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

National Catholic Register ^ | November 30 - December 6, 2003 | EVE TUSHNET

[nickcarraway]

It's not every day a court gets to stand against all of recorded history.

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 Bait-and-Switch

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?

Procreation

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.

What Now?

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.

Eve Tushnet writes from Washington, D.C.

[little jeremiah]

Paidika.

That was it. Scripter, you are a veritable mine of information!

So it is the same perverted creep that was teaching years ago! Advocating child adult sex at a San Francisco university. Wonders will never cease.

TKDietz - I just read the classes you taught. The social liberals/child-sex advocates aren't usually in those departments.

[TKDietz]

"Clearly, you have absolutely no moral compass!"

I take offense to that remark. I am one of the most moral people you will ever meet. I am a good father, a good husband and I live my life in service to God and people less fortunate than I am.

[scripter]

I'm gone for the night. The categorical index may have something on the APA's statement...

[breakem]

People who want to molest children don't need the APA to tell them it's okay. Do you think people read this stuff to see if they have the go ahead?

I believe you are responding to a paper presented my 1 pysch and disavowed by the organization. Now you are using it as a cause celebre.

If someone can show that it happened otherwise, I'll stand corrected.

[nickcarraway]

You are missing the entire point. The courts are assuming authority that they don't have. And if we let them get away with it, they are going to keep doing it, and to a greater degree. If you want gay marriage, don't trample the constitution to get it, okay. I find it disturbing you so casually dismiss the Constitution and the rule of law.

Don't come crying to me when a court somewhere decides that someone has a RIGHT to your private property.

[TKDietz]

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

It most certainly would be an imposition of a moral bias or belief on others. It would also be a further extension of federal powers. I am against that sort of amendment on more levels than I have time to go into.

We just aren't going to agree on this and I'm tired of arguing. It's past my bed time.

I will say this though. The slippery slope that scares me more than anything is the direction faux conservatives are leading us in. Be very careful when considering any further amendments to our Constitution. Think long and hard before getting behind any further limitations on freedom in this country and any further expansion of the powers of our ever expanding federal government. Like my daddy used to say, "be careful what you wish for 'cause you just might get it."

I realize that you could say the same to me, but the way I look at it is that I always try to err on the side of freedom unless the rights of others are substantially affected. I'd rather freedom be our undoing than anything else. People should be free to do whatever they want as long as they don't cause significant unjustifiable harm to others or create a substantial risk of causing significant and unjustifiable harm to others.

[TKDietz]

I don't know that the Massachusetts' court assumed authority they don't have. I didn't read the case and I've never read their Constitution. I cannot offer an opinion as to whether the decision was proper given the applicable caselaw, statutes and Constitutional provisions. My main beef in this thread is that I do not believe an amendment to our national Constitution is appropriate under the circumstances.

I for one appreciate the system of checks in balances under which laws promulgated by the legislative branch are subject to judicial review. It sounds to me like you are the one who is casually dismissing this important safeguard. It worries me that I see what appears to be a push to do away with the power of the judiciary to determine the constitutionality of laws, which would further concentrate power in the legislative and ultimately the executive branch of government, thus greatly increasing the likelihood of abuses by government against the people.

Our system may be messy at times, and even downright dysfunctional for extended periods, but so long as we maintain our system of checks and balances our system should be self correcting. Concentrate too much power in any one branch of government and we risk throwing the whole thing permanently out of whack.

[John Valentine]

Look.

Gays CAN marry each other in every state of the union RIGHT NOW.

Just as long as one of the gays is a woman and the other one is a man. This is perfectly fair and does not discriminate.

It just recognizes that marriage is something with historlcal and biological significance that can't just be waived out of existence by a 7 or 9 people in black robes.

And, make no mistake, the court in Massachussetts did not order the expansion of marriage to include gays, it rediffined marriage out of existence.

[ppaul]

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[little jeremiah]

I hope you had a good night's sleep! Maybe we aren't inthat much disagreement. I am not in wholesale favor of tweaking the Constitution any more than you are. But the meaning of the Constitution is being, for want of a more polite word, raped - and has been for two generations. Society is becoming a "everything that isn't forbidden is mandatory" type centrally managed overlordship, with states and counties fiefdoms for the select.

Add to that the forced "acceptance" and mandated "tolerance" of every single sexual deviancy the mind of man can think up, and the rejection of every ghostly vestige of religion, and totalitarianism of an unbenign type is upon our heads, with most of the population asleep in front of their cable TVs.

[TKDietz]

"And, make no mistake, the court in Massachussetts did not order the expansion of marriage to include gays, it rediffined marriage out of existence."

That's just silly. If I lived in Massachusetts I would still feel married. People will still marry there. Nothing will change for the average person. You're just being melodramatic. Redefined marriage out of existence, what a load of crap.

[fiscally_right]

Fantastic. Spousal immunity currently only applies to conversations between only the two spouses. If 10 people were married to each other, than as long as they were talking to one of those 10 people, they'd be talking to a spouse who would have immunity.

