Last edited: February 06, 2005

The Convergence of Two Legal Paths

Boston Globe, November 20, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098

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 and 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 individuals.

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 second-class citizens.”

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 social change.

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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