The Convergence of Two Legal Paths
Globe, November 20, 2003
Box 2378, Boston, MA 02107
By Ellen Goodman
Now that we’ve arrived at the wedding, can we take a
minute to describe how the laws walked us down this aisle? After all, the laws
emerged from two different backgrounds and went down two separate paths. Then
they came together before the justice of the peace, as groom and groom, bride
On Tuesday, the Massachusetts high court ruled that gay
couples have the right to marry. In the same decision, the justices redefined
both gay rights and marriage. And yet for all the hoorays and all the boos,
the decision may be as evolutionary as it is historic.
Consider first the path of gay rights. For generations,
the state labeled some lovers as criminals. When the last laws against sodomy
finally fell this year, Supreme Court Justice Antonin Scalia dissented. He
argued that if moral disapproval wasn’t enough to make sodomy illegal,
nothing was: “What justification could there possible be for denying the
benefits of marriage to homosexual couples?”
He was bitter—and right. The statutes that made
homosexuals outlaws had to end before they could become in-laws.
Meanwhile, marriage was on its own winding path.
Historically, a woman who entered the institution lost her legal identity at
the altar. Until 20 years ago a husband was still exempt from rape charges in
New York because a wife didn’t have the right to say no.
In 1965, the state lost the power to control sex within
marriage when the Supreme Court overturned a Connecticut ban on selling
contraceptives to couples. In 1967, the state lost its power to define the
race of the person you could marry when the court overruled the last laws
banning interracial marriage. And gradually throughout the 1970s, the state
turned over the right to decide why a marriage could end. A wave of no-fault
divorce laws gave that decision to the people.
Each one of these changes—ending the subordination of
wives, ending race restrictions, decoupling marriage from decisions about
children, sex, and divorce—set off alarm bells. Marriage today is less about
an institution and more about a relationship, less about the state, more about
The evolution of gay rights and marriage laws now merge
into the definition of marriage written by the Massachusetts court: “We
construe civil marriage to mean the voluntary union of two persons as spouses,
to the exclusion of all others.”
In an elegant decision, Chief Justice Margaret Marshall,
who grew up fighting apartheid in her native South Africa, echoed the
reasoning that permitted interracial marriages: “The right to marry means
little if it does not include the right to marry the person of one’s
choice.” Marshall wrote that “civil marriage anchors an ordered society by
encouraging stable relationships over transient ones.” But what’s sexual
orientation got to do with it? The decision carefully lists the reasons to ban
gay marriage and finds them unreasonable.
Fertility? Why, the state allows people who aren’t
fertile, indeed people on their deathbeds, to marry. For the raising of
children? Why, if anything, marriage would help gay couples with children,
like many plaintiffs in this case. By the end, the only reason left to ban gay
marriage was moral disapproval—or what’s also known as prejudice. But the
Massachusetts Constitution, ruled the court, “forbids the creation of
This case doesn’t end the argument any more than the
decisions about interracial marriage or a wife’s place ended those debates.
The state Legislature has 180 days but not much wiggle room to get its
marriage laws in line. There is talk already of a state constitutional
amendment. And if couples marry in Massachusetts and seek recognition
elsewhere, the issue could go to the Supreme Court.
Gay marriage may indeed end up at the center of the
culture war in the 2004 campaign. Or it may simply mark the moment in a long
It’s been a lengthy trip down the aisle. But a friend
who applauded this decision added: “I don’t think I would have said that
five years ago.” In the past year, Bride’s magazine featured two brides.
The love that “dared not speak its name” now announces it in the
newspaper. If this is a wedge issue, it seems to mostly divide generations.
“The plaintiffs seek only to be married, not to
undermine the institution of civil marriage,” writes Justice Marshall.
Marriage vows are not diminished but enlarged in a redefinition that seems
both new and familiar: “Civil marriage is at once a deeply personal
commitment to another human being and a highly public celebration of ideals of
mutuality, companionship, intimacy, fidelity, and family.”
In the end, this case may say less about the fragility of
marriage than about its endurance.
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