NOW THAT we've arrived at the wedding, can we take a minute to describe how the laws walked us down this aisle? After all, the laws emerged from two different backgrounds and went down two separate paths. Then they came together before the justice of the peace, as groom and groom, bride and bride.
On Tuesday, the Massachusetts high court ruled that gay couples have the right to marry. In the same decision, the justices redefined both gay rights and marriage. And yet for all the hoorays and all the boos, the decision may be as evolutionary as it is historic.
Consider first the path of gay rights. For generations, the state labeled some lovers as criminals. When the last laws against sodomy finally fell this year, Supreme Court Justice Antonin Scalia dissented. He argued that if moral disapproval wasn't enough to make sodomy illegal, nothing was: "What justification could there possible be for denying the benefits of marriage to homosexual couples?"
He was bitter -- and right. The statutes that made homosexuals outlaws had to end before they could become in-laws.
Meanwhile, marriage was on its own winding path. Historically, a woman who entered the institution lost her legal identity at the altar. Until 20 years ago a husband was still exempt from rape charges in New York because a wife didn't have the right to say no.
In 1965, the state lost the power to control sex within marriage when the Supreme Court overturned a Connecticut ban on selling contraceptives to couples. In 1967, the state lost its power to define the race of the person you could marry when the court overruled the last laws banning interracial marriage. And gradually throughout the 1970s, the state turned over the right to decide why a marriage could end. A wave of no-fault divorce laws gave that decision to the people.
Each one of these changes -- ending the subordination of wives, ending race restrictions, decoupling marriage from decisions about children, sex, and divorce -- set off alarm bells. Marriage today is less about an institution and more about a relationship, less about the state, more about individuals.
The evolution of gay rights and marriage laws now merge into the definition of marriage written by the Massachusetts court: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
In an elegant decision, Chief Justice Margaret Marshall, who grew up fighting apartheid in her native South Africa, echoed the reasoning that permitted interracial marriages: "The right to marry means little if it does not include the right to marry the person of one's choice." Marshall wrote that "civil marriage anchors an ordered society by encouraging stable relationships over transient ones." But what's sexual orientation got to do with it? The decision carefully lists the reasons to ban gay marriage and finds them unreasonable.
Fertility? Why, the state allows people who aren't fertile, indeed people on their deathbeds, to marry. For the raising of children? Why, if anything, marriage would help gay couples with children, like many plaintiffs in this case. By the end, the only reason left to ban gay marriage was moral disapproval -- or what's also known as prejudice. But the Massachusetts Constitution, ruled the court, "forbids the creation of second-class citizens."
This case doesn't end the argument any more than the decisions about interracial marriage or a wife's place ended those debates. The state Legislature has 180 days but not much wiggle room to get its marriage laws in line. There is talk already of a state constitutional amendment. And if couples marry in Massachusetts and seek recognition elsewhere, the issue could go to the Supreme Court.
Gay marriage may indeed end up at the center of the culture war in the 2004 campaign. Or it may simply mark the moment in a long social change.
It's been a lengthy trip down the aisle. But a friend who applauded this decision added: "I don't think I would have said that five years ago." In the past year, Bride's magazine featured two brides. The love that "dared not speak its name" now announces it in the newspaper. If this is a wedge issue, it seems to mostly divide generations.
"The plaintiffs seek only to be married, not to undermine the institution of civil marriage," writes Justice Marshall. Marriage vows are not diminished but enlarged in a redefinition that seems both new and familiar: "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of ideals of mutuality, companionship, intimacy, fidelity, and family."
In the end, this case may say less about the fragility of marriage than about its endurance.
Signing away our freedoms
Ellen Goodman
BOSTON -- This is a tale of two signatures, each bearing the Bush penmanship. It's a tale of two bills that allow legislatures to trump a family, a doctor, a patient, a court. And it's a tale of what it means, when push comes to shove, to lose the right to make complicated decisions about life and death.
The first of these signatures, Jeb Bush, is on a law rushed through the Florida House and Senate with all the speed and none of the expertise of a trauma team in an emergency room.
The object of their attention was Terri Schiavo, a young woman who suffered a heart attack 13 years ago that left her in a condition doctors describe, in a terrible dehumanized phrase, as a persistent vegetative state. At 26, Terri had no living will. Without any written words, her husband and parents gradually became enemies, bitter opponents in a struggle over her fate.