[johnb838]

they should just ban all marriage in Mass.

I believe that if marriage is not only between a man and a woman, there should BE no such thing as marriage under the law. As a single person I accept the current status quo. I do NOT accept other groups being specially favored under the law.

[johnb838]

They're more than likely to lower the age of consent to 12 since they are so determined to follow the lead of the depraved nations of western europe. It is sick. And it IS a slippery slope.

[johnb838]

Clearly, it is high time to strike back at these tyrannical judges

I think I would be more inclined to support a constitutional amendment that would place some limitations on these federal judges appointed for life. Something to help control this relentless judicial activism. Even the so-called conservative judges that get appointed often succumb to the temptation to remake society via creative interpretation. This was NEVER intended by the founders. And we won't last long this way.

[biblewonk]

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.

This is disappointing BS. Marriage was institued by God it didn't develop on it's own in some sort of evolutionary process.

[puroresu]

Imagine a nation in which there is a sharp cultural divide in the population. One group believes in the traditional, time-tested moral values which built the nation. The other group believes in a sexually libertine, secularist, egalitarian society.

But the two sides are not equally large. The traditional group is about 60-65% of the population, while the libertine group is 35-40%. So the libertines are rarely able to enact their agenda through the normal legislative process, for the simple reason that they are outvoted and lose most elections, and they lose virtually all referenda.

But the libertines make a discovery. While they are only 35-40% of the population, they are upwards of 80% of the people making up the judiciary, the media, and the academic world. So they come up with a plan. Unable to enact their agenda through the constitutionally prescribed manner, they devise a strategy of using the judiciary to impose their beliefs and practices on society. They file lawsuits, claiming that existing constitutional provisions "mandate" that their agenda be enacted into law. With a wink and a nod at friendly, well-positioned, lifetime tenured judges, they ask them to "interpret" constitutional provisions ratified decades, or even centuries, ago as mandating legal abortion, legally recognized gay marriage, prohibitions on Nativity scenes in the town square, and many other agenda items.

Now, those constitutional provisions were never in anyone's wildest dreams intended to do such things, and they would have been soundly defeated if anyone had thought they would lead to such things. But, the libertines' allies in the media and academic community immediately go to work, propagandizing that these radical court rulings are "the law of the land", droning on and on about how "the constitution is whatever the judges say it is", and how we need a "living constitution" which "changes with the times".

So the libertines get away with what is, in effect, a coup against the constitution and the citizens of the United States. Conservatives scramble to try to muster the votes to amend the constitution to, let's say, ban gay marriage. But getting the super majorities to amend the constitution is difficult. The libertines usually have enough support to block such amendments from getting two-thirds in one house of congress, for example.

Of course, the libertines don't have to worry about gathering super majorities for amending the constitution. They accomplish their goals be having friendly judges "interpret" amendments ratified many years ago as requiring their agenda to be implemented. In other words, they aren't playing by the rules, but expect us to do just that. In fact, they even ridicule us as "extremists" for trying to amend the constitution by the prescribed method.

Meanwhile, as we're struggling to win enough elections to get a super majority for a constitutional amendment to ban gay marriage, the libertines are busy working on legal briefs to prod the Margaret Marshalls and Anthony Kennedys of the world to "interpret" some 19th century vaguely worded constitutional passage as legalizing polygamy, or mandating food stamps for illegal aliens, or banning public speeches against homosexuality as "hate speeches" which threaten "diversity".

That's exactly the situation we're in right now.

There are only three options:

1) Simply raise the white flag, bow to the courts as our dictators, and promise to obey all their edicts from now to eternity, effectively admitting we no longer live in a constitutional republic governed by the rule of law.

2) Amend the constitution to overturn the rulings, which is difficult and forces us to play by the very rules our opponents ignore. Can you imagine "liberals" trying to amend the constitution to mandate gay marriage? Why do that when it's much simpler to get a friendly, ideologically-driven leftist judge to "interpret" some ancient law as mandating it?

3) Start ignoring these illegal, abusive, and unconstitutional judicial fiats. One man alone can't do this. It needs to be a mass effort in which we, as a large segment of the population, simply assert our independence of our judicial lords and masters and refuse to obey them.

[Alberta's Child]

People just need to live and let live.

I don't have a problem with that. In fact, I think we can make a deal: Anyone who wants to get married can get married, no matter what kind of relationship they have involving any number of people.

In return, I expect people to "live and let live" when it comes to dealing with me, too. Which means the following:

1. I can restrict hiring at my company to only heterosexuals.

2. I can refuse to rent property to anyone who is not a heterosexual.

Is that a deal? Regardless of what YOU think, I can assure you that it is most certainly NOT a "deal" when it comes to the groups who are pursuing an agenda that includes the acceptance of "gay marriages."

[newgeezer]

Actually, when the article says, "marriage developed because sexual risk is asymmetrical," it swapped the cause and effect.

[TKDietz]

I don't have a problem with that.