The right to marry

Despite the political uproar it set off, the Supreme Judicial Court of Massachusetts made the right legal call under that state's constitution by ruling that same-sex couples have the right to marry. The 4-3 decision by a court dominated by Republican appointees held that the state Constitution "forbids the creation of second-class citizens."

The ruling didn't say same-sex couples have a right to a church wedding or to societal approval. It simply held that to deny gays and lesbians the opportunity to choose life partners and form families with all the legal and economic benefits that flow from a state-sanctioned marriage violates their right to equal protection under the law.

In the majority opinion by Chief Justice Margaret Marshall, the court acknowledged that it was forging "a significant change" in the traditional definition of marriage, but said that its ruling was strengthening marriage, not diminishing it. "That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit," Marshall wrote.

Among the 14 plaintiffs were gay couples who had been in committed relationships for two and three decades. Many had children. They were lawyers, educators, business executives, people who formed solid, stable families but were denied access to hospital bedsides or survivor benefits - rights that heterosexual couples take for granted.

The court concluded that fairness dictates that all Americans should enjoy the legal and practical benefits of civil marriage - benefits that include inheritance rights, state pension benefits, medical surrogacy and tax advantages, among dozens of others. Children of same-sex couples, the court found, would be better protected if the state extended legitimacy to their parents.

To no one's surprise, as soon as the decision was announced, religious conservatives sounded a renewed call for a federal constitutional amendment that would bar same-sex marriage. Thirty-seven states, including Florida, already have a Defense of Marriage statute on the books shielding them from having to recognize same-sex marriages performed in another state. A federal constitutional amendment is unnecessary. But if religious conservatives prevail, it would be a tragic consequence of a valid court decision that only suffers from being ahead of its time, the way many civil rights rulings have been.

According to polls, a majority of Americans are still opposed to gay marriage, but younger respondents are far more accepting than are their parents and grandparents. This nation is on the cusp of fully accepting gay families, but until a broad consensus has been reached it may be best to use different nomenclature. The Massachusetts court gave the Legislature six months to start licensing civil marriage for same-sex couples. To dampen some of the emotion connected to the word "marriage," the Legislature might take a page from Vermont, where the state's high court handed down a similar ruling a few years ago, and offer same-sex couples the right of civil union - a legal status that can provide the full panoply of rights spouses receive without redefining "marriage." It isn't clear, however, that the Massachusetts court would accept a different designation.

Despite what critics are saying, the ruling in Massachusetts does not degrade or undermine heterosexual marriage. As the Massachusetts decision reminds us, civil marriage is a "wholly secular institution" created by the state that confers legal and economic benefits. How religions want to define marriage is their business.

In 1967, the U.S. Supreme Court ruled that Southern states could no longer bar blacks and whites from marrying each other. The high court said: "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." The day when all Americans will be able to enjoy this right with the partners of their choice is coming, because this is a nation that eventually comes down on the side of fairness and justice.

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