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.

The fourth option is to keep pushing for more conservative judges and eventually the pendulum will swing back to where it is more to your liking and probably too far for my tastes.

I agree that the far left has overused the court system in trying to push their agenda. But I think both the far left and the far right try equally hard to install judges that they believe will render decisions more to their liking. I also think that even "conservative" judges are always going to make rulings that might look moderate and even liberal to many. Putting on those robes and given the lofty responsibility of interpreting our laws has an effect on people. Even the most conservative often make decisions guided by principles of fairness, tolerance and a strong sense that Constitutional rights should be protected and freedoms should be guarded and even in some instances expanded to the limits of our Constitution.

I'm not as bothered as you are by the "liberal judiciary." I do not believe that 80% of the people making up the judiciary, the media, and the academic world strive for a sexually libertine and secularist society. It may seem that way to you, but that is not the case. I think that is over-hyped rhetoric by the far right. While there certainly are far left kooks out there pushing extreme agendas, I don't see the same vast left wing conspiracy you see. The fact of the matter is that those in the media, the judiciary and in higher education tend to be educated and educated people tend to be more liberal on social issues than uneducated people. They do tend to be egalitarian. They've usually been exposed to more diversity than less educated people and are more likely to be understanding and tolerant of others and others' beliefs. That does not make them all far left extremists who want to promote alternative sexual lifestyles, murder babies and drive Christianity out of America.

Being tolerant and valuing freedom does not make one less conservative. Seeking to amend the Constitution in order to place further limitations on the states and further concentrate power in the federal government is in no way a conservative goal. A radical shift in the power structure of our nation by killing the authority of one of our three branches of government would not make our nation more conservative or more free. It would seriously diminish the safeguards that would protect us in the future from more sinister administrations who would abuse the power if they had it.

Our system may not be perfect, but the judicial branch of government provides a critical check and balance against the potential abuses of the other branches of government.

#####The fourth option is to keep pushing for more conservative judges and eventually the pendulum will swing back to where it is more to your liking and probably too far for my tastes.#####

True, I agree.

#####I agree that the far left has overused the court system in trying to push their agenda. But I think both the far left and the far right try equally hard to install judges that they believe will render decisions more to their liking.#####

I would say there are no right-wing judges on the court that are comparable to the left-wingers. For example, no judge on the U.S. Supreme Court would order a state to implement the death penalty, or ban abortion, or ban sodomy. When we refer to conservative judges (Scalia, Thomas, etc.) we generally mean judges who don't impose liberalism on the country from the bench. In other words, there are judges who force liberalism on us, and judges who don't. We call the former liberals and the latter conservatives, but the latter are not really ideological mirror images of the former. To be that, they would have to seek to use judicial power to force states to enact conservative agenda items (just as liberal judges force states to enact liberal agenda items). No judges on the court desire to order, for example, Vermont to repeal its gay civil unions law, or Massachusetts to implement the death penalty.

#####I also think that even "conservative" judges are always going to make rulings that might look moderate and even liberal to many. Putting on those robes and given the lofty responsibility of interpreting our laws has an effect on people.#####

I think a better way of putting it is that some so-called conservative judges get co-opted once in power. Anthony Kennedy gets fawning editorials written about him every time he tracks to left. The intellectually lazy simply follow the herd, and in Washington the herd moves left. I work at a university, and I'm well aware of the "soft" intimidation that greets conservatives around campus. It's easier for some to just join the herd and avoid the ridicule. This is why judges rarely, if ever, turn out to be more conservative than they were predicted to be at confirmation. The political, legal, and social culture surrounding the judiciary pushes them leftward.

