygamist is now on the bandwagon. Is NAMBLA far behind? There are many socially and academically respected scholars and psychologists who argue that some sex between adults and children is beneficial for children. It's on the horizon. Peter Singer - a highly respected professer at Princeton University says that adult/child sex can be defensible, and even human/animal sex is fine.

What do you think of that?

"If homosexuals did what they do in the privacy of their own homes, I could give a flying big f. But they are intent on making their business MY business, and I resent that. They have no right to re-make the world into one that suits their strange sexual desires."

I have to admit that I am bothered by gay activists myself. I wish there were no gay marches. I wish there were not gays making out on TV. My kids caught a glimpse of Brittney Spears and Madonna kissing last night because I was flipping channels on my slow digital cable system and just as I happened to flip through a channel that scene appeared right in the few second windows before the next channel cycled in. Brittney and Madonna may or may not be gay, but still it's awkward trying to explain that type of kiss to a three year old and an eight year old.

I wonder though if we just let these people have these basic things that they want, if gay activism would lose purpose and more or less fade away. I mean, what's the point in marching if you have what you want? If we all stopped making such a big deal out of it, it wouldn't be such a big deal.

Right now gays have a cause. They have reason to march around with signs and file obnoxious lawsuits. It seems to me that those of you who fight these people with such vigor are just exasperating the problem you seek to alleviate. These gay rights issues are going to have a prominent place in the public discourse as long as there is the perception by a large percentage of our population that gays are being treated poorly. Let them have the big things that they want like the right to marry in some sort of civil union and eventually the majority will get bored with gay activists who will no longer have pressing issues that carry much weight with the broader population.

Why on earth would these people want to destroy marriage? They just want to be included with the rest of us.

I have some interesting statements from homosexual activists along those lines. About the only one I can find now is:

Homosexual activist Michelangelo Signorile, who writes periodically for The New York Times, summarizes the agenda in OUT magazine:
...to fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely, to demand the right to marry not as a way of adhering to society's moral codes, but rather to debunk a myth and radically alter an archaic institution...The most subversive action lesbian and gay men can undertake--and one that would perhaps benefit all of society--is to transform the notion of family entirely." "Its the final tool with which to dismantle all sodomy statues, get education about homosexuality and AIDS into the public schools and in short to usher in a sea change in how society views and treats us.

You might find this of interest as well:

The Homosexual Propaganda and Media Manipulation Game...

Manipulation is key with homosexual activists. Checkout a list of links on the subject:

Homosexuality and Manipulation

I'm also cognizant of ultra right wing extremism too.

As I see it, the GHF (God Hates F...) group falls into that category. I don't know anybody on this forum that falls into that category. We're interested in the truth of the matter and deal in what the experts say.

I think the world would have a different perspective on homosexuality if the facts of the matter were better known.

Actually there is a big push in academia for acceptance of adult/child sex. Heck, the ACLU is defending NAMBLA right now, I think in Boston. There was some gal in the midwest - a professor - who wrote a book published by the university she teaches at or works for (can't remember the state) which ran into two printings, in which she advocates child/adult sex. It is definitely on the horizon.

Not "marriage" between children and adults, but legality and social acceptance for "consensual relationships". Eliminating the age of consent has been a goal of gay activists since their published platform of goals in 1972. They have since changed their stated goal to "lowering" the age of consent, since eliminating it was too outrageous for us backwards primitives at the time.

If we all stopped making such a big deal out of it, it wouldn't be such a big deal.

If the gay activists were like you and me, then your assumption would make sense. Unfortunately, they don't want to be allowed to "be who they are". They don't want me and others like me to be who WE are. They don't want acceptance, they want to silence anyone who disagrees with them - look at hatespeech laws. It's not about tolerance - they can't tolerate any disagreement with their stated agenda (note the quote scripter just posted from Michelangelo Signorile).

Right now gays have a cause. They have reason to march around with signs and file obnoxious lawsuits. It seems to me that those of you who fight these people with such vigor are just exasperating the problem you seek to alleviate.

It's the typical liberal tactic - demand a ten, get a five, amp up and demand a ten again, get a five, and they keep doing it over and over again. They will not be satisfied with crumbs. The stated objective of the gay movement is to change society, not joining it.

Actually there is a big push in academia for acceptance of adult/child sex.

There's some of that documented here.

One of the articles you'll find at the above link is: Normalization of Pedophilia Growing, Experts Say

The following sites might make you lose your dinner so I won't make the URLS active:

http://www.glgarden.org/
http://www.freespirits.org/
http://home.uni-one.nl/hostroom/fcl/index2.html
http://www.nambla1.de/

The above are pedophile sites. I used to have a link to a course taught at San Fransisco University by a Mr. DeCecco (if I remember right) and the course was on the beneficial aspects of molesting children, or something along those lines.

I remember that professor's name. I wrote a letter to the editor (Chronicle) about him. Of course it wasn't printed. (Duh.) His class was mandatory - and he also was a contributing editor to the Dutch magazine or publication called, I recall, "Peda-something or other" - a professed pedophile publication. But the university deemed it ok because he only theoretically advocated pedophila, he hadn't been arrested or anything.

And that was over 11 years ago. I wonder if it is the same guy?

"Eliminating the age of consent has been a goal of gay activists since their published platform of goals in 1972. They have since changed their stated goal to "lowering" the age of consent, since eliminating it was too outrageous for us backwards primitives at the time."

I do not believe that. Certainly there will always be oddballs out there with strange causes, but that does not mean that all or even the majority of gays or "gay activists" want sex with children to be legal. You are making an unfair generalization.

I think you are reading too much into all of this. Just because some professor wrote a book and the ACLU is defending NAMBLA's rights does not mean that legalized sex with children is on the horizon. College professors are always writing stupid books and the ACLU is always standing up for the rights of unpopular organizations.

A "big push in academia," sheez, a couple of screwy professors publish some fringe element theoretical musings and you call it a "big push." I guarantee you that if you took a poll among college professors and asked how many are for sex between children and adults nearly all would say they are against that sort of thing. I have family members who are college professors who would be appalled at such a notion. I taught at a university for two years and I cannot imagine any of the people I worked with advocating such a thing.

I think you are wrong in your assessment. I wish you were right, but among psychologists there is a growing move to accept some child/adult sex.

You taught at a university - what school? (I mean that in the sense of was it psychology, engineering, etc.) The technical schools have fewer liberals than disciplines like history, psychology and the arts.

I have seen footage of "Gay Pride" parades with grown men dressed in black leather (here and there) holding chains, to which were attached little boys - with dog collars around their necks. And this was years ago.

I do think you are wrong, and I wish you weren't. Have you checked into scripter's links?
And as far as lowering the age of consent (and their previous goal to eliminate it) I have read their own publications and stated objectives. They aren't going to lie about their own goals.

I guarantee you that if you took a poll among college professors and asked how many are for sex between children and adults nearly all would say they are against that sort of thing.

It's late so I may not get this right, but I believe the APA recently (this year) stated pretty much the same thing DeCecco said. That is, adult/child sex may not be as harmful to children as first thought. After a public outcry, the APA responded and said something about how they didn't mean to endorse pedophilia. Still, damage was done and who knows what confused person is going to use that reasoning to molest a child.

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