The Goodridge decision of the Massachusetts Supreme Judicial Court to strike down the ban against same-sex marriages immediately generated a great deal of emotional and polemic response, for and against. Before getting involved in those arguments, I think it is important to understand what the decision says. To that purpose, I am writing this summary with as much objectivity as I can muster.
The 91-page record contains the court opinion (written by Chief Justice Margaret H. Marshall), a supporting opinion (by Justice John M. Greaney), and three dissenting opinions (by Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy). Two justices (Roderick L. Ireland and Judith A. Corwin) voted with the majority but did not write opinions. Among them, these opinions lay out the legal issues quite well. Reading these opinions makes it clear that many of the issues central to the public debate about same-sex marriages are irrelevant in the legal debate, and vice versa.
Seven same-sex couples (four female and three male, all between the ages of 35 and 60) from five Massachusetts counties tried to get marriage licenses in March and April of 2001. They met all the requirements listed in the law (General Laws c. 207) for obtaining a marriage license, but all were turned down because Massachusetts does not recognize same-sex marriages. Marriage licenses are issued by the Department of Public Health, so the couples sued the department and its commissioner on April 11, 2001.
The couples' intention to marry was not frivolous. Each couple had been a “committed relationship” for at least four years, and one couple had been committed to each other for thirty years. Among them, the couples are raising (or have raised) five children, and are (or have) taken in two aging mothers. All the couples, according the Chief Justice Marshall, “have employed such legal means as are available to them – for example joint adoption, powers of attorney, and joint ownership of real property – to secure aspects of their relationships.”
The couples' suit does not seek any monetary damages from the State, but only requests that the court order the department to give them marriage licenses. They argue their case on two grounds: (1) That the law governing marriage does not explicitly mention opposite genders as a requirement, and so they should be allowed to marry under current law; and (2) if the law is construed to prohibit same-sex marriage, then the law is unconstitutional.
The case was heard in Superior Court by Judge Thomas Connolly. The judge ruled against the same-sex couples on both of their claims. As summarized by Justice Marshall: “He dismissed the plaintiffs' claim that the marriage statutes should be construed to permit marriage between persons of the same sex, holding that the plain wording of G. L. c. 207, as well as the wording of other marriage statutes, precluded that interpretation. Turning to the constitutional claims, he held that the marriage exclusion does not offend the liberty, freedom, equality, or due process provisions of the Massachusetts Constitution, and that the Massachusetts Declaration of Rights does not guarantee 'the fundamental right to marry a person of the same sex.' He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the 'primary purpose' of marriage, 'procreation'.”
None of the five written opinions supports the couples' argument that the same-sex requirement is invalid because it isn't explicitly stated in the law. Even Justice Marshall found that the same-sex provision was inherent in the general understanding of the word “marriage” at the time the law was written, and was clearly part of the Legislature's intent.
But the court agreed (4-3) with argument (2), that the law violated the Massachusetts Constitution. Chief Justice Marshall, writing the court opinion for the majority, summarizes the case as follows: “The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. ... [The Commonwealth] has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”
“We preserve as much of the statute as may be preserved in the face of the successful constitutional challenge. ... No one argues that striking down the marriage laws is an appropriate form of relief.” Justice Marshall arrived at a solution similar to that found by the Ontario Court of Appeal when it faced the same problem. Both the U. S. and Canada inherit marriage from English common law, where it is defined as “the voluntary union for life of one man and one woman, to the exclusion of all others.” Justice Marshall redefined civil marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.”
The Court concluded by sending the case back to Superior Court to implement the decision, but it put a stay on the judgment for six months “to permit the Legislature to take such action as it may deem appropriate in light of this opinion.” It is not clear what exactly the Legislature might do in that time, but if it does nothing the couples will get their marriage licenses.
Many of the issues that are important in the public debate about same-sex marriage were not relevant to the Court. Even the dissenting judges did not mention or champion them. The judges all agreed on the following issues:
Civil marriage is a secular institution, not a religious one. None of the dissenting judges mention God or the Bible, and none of them state any opinion about the morality or immorality of homosexual acts. All the arguments made on both sides concern themselves with whether the Commonwealth of Massachusetts has a legitimate and rational interest in preventing same-sex couples from marrying. Religious and moral issues may figure prominently in the public debate on same-sex marriage, but they appear to be irrelevant under the law. Chief Justice Marshall put it this way: “Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. ... No religious ceremony has ever been required to validate a Massachusetts marriage.” In his dissenting opinion, Justice Robert Cordy said much the same thing: “Civil marriage is an institution created by the State.”
