Posted on 12/03/2003 6:52:34 PM PST by 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.
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I need to find a 90+ year old single person who is willing to get "married" to one of his or her own grandchildren or great-grandchildren. Once the Court's own ruling in this case is used to justify a marriage between family members, we can hasten the demise of Social Security and other pension funds by providing widows' survivor benefits to someone who may very well collect them for 70+ years.
A kindly grandfather might want to marry his granddaughter just so she can have his social security benefits, starting at, I dunno, age 20? Who could it hurt???
Laws against polygamy should also be challenged, because if the Massachusetts law restricting marriage to a man and a woman is "arbitrary" according to the Supreme Judicial Court of Masschusetts, then any law restricting marriage to only two people is also arbitrary.
Law enforcement will never be the same once the entire Soprano crime family gets married to each other and can claim spousal immunity for everyone they do business with.
Good point.
I thought I read something about that recently. I'm not sure but it could be discussed in this Weekly Standard article: Massachusetts vs. Marriage. I gotta run and can't check at the moment.
No, only marriages subsequent to the passage of the federal act. Ex post facto laws are constitutionally proscribed, so all marriages that occured before legal remedy would stand.
Homosexuals make up only 2% of the population
Anf they have:
Much shorter life expectancies
Much higher incidence of substance abuse problems
Much high incidence of domestic abuse
Much higher incidence of child sexual abuse
Much higher incidence of mental illness.
I think homosexuality is merely a form of mental illness (and it used to be categorized as such). It's not so much a question of "Why do Conservatives think it's wrong? All of the above show why it's wrong. The real question is: Why would we want our government to declare it "right"?
TKDietz, just wait and see, is not an option anymore. It's here NOW. . It's not going to lead to our society turning into one giant Sodom and Gomorrah.
Yes, my friend, it will.
I can't believe the pinpoint vision your opinion evidences. The only reason conservatives are pushing for a Constitutional amendment protecting marriage is because the gay activists are trying to destroy marriage. Conservatives are not busybodies trying to poke their noses in other peoples' business. They're trying to prevent others from doing just that. You must not have read much about the gay activists' poking their noses into, for instance, classrooms here in California - since, I think, 2001. (Mandatory gay-positive sex-ed, courtesy of Planned Parenthood and others, paid for by MY and others' tax dollars).
Or the gay activists and their handmaidens in the legislature creating crazy laws that force businesses to hire cross dressers, for instance.
Or the gay activists trying to destroy the Boy Scouts? Is that the act of conservative busybodies? People trying to protect adolescent boys from homosexuals are being nosy busybodies? They're just trying to maintain the moral standards which have, up until now, been the accepted norm.
What about in England, Canada and other countries which now enjoy "hatespeech" laws - is that conservatives nannying what other people say, or is it the gay activists minding other peoples' business, what they can say and what they can't say?
Give me a break. Conservatives are not the ones trying to poke their noses into other peoples' business, it's the gay activists and their assistants who are poking noses and who knows what else into OUR business.
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.
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