On one side, the devastated parents believed that she could, would, should live -- even with a feeding tube. They took videos of their daughter apparently smiling, grunting, moaning, and showed them to the country, pleading her case.
On the other side, Terri's husband, Michael, believed that his wife didn't want to live in this state. Indeed, the doctors said her smiles were reflexes, not conscious emotions. Michael believed he was following his wife's desire -- not his own -- to end life. The courts, one after another, affirmed his view of her wishes.
But when the feeding tube was removed, when the death scene became a national spectacle, the Florida Legislature did something unprecedented. It gave a politician the power to override Terri Schiavo's own wishes, as the courts saw them, and have the tube reinserted.
Now imagine, if you will, having a state official control the fate of your wife or yourself? Even the state Senate president who voted to give this right to Jeb Bush had second thoughts. "I keep on thinking," he said, "what if Terri didn't want this to happen at all?" What indeed?
Meanwhile in Washington, in some odd synchrony, a bill banning the so-called "partial-birth" abortion finally passed Congress. It will be signed with great fanfare and political hoopla by Brother George when he gets back to the White House.
A ban that took eight years to crawl its way through the Capitol is the great PR victory for the right-to-life movement. From the beginning, it was a deliberate effort to change the terms of the abortion debate.
By the early 1990s, the abortion rights movement had successfully shaped the political argument on abortion around the question: Who Decides? To this day, when pollsters ask whether a woman and her doctor should make this hard choice, or the government should, 80 percent of all Americans -- including half of those who call themselves pro-life -- side with the woman.
So the right-to-lifers regeared the debate to an ambivalent middle uneasy with later abortions. With gruesome details and inflammatory language, they began a bald effort to ban abortion one procedure at a time.
The ban of one small procedure might not sound alarming. But the telling moment in this long debate was when the anti-abortion lobby refused to permit an exemption to protect the health of the woman. So now we have a law telling doctors for the first time that they cannot pick the procedure they regard as safest for the patient. Congress, not the doctor, will say which treatment is legal and which is a prescription for jail.
Stories like these, stories about the end of life and the beginning of life, raise grave moral questions. Both of these debates, over pregnant women and comatose patients, take place in the touchy gray areas: What is consciousness? What is a woman required to sacrifice for a fetus?
These two tales also remind us of life experiences we hope never to face. The gasp of a woman who finds that her pregnancy has gone terribly awry. The pain of a family with a parent, child, stuck in that horrific space between life and death.
Will these signature bills pass constitutional muster? Maybe not. Not yet. Indeed, Congress knowingly passed a law similar to a Nebraska law that the Supreme Court had already declared too broad, too vague.
But they remind us that the "right to decide" is not some political slogan, not some second-tier ethical concern. It's at the center of personal freedom.
It is deeply troubling moment when a stranger, a governor, a legislator, a president is given the power to write the end of our ethical, medical, family tales. Yes, this is how we lose our freedoms: One signature at a time.
Ellen Goodman's e-mail address is ellengoodman@globe.com.
Ellen, it is not the job of four people with robes to write the definition of marriage. What the heck qualifies these judges for that task? The definition was already unambiguously written into the law, to interpret which is their primary task.
EG's column uses the same sophistry as Marshall's majority opinion. She accepts and promotes the Marxist claptrap that it is the redistribution of wealth that gives individuals their choices. Since any moral disapproval by We the People is repudiated as mere prejudice, law must now be drained of our judgments, so that coercion of virtue becomes the province of judges.
Her column claims to trace two paths, gay rights, and the definition of marriage. She tries to paint them as converging. But she gives short shrift to gay rights, citing only the sodomy law decision. If the only problem for gays were those silly laws that were virtually never enforced, it sure doesn't look much like the struggle that African-Americans had to endure to get civil rights.
No, but the implication is that the inability to get marriage benefits is equated with Jim Crow.
But she uses the most intellectual dishonesty on the other path: describing an illusory "evolution" of civil marriage. In fact, civil marriage has not changed in definition, purpose, or in its main legal structures. She listed only decriminalizations of certain behaviors and changes in divorce law, as if these refinements were redefining what marriage is all about.
To peddle the lie that marriage is rightfully about the satisfaction of adults and not the begetting and raising of children in stable families embraces the rot which is slowly destroying Western Europe. I refer to the triumph of secular humanism and the concomitant marginalization of the Judeo-Christian tradition. Pure poison.