#####Even the most conservative often make decisions guided by principles of fairness, tolerance and a strong sense that Constitutional rights should be protected and freedoms should be guarded and even in some instances expanded to the limits of our Constitution.#####

The problem with your argument is that it presupposes that liberal court rulings expand freedom and tolerance. This is a common idea in our society, because the dominant media only present one side of most issues to any significant degree. Take abortion as an example. We're told Roe vs. Wade expanded freedom and tolerance. But it sure didn't do so for the unborn child. Not to mention that it robbed millions of Americans of the right to self-government on an issue that had resided with the voters from the founding of the Republic until 1973. And, it led to further judicial fiats in several states ordering taxpayers to pay for abortions, stripping parents of rights in regard to their minor daughters, and so forth.

#####I'm not as bothered as you are by the "liberal judiciary." I do not believe that 80% of the people making up the judiciary, the media, and the academic world strive for a sexually libertine and secularist society. It may seem that way to you, but that is not the case. I think that is over-hyped rhetoric by the far right.#####

Well, I did throw out the 80% as a number that can't be quantified. Suffice it to say, there are far more liberals on the courts than conservatives, and as mentioned earlier, there are virtually no conservatives trying to legislate from the bench. The judges we call conservative are the ones who don't use their authority to impose liberalism (as opposed to those who do). As for the media and academic communities, at the high levels 80% may be a conservative estimate for the percentage of lefties there.

#####While there certainly are far left kooks out there pushing extreme agendas, I don't see the same vast left wing conspiracy you see. The fact of the matter is that those in the media, the judiciary and in higher education tend to be educated and educated people tend to be more liberal on social issues than uneducated people. They do tend to be egalitarian. They've usually been exposed to more diversity than less educated people and are more likely to be understanding and tolerant of others and others' beliefs.#####

Want to wager what would happen if we brought back literacy tests for voters? Don't bet on the Dems picking up seats! :-)

I've never noticed the people you describe as being particularly tolerant. You see, true tolerance is a two way street, but what we get from leftist elites is a one way street. So, tolerance means we don't bash gays, but we do bash unborn babies. It means a Nativity scene can't be put in the public square, but tax money can be used to finance art that attacks and ridicules Christianity. Tolerance means we accept gay marriage, and then submit to laws which force us to rent our apartment to gay couples even if we morally disapprove of homosexual conduct. In other words, no tolerance is expected from liberals, only from conservatives. The most intolerant people prowling our culture today aren't pro-lifers or people who oppose gay marriage, but people like Margaret Marshall who see a multi-thousand year old cultural institution, decide they don't like it, and from on high order us to alter it to suit their egalitarian fantasies.

What's befallen us isn't a leftist conspiracy. It's simply something that's evolved with time. Over time the left has solidified its control of the courts and has learned to use them to further their agenda on issues where the public disagrees with them.

#####Being tolerant and valuing freedom does not make one less conservative.#####

True, but I don't regard liberal judges as people who meet the criteria you describe. I think judges like Margaret Marshall and Harry Blackmun value neither tolerance nor freedom. To the extent they invoke either, it's a smoke screen masking the one way street I described earlier.

#####Seeking to amend the Constitution in order to place further limitations on the states and further concentrate power in the federal government is in no way a conservative goal.#####

You raise a relevant point here, but it shows the bind we're in. Gay marriage should not be a federal issue, nor should abortion, sodomy laws, or any number of other matters. The problem is, leftist judges have made them federal issues (or, in the case of gay marriage, appear poised to do so). So what do we do in response to unconstitutional aggression by the federal courts? You seem to be saying that we should accept federal judicial hegemony over the states because the aleternative, a federal marriage amendment, would dictate terms to the states.

Might I paraphrase a line from the village elder in Seven Samurai: "Don't worry about your beard when your head is about to be chopped off".

Your position is akin to arguing that force can't be used to evict an evading army from a demilitarized zone, on the grounds that the force used would violate the demilitarized status of the zone in question. But once a demilitarized zone is invaded, it's no longer demilitarized. Once Roe came down, abortion was no longer a state issue. The same will be true when Anthony Kennedy pens some sociological claptrap imposing gay marriage on the fifty states via a federal judicial fiat.

