A BOSTON GLOBE EDITORIAL
For gay marriage
7/8/2003
 OR
200 YEARS American society has drawn a steadily expanding circle of
rights: the rights of blacks, then women, and then 18-year-olds to vote;
of minorities, women, gays, and the physically disabled to be free from
discrimination; of single mothers, adoptive parents, and other
nontraditional families to receive government benefits. In the 1967 case
Loving v. Virginia, the US Supreme Court ruled that the right to marry
could not be restricted by race. In 1993 the Massachusetts Supreme
Judicial Court ruled that the right to adopt children could not be denied
on the basis of sexual orientation. In 1999 the Vermont Supreme Court
found that the benefits of legal marriage could not be withheld from
lesbian and gay couples. Now seven same-sex couples have petitioned the
SJC for the right to marry under civil law. Their stories of courtship and
commitment are so ordinary, and their claim to equal benefits so
compelling, that it seems inevitable the circle of rights will eventually
widen to enfold them as well. We think the SJC should say that day has
come.
The Massachusetts Constitution guarantees that ''equality under the law
shall not be denied or abridged because of sex, race, color, creed, or
national origin.'' The plaintiffs in the case before the SJC believe that
this declaration of rights means that the ''common benefits and
protections'' of marriage may not be denied to couples because they are
the same gender. For all the legal acrobatics offered by opponents, it is
hard to see how anything other than an animus toward gays and lesbians
prevents them from obtaining the same ''benefits and protections'' enjoyed
by heterosexual couples.
The arguments presented by the opposition -- primarily the
Massachusetts attorney general, supported by several accompanying briefs
-- boil down to three. First, opponents argue that the state has an
interest in limiting marriage to heterosexuals because such arrangements
better advance the ''main object'' of marriage -- that is, procreation and
child-rearing. Aside from the insult implied to all marriages that don't
include children, the SJC has already recognized that gay parents can
bear, adopt, and raise children, and the Legislature has affirmed that by
passing laws about the care of children from such unions. It is a logical
contortion to define the primary function of marriage as child-rearing, to
allow gay couples to perform that function, then to deny them the right to
form a marriage.
'Grievous' violation
Opponents also say that denying a
marriage license to same-sex couples, while possibly discriminatory, is
not a ''sufficiently grievous'' constitutional violation to require the
court's interference with the legislative branch. Tell that to Hillary
Goodridge, one of the plaintiffs, whose health care proxy document was
little help when her partner of 15 years gave birth and she tried to see
her newborn daughter in a neonatal intensive care unit. Or David Wilson,
who was treated as a stranger by emergency medical personnel when his
partner of 13 years suffered a fatal heart attack.
Finally, opponents say the Legislature should decide all issues dealing
with marriage licenses. But the court is being asked for its opinion on a
constitutional matter of fundamental rights -- its proper purview -- and
it should deliver such an opinion. The Legislature may be asked, as in
Vermont, to sort out the specific remedy. Or the SJC could simply declare
that marriages between two individuals of the same gender are legal and
valid.
It is worth repeating that these are civil marriages. No one is asking
any religious organization to sanctify, or even recognize, these
unions.
A good model for the case before the SJC is Loving v. Virginia, which
ruled almost 40 years ago that bans on interracial marriage are
unconstitutional. It may be difficult to imagine a time when interracial
marriage was considered an abomination by much of society and was
specifically outlawed by many states, just as some day it will be hard to
imagine that gay couples were once ostracized simply for trying to form
stable families. In Loving, the Supreme Court said that constitutional
rights must be vindicated despite a long history of laws to the contrary.
So too with the right of same-sex couples to marry.
A social institution
It is true that most people still
view marriage as an arrangement between a man and a woman. The traditional
definition of marriage as a social institution designed to promote
child-bearing and child-rearing is grounded in distinct gender roles that
were not just socially but legally imposed for much of American history.
But society, and the law, have already greatly expanded the definition of
family, and civil marriage has been redefined as a partnership of equals.
No doubt marriage between one man and one woman will continue to define
the vast majority of unions. But that needn't be the only acceptable
definition.
In Massachusetts as elsewhere, the everyday reality of same-sex
families is far ahead of the law. At Little League games, school plays,
and Thanksgiving dinners, gay and lesbian couples and parents are living
ordinary lives. They have made moral, emotional, and financial obligations
to each other and seek only the recognition and protections a legal
marriage affords. ''The desire to marry is grounded in the intangibles of
love, an enduring commitment and a shared journey through life,'' reads
the plaintiff statement to the SJC. It is time to extend these rights --
and responsibilities -- to all Americans.
This story ran on page A18 of the Boston Globe on
7/8/2003.
© Copyright 2003
Globe Newspaper Company.
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