The Legislature never intended to allow same-sex marriage. By finding in favor of same-sex marriage, the Court is over-ruling the Legislature. Marshall wrote: “We conclude, as did [Judge Connolly], that G. L. c. 207 may not be construed to permit same-sex couples to marry.”
Marriage gives substantial benefits both to a couple and to its children. By not allowing same-sex couples to marry, the State is denying something of value to them and their children. Indeed, couples trying to decide whether or not to marry would do well to read Justice Marshall's summary of the legal advantages marriage bestows.
By allowing same-sex couples to marry, the Court is making a substantial change to the institution of marriage.
The judges disagree on three main issues:
Is there are “right to marry,” and if so, how fundamental is it? The word fundamental is important, because it changes the standard that the Court has to apply. If the right to marry is fundamental, then the burden of proof in on the Legislature to show that it has a compelling reason to violate that right. If it isn't fundamental, then the Legislature only has to have a rational reason. In other words, if the right isn't fundamental, and if reasonable people can disagree about whether the Legislature did the right thing, then the Court has to defer to the Legislature.
Is marriage mainly about procreation? If the Court is going to redefine marriage, surely the minimal condition on that redefinition should be that it capture the essence of the institution as it is practiced in American culture today. Opposite-sex couples can procreate together while same-sex couples cannot. Does this distinction go to the heart of marriage or not?
How much deference does the Court owe to the Legislature? How quick should the Court be to assume that that Legislature is motivated by an irrational prejudice? We live in a democracy, in which the people express their will and their wisdom – but also their bigotry – by electing representatives to the Legislature. Even if a judge believes that allowing same-sex marriage is (in the words of Justice Greaney) “the right thing to do”, does he or she still have a responsibility to bend over backwards to try to see the Legislature's point of view?
The precedent that hangs in the background of all the judges' opinions is the fortuitously named 1967 case Loving v. Virginia, in which the U. S. Supreme Court struck down a Virginia law against interracial marriage. This builds on a similar case Perez v. Sharp in 1948 in which the California Supreme Court struck down a ban on interracial marriage. Many of the same themes occur: The laws against interracial marriage were of long standing, and it could be argued that the court was changing the fundamental nature of marriage. The court could have stood by, waiting for the legislature to change the law, but chose not to. There was – and always had been – a substantial popular prejudice against interracial marriages, and so it was impossible to argue that the founders intended the Constitution to contain a right to marry someone of another race. Yet, the courts found reasons to strike these laws down.
One reason these precedents are so powerful is that, over time, popular opinion has swung in their favor. The larger culture has followed the leadership of the courts. The arguments made against interracial marriage look ridiculous today, and no judge would want to claim that the courts should have been persuaded by them.
Marshall uses these precedents as follows: “As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice. ... In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance – the institution of marriage – because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.”
The dissenting judges do not agree that “the right to marry means little if it does not include the right to marry the person of one's choice.” Justice Spina writes: “Constitutional protections are extended to individuals, not couples. ... The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court. ... There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a person of the opposite sex.”
Of course, one could replace “sex” and “sexual orientation” with “race” and appear to be back in the situation of Loving, where each individual is free to marry a person of the same race. The dissenting judges address this problem. To them, Loving is not about an interracial couple's right to marry, and not even about an individual's right to marry someone of another race. Instead, Loving is about covert racial inequality. Justice Cordy writes: “While the [interracial marriage] statute purported to apply equally to whites and nonwhites, the Court found that it was intended and structured to favor one race (white) and disfavor all others (nonwhites).” Justice Spina agrees: “In Loving, the Supreme Court ... concluded that the statute was intended to preserve white supremacy.” (I can't resist dropping my objectivity long enough to raise this question: Do the dissenting judges mean to imply that a ban on interracial marriage could pass constitutional muster if it were restructured so as not to favor whites?)