#####A radical shift in the power structure of our nation by killing the authority of one of our three branches of government would not make our nation more conservative or more free. It would seriously diminish the safeguards that would protect us in the future from more sinister administrations who would abuse the power if they had it.#####

Well, I'll take my chances with the two branches of government which are elected. The judiciary has created a loophole in our federalist system which allows them to act totally unchecked against the states. These rulings (Roe, sodomy, Massachusetts gay marriage, etc.) are so far outside the context of anything in the written constitutions in question as to themselves be tantamount to a coup against the people of the United States.

#####Our system may not be perfect, but the judicial branch of government provides a critical check and balance against the potential abuses of the other branches of government.#####

True as intended, but the courts have long since moved beyond that role into one of making law and acting as an on-going constitutional convention, one in which only people of a certain ideological stripe are invited. Can you imagine a federal court ruling which, for example, orders a state to ban abortion? You can't, because no judge on the court would do that. Not Kennedy, not Souter, not Scalia. No one. Only the left is permitted to behave it such a manner, and then mask it as "giving new meaning to a living constitution".

My whole point is that court decisions aimed at providing "protection" for certain groups of people may sound benevolent on their face, but in fact they result in a more totalitarian government than you had before the decision was rendered.

That's exactly what happened with the Civil Rights Act of 1964. In only a couple of decades, we went from a situation where the Federal government legislated "equal protection under the law" for all people, to one where the Federal government could send an Equal Employment Opportunity Commission representative to your place of business to issue a citation against you for failing to have enough people of certain "protected classes" working for you.

You've also missed a very important point regarding the Constitutional amendment issue. The purpose of a Constitutional amendment on the Federal level is not to "impose morality" on people -- it's to prevent the court or legislature in one state from using its own power to force its will on other sovereign states. By law, a marriage in one state is presumed to be legitimate in all other states. So a state like Alabama or Utah that has no interest in recognizing homosexual marriages could effectively be forced to do so just because one stae (Massachusetts) decided to recognize them.

This is why I use the hypothetical case of polygamists to make the point. There is absolutely no reason why a state court cannot recognize polygamy as a valid definition of "marriage" (in fact, as I've pointed out earlier, the Supreme Judicial Court of Massachusetts would have to rule its recent ruling on homosexual marriage invalid in order to reject a petition for recognition by a polygamist). And once that court does this, then your state will have to recognize the marriage as valid.

This may sound like nothing more than a libertarian "live and let live" issue, but your home state will be thrown into utter chaos the first time a public employee goes to another state to get "married" in this manner, then comes back and demands to have all of his "spouses" (three, four, or -- who knows -- maybe 4,000) covered by taxpayer-funded insurance and pension plans.

But when the smoke all clears, things just wouldn't be that much different than they are now except it will be more fair and free here and the ever vocal gay rights movement will eventually run out of things to gripe about and most of them will just go home.

If you really believe that, then you are terribly naive. That's why I used the parallel example of the modern "civil rights" movement. Minorities in this country have very little to complain about, but that doesn't prevent a number of them from creating an entire industry out of filing idiotic lawsuits, pursuing grievances where none exist, etc.

You probably believe that allowing gay marriage would just be a first step into much worse moral depravity in our society.

If you go back through my posts on this thread, you'll notice that I didn't make a single statement of moral judgement on any of them. The argument against gay marriage can stand up on legal and practical grounds without ever making a statement about public morality.

The reality is that aside from any moral issues that people might feel are at stake, homosexual conduct is inherently "disordered" in nature. This is why, for example, homosexuals in general (men in particular) have a higher incidence of almost any physical or psychiatric pathology that you can think of (drug abuse, alcoholism, most contagious diseases, etc.). That's not a value judgement -- that's a statement of fact.

The response to this kind of situation is not to "shove them in a closet," so to speak -- but nor is it appropriate to pretend that there is anything normal about it. The person who picks a drug addict up off the street, takes him home and gives him a warm meal and a place to sleep, and then returns him back to his place on the street is not doing him any favors -- in fact, he is enabling the drug addict to continue on a very destructive path.

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