A Victory for Gay Marriage

New York Times Editorial, 11/20/2003

"Without a doubt, this is the happiest day of our lives," declared Gloria Bailey, a 62-year-old Cape Cod resident.  Ms. Bailey and her partner were two of the plaintiffs in this week's landmark Massachusetts ruling that says gay people have the right to marry.  When the rights of disadvantaged groups are newly recognized, there is often opposition, some of it fierce,
and the road ahead may be rough.  But like the early court rulings striking down segregation, this has the feel of a legal revolution beginning.

The Supreme Court has begun to find privacy and equal protection rights for gays in the federal Constitution, notably earlier this year, when it struck down Texas' sodomy law.  But the Massachusetts court, observing that its state constitution "is, if anything, more protective of individual liberty and equality," leapfrogged over the federal courts, ruling that at least in Massachusetts, gay equality extends to marriage.

The court's logic is persuasive.  It notes that marriage is both a social institution and a privileged legal status for things like child custody and survivor benefits.  Denying gays the benefits of marriage deprives them of equal protection.  The court rejected the state's arguments, including its chief one, that "marriage's primary purpose is procreation."  Heterosexuals can marry, the court noted, even if they are unable to have children.  The ban is simply about prejudice, the court concluded, much like state laws barring interracial marriage, which lasted
until 1967, when the Supreme Court struck them down in Loving v. Virginia.

This week's decision has been greeted with both dismay and joy in Massachusetts and the nation.  Gov. Mitt Romney has called for a state constitutional amendment overturning it.  But such an amendment cannot be put on the ballot until November 2006, and the ruling's supporters say that by then the voters will have seen that gay marriage does no harm.  The
decision is also likely to reverberate in the presidential election. President Bush was quick to criticize it, while most Democratic candidates expressed support for gay civil unions, which provide most of the benefits of marriage.  Some opponents of gay marriage are talking about amending the federal Constitution to ban it.  The Constitution has never been amended to
take away minority rights, and now would be a poor time to start.

In recent years, support for gay rights has sharply increased.  A newly released poll found that although most Americans oppose gay marriage, views vary a lot by age.  Older people oppose it 4 to 1, while young respondents are equally divided.  That strongly suggests that eventually the views expressed by the Massachusetts court will be widely held.  And
Americans will come to regard this week's decision as they now do Loving v. Virginia - as a statement of the obvious.

'Freedom to Marry Rings' image upper right © H. Mitchell.