Our legal tradition makes a distinction between rights and fundamental rights. The difference is, basically, how good a reason the government needs to have to violate the right. If a right is fundamental, the government can only violate the right if it has a compelling reason. Courts are very strict about admitting that a reason is compelling. But if the right is not fundamental, then the government only needs to have a rational reason to violate it. For example, I have a right to use the public streets, but my right is not fundamental. Consequently, my city can close off streets for comparatively frivolous reasons like a parade or a movie shooting, as long as it can argue that the closing is not completely irrational. Conversely, freedom of speech is fundamental. That's why it is so hard to pass laws limiting political campaigns. The government certainly has rational reasons to want to limit the amount of money a political campaign can spend, but courts typically do not find those reasons to be compelling.
If the right to marry is fundamental, and if that right extends to same-sex couples, then banning same-sex marriages is almost certainly unconstitutional; short of believing that the State of Massachusetts is about to be smitten by God, it is hard to imagine a compelling reason to ban same-sex marriages. But if the right is not fundamental, then in order to overturn the ban one has to argue that it serves no rational purpose at all.
In his supporting opinion, Justice Greaney argues that the plaintiffs' right to marry is fundamental. He bases his position on the on the Equal Rights amendment to the Massachusetts Declaration of Rights: “Equality under the law shall not be denied or abridged because of sex.”
“Hillary Goodridge,” writes Greaney, “cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.”
This argument sounds very clear and simple, but the dissenting opinions shred its claims. Justice Spina writes: “A claim of gender discrimination will lie where it is shown that differential treatment disadvantages one sex over the other. ... General Laws c. 207 enumerates certain qualifications for obtaining a marriage license. It creates no distinction between the sexes, but applies to men and women in precisely the same way.” Justice Robert Cordy adds: “This conclusion is buttressed by the legislative history of the ERA.” He quotes from the interim report of a commission appointed to study the effect of the (then) proposed ERA on Massachusetts laws: “An equal rights amendment will have no effect on the allowance or denial of homosexual marriages.” In other words, when the Massachusetts voters approved the ERA, they had been assured that it would not be interpreted in the way that Justice Greaney has interpreted it.
Chief Justice Marshall does not rely on the ERA, and does not state any opinion on whether or not the right to marry is fundamental. Instead, she argues that fundamentality is not at issue, because the ban on same-sex marriage is irrational. This is a risky strategy, because if the opponents of same-sex marriage have no rational basis for their opposition, what could be driving them? Bigotry? Marshall never says this, but it's hard to imagine what else she could be thinking. She comes closest to saying this outright in the following: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage, and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.”
Chief Justice Marshall describes the test the law must meet as follows: “The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be 'arbitrary or capricious.' ... Under both the equality and liberty guarantees, regulatory authority must, at the very least, serve 'a legitimate purpose in a rational way'; a statute must 'bear a reasonable relation to a permissible legislative objective.' ... Any law failing to satisfy the basic standards of rationality is void. ... For due process claims, rational basis analysis requires that statutes 'bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.' ... For equal protection challenges, the rational basis test requires that 'an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class'.”
Applying these ideas to the current case, Marshall writes: “The department posits three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a 'favorable setting for procreation'; (2) ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and (3) preserving scarce State and private financial resources.” The third rationale barely figures in the argument. Marshall dismisses it quickly and the dissenting judges do little to resurrect it.
In the ruling under review, Judge Connolly found that the ban on same-sex marriage passed the rationality test. He wrote: “The state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation.”
Justice Marshall responds “This is incorrect” and says marriage is about commitment, not procreation. “General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. ... People who cannot stir from their deathbed may marry. ... While it is certainly true that many, perhaps most, married couples have children together ..., it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”
Marshall goes on to imply that the procreation standard has been chosen precisely to justify discrimination against same-sex couples. “The 'marriage is procreation' argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.”
In a footnote, Justice Cordy answers this passage directly: “The court [i.e., Marshall] has it backward. Civil marriage is the product of society's critical need to manage procreation as the inevitable consequence of intercourse between members of the opposite sex. Procreation has always been at the root of marriage and the reasons for its existence as a social institution. Its structure, one man and one woman committed for life, reflects society's judgment as how optimally to manage procreation and the resultant child rearing. The court, in attempting to divorce procreation from marriage, transforms the form of the structure into its purpose. In doing so, it turns history on its head.”
