The Merits of Gay Marriage

ONE ARGUMENT against gay marriage is that most Americans oppose it. It has never been condoned by common law. Many Americans view homosexuality as immoral and contrary to God's law. They believe, and sometimes cite allegedly scientific evidence to show, that children raised by gay or lesbian parents fare worse than those raised by a mother and a father.

One difficulty with such argumentation is that much the same was true, earlier in U.S. history, of interracial marriage. It was illegal in most states. Many or most Americans believed it to be wrong, unnatural and perhaps contrary to God's law. Volumes of scientific data were marshaled to prove that children resulting from such marriages were deficient.

Before we spur a truckload of indignant letters, let us be clear: We are not equating the African American experience with the experience of gay men and lesbians. Nor are we saying that because a majority of people believe something it must be wrong. We are saying that public unreadiness for or opposition to a censured social arrangement is not sufficient proof that the new structure must be immoral. It has to be examined on its merits -- on the basis of fairness, justice and practicality.

By those measures, it has seemed to us that the arguments are strong for allowing committed gay and lesbian couples to enjoy the benefits and obligations that accrue to civil marriage. How religions deal with this matter is their business. But society already allows such couples to live together openly and to raise children. To then purposely make life more difficult for them in dozens of ways -- from trust law to hospital bedsides to children's medical care -- is neither right nor logical.

This in part is the reasoning of the 4 to 3 majority of the Massachusetts Supreme Judicial Court, which ruled on Tuesday that same-sex couples have a right under the state constitution to marry. "The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death," the court ruled. And, the right to enjoy such benefits through marriage "means little if it does not include the right to marry the person of one's choice."

We think the court is right as a matter of policy. Whether it is correct in finding this new right in the Massachusetts constitution is less clear. To do so, the majority had to find that no legislator could possibly have any "rational basis" for opposing gay marriage. Justice Martha B. Sosman, in dissent, argued that the court had inserted its opinions too far into the democratic and legislative process. It was not "irrational," she said, for the legislature to "grant benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure."

This debate will play out now in the Massachusetts legislature, which was given 180 days by the court to respond to the ruling. But it will also play out on the national stage and in the 2004 election. And it offers a test of character as well as a political opportunity for President Bush.

The opportunity, according to many Republican strategists, is a rich one. They can now use gay marriage to motivate base voters as well as to pry swing voters away from the Democratic Party. They can push for a constitutional amendment defining marriage as a union between a man and a woman. They can, in other words, milk this for all it is worth.

We hope the president adopts a less cynical approach -- though the initial signs are far from promising. Mr. Bush said Tuesday that he would "do what is legally necessary to defend the sanctity of marriage." Yet as a matter of law, no amendment is needed; the 1996 Defense of Marriage Act already allows other states and the federal government to refuse to recognize Bay State gay marriages, if it comes to that. "Different states are likely to come to different conclusions, and that's appropriate," Vice President Cheney said during the 2000 campaign. "I don't think there should necessarily be a federal policy in this area."

As a matter of real life, a campaign that relies on whipping up fear will make life more difficult for many gay and lesbian couples and their children, for whom everyday prejudice is too prevalent. As a matter of character, Mr. Bush should resist an appeal to bigotry and divisiveness, no matter what his strategists advise.

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