Extending the right to marry

Court ruling is a step toward acceptance of same-sex unions

In 1948, the California Supreme Court struck down the state ban on interracial marriage. At the time, it was an unpopular move.

Fifty-five years later, only the worst kind of bigot would argue that the state should be able to prohibit a marriage because the bride and groom are not of the same race.

Perhaps by the time the 21st Century reaches its midpoint, society will have come to realize that the state should not be able to prohibit a marriage because the couple are of the same gender. We're not there yet, but the recent ruling by the Massachusetts Supreme Court that same-sex couples cannot be denied the right to marry is certainly a profound step.

The court, like the California court in 1948, is way out in front of public opinion.

Polls show widespread opposition to same-sex marriage. A recent poll by the Pew Research Center for the People & the Press found 59 percent of Americans opposed to gay marriage.

But the poll also found opposition far stronger among older people. Younger adults are about evenly split on the question, while older Americans are opposed 4-1. That provides some hope that Americans are growing more tolerant, generation by generation. Still, the job of the judiciary is not to reflect public opinion, but to protect basic, fundamental rights.

It's hard to think of a more fundamental right than the right to marry. As the U.S. Supreme Court stated when it outlawed miscegenation statutes in 1967, "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."

And, as the California Supreme Court reasoned, "the essence of the right to marry is freedom to join in marriage with the person of one's choice." If marriage were simply a civic institution, a legal contract between two individuals, there would be less opposition to extending it to same-sex relationships.

Marriage is much more than that, of course. As President Bush said, many view marriage as a "sacred institution."

However, the Massachusetts court had to examine marriage as a legal institution, not a religious one. And, in that light, denying the right to a civic marriage based on sexual orientation simply cannot be justified. The Massachusetts constitution demands that the law treat all people equally.

The state constitution also demands that citizens remain free from unwarranted government intrusion in their daily lives.

In defending its decision to withhold marriage certificates from same-sex couples, the state failed to identify any "constitutionally adequate" reason for violating both of these constitutional tenets.

Perhaps the most compelling argument in the Massachusetts decision centered around the impact on children of same-sex couples. As the court noted, gay couples can adopt (this is not the case in Florida, though a federal lawsuit is challenging the state ban on gay adoption). Artificial insemination and surrogate mothers also make it possible for homosexual couples to have children. Or they may have children from previous relationships. The result is that Massachusetts is "confronted with an entire, sizable class of parents raising children who have absolutely no access to civil marriage and its protections ."

The court concluded that the state could not deprive children of the benefits that accompany their parents' marriage "because the state disapproves of their parents' sexual orientation."

In a concurring opinion, Justice John Greaney made an impassioned plea for acceptance of this decision, even by those "thoughtful citizens who believe that same- sex unions should not be approved by the State."

Greaney wrote that the gay couples who brought this lawsuit "volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few of the ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance and respect." That is a noble sentiment. Unfortunately, it seems unlikely to be fulfilled. Instead, many conservative and religious groups are advocating for an amendment to the U.S. Constitution that would prohibit same-sex marriages.

It would be regrettable if a document born of the notion that all people are created equal was amended to condone discrimination. In the past, many amendments addressed those areas where the Constitution fell short of its stated ideals. Amendments granting women the right to vote or abolishing slavery expanded freedoms and rights to those who had been left out of the Founders' original vision of equality.

This amendment would be the first to withhold liberty.

Perhaps, though, before such an amendment can pass, public sentiment will catch up with the courts, just as it did with interracial marriages.

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