Mass Appeal

On Tuesday, the Massachusetts Supreme Judicial Court finally ruled in the case of Goodridge, et al. v. Department of Public Health. In a four-three decision, the court found that denying gay citizens the right to marry was a violation of the state's constitution. The media and political coverage that followed focused almost exclusively on the potential political ramifications: How would the Democrats and President Bush respond, what would happen in the Massachusetts state legislature, and so on. There will be time for that discussion. But the ruling presents a more immediate question: Do its arguments stand up under scrutiny? Are equal rights in civil marriage something we should support or oppose?

Reading the decision, the conclusion is obvious. Even the dissenters essentially conceded the majority's superior reasoning on the case's substance, differing instead on the proper role of the courts in this arena. That is not a matter to be dismissed lightly, but those concerned about justices imposing their views on a reticent populace should take note of several polls suggesting that at least half of Massachusetts residents support gay marriage. And the key question is not about judicial overreach but whether there is any justification for refusing homosexuals the right to marry.

Social conservatives have argued that denying homosexuals license to marry does not violate their civil rights because they could choose to avoid discrimination: That is, they could choose to be gay, or they could choose to get married. But the court acknowledged, as the U.S. Supreme Court did earlier this year in Lawrence v. Texas, that homosexual citizens are not merely heterosexuals in disguise. The court upheld that sexual orientation is hardwired, not a matter of choice.

What remaining basis is there for denying homosexuals the right to civil marriage? The primary reason the state of Massachusetts gave is that marriage is linked to procreation, and, since gay couples cannot procreate by themselves, they are ineligible for marriage. But there are millions of married couples in this country who have no children and desire no children - and yet we do not deny them the legal protections of civil marriage. As a matter of law, Massachusetts has no legal requirement that a couple commit to procreation in order to get a marriage license. The state's main case collapses upon the most casual inspection.

Moreover, the court also acknowledged, in the words of Justice Earl Warren, that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." It is guaranteed under the Constitution to aliens and deadbeat dads, to people of every religion and none. Even when citizens can be denied the right to vote - as convicted felons in many states are - they are still guaranteed the right to marry. Excluding gay citizens is therefore an astonishing denial of a basic civil right.

We do not know where this debate is going. But we do know, as the Goodridge case shows beyond doubt, that the arguments against equal marriage rights are so weak that they should not carry the day. We see no way in which allowing gay citizens to marry could have a negative social effect. On the contrary. By bringing a marginalized group of people within the unifying fold of family and common citizenship, we both strengthen marriage and strengthen society.

We are not dealing with religious issues here. This is about civil - not religious -marriage, and the principle of our civil order should be equality. The president is out of bounds in declaring any secular institution "sacred." Moreover, the religious right's attempts to respond to Goodridge by getting the federal government to quash decisions of individual states, through constitutional amendment or congressional legislation, violate a basic principle of marriage law in this country: that it is a matter for states and states alone. We have long suspected that the religious right's alleged support for federalism was always a disguise for its sectarian agenda and would collapse the minute a state wanted to do something its members disliked. Now we know.

Tuesday was a landmark day, an advance in the great, unfinished journey of equal dignity and equal rights for all citizens. We urge everyone to see beneath the political posturing to this simple and powerful truth. Citizenship is indivisible. Equality is non-negotiable. We urge the Democratic Party and the Democratic presidential candidates to affirm this truth, not as some sop to a special interest but as a statement of fundamental principle. And we urge all people of goodwill to make this battle their own.

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