In arguing that the right to marry is not fundamental, Justice Cordy also wrote that in the marriage-related cases in which the Supreme Court has used the word fundamental, the fundamental right involved was the right to procreate, not the right to marry. The right to marry, in Cordy's reading of the precedents, derives from the right to procreate. He quotes the Supreme Court opinion in the case Zablocki v. Redhail: “if [the plaintiff's] right to procreate means anything at all, it must imply some right to enter the only relationship in which the State ... allows sexual relations legally to take place.” Cordy concludes: “Because same-sex couples are unable to procreate on their own, any right to marriage they may possess cannot be based on their interest in procreation, which has been essential to the Supreme Court's denomination of the right to marry as fundamental.”
Chief Justice Marshall writes: “Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. ... The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the 'optimal' child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be 'excellent' parents. ... Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a 'stable family structure in which children will be reared, educated and socialized.' ... In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.”
The dissenting judges argue that Marshall does not go far enough in imagining reasons why the Legislature might believe that a same-sex ban serves the interest of the State's children. Justice Sosman writes: “In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality.”
In particular, the burden of proof is not on the State to show that the ban achieves its proffered goals, but for opponents to show that it does not. Justice Sosman continues: “Of course, many people are raising children outside the confines of traditional marriage ... That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternative family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries.”
“Based on our own philosophy of child rearing, and on our own observations of the children being raised by same-sex couples to whom we are personally close ... same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent, and supportive environment in which to mature, just as opposite-sex couples do. ... It is not, however, our assessment that matters. ... Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief, but may, as the creator of the institution of civil marriage, wish to see proof before making a fundamental alteration to that institution.”
“Although ostensibly applying the rational basis test to the civil marriage statutes, it is abundantly clear that the court is in fact applying some undefined stricter standard to assess the constitutionality of the marriage statutes' exclusion of same-sex couples.”
Justice Cordy makes a similar point: “The Legislature could rationally conclude that a family environment with married opposite-sex parents remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm. ... Working from the assumption that a recognition of same-sex marriages will increase the number of children experiencing this alternative, the Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved.”
“Here,” Justice Marshall writes, “the plaintiffs seek only to be married, not to undermine the institution of civil marriage. ... Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.”
“Alarms about the imminent erosion of the 'natural' order of marriage were sounded over the demise of antimiscegenation laws, the expansion of the rights of married women, and the introduction of 'no-fault' divorce. Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.”
Justice Cordy counters: “Whether the court is correct in its assumption is irrelevant. What is relevant is that such predicting is not the business of the courts. A rational Legislature, given the evidence, could conceivably come to a different conclusion, or could at least harbor rational concerns about possible unintended consequences of a dramatic redefinition of marriage.”
Justice Spina writes: “The power to regulate marriage lies with the Legislature, not with the Judiciary. ... Today, the court has transformed its role as protector of individual rights into the role of creator of rights.”
Unsurprisingly, Justice Marshall disagrees: “These arguments miss the point. The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of the courts to determine whether these criteria are met and whether these limits are exceeded.”
It is in the nature of judicial opinions that the majority gets its way, but the minority gets the last word. The dissenting opinions dissect the majority opinions, and the formal discussion ends there. This is fine in situations where the judges are writing primarily for other judges, as they usually are. But in a case like this, the judges' arguments go straight into the country's political debate. As someone who fundamentally agrees with the court's ruling, I can't resist giving myself the last word, rather than letting the dissenting judges have it.
Justice Cordy is probably correct when he says that the institution of marriage originates in society's need to manage procreation. But origin is not the same as essence. Marriage had changed long before Justice Marshall redefined it. It changed because of contraception, abortion, divorce, the sexual revolution, women's liberation, the increasing acceptance of adoption, and a growing awareness that the world is in no danger of underpopulation. Procreation today is a decision, not “the inevitable consequence of intercourse between members of the opposite sex”. To read the dissenting opinions is to plunge into an antediluvian world of precedents in which extra-marital sex is illegal and illegitimate children are bastards. I do not doubt Justice Cordy's historical analysis, but the relevance of it is questionable.
Justice Cordy is also correct when he says that the right to same-sex marriage is not “rooted in the collective conscience of our people”. But Justice Marshall's notion that committed relationship (and not procreation) is the essence of contemporary marriage is so rooted. Couples today decide to get married because marriage defines the relationship they want to have; sometime later they decide whether or not to have children. In no sense does contemporary American culture consider childless couples to be less married than child-bearing couples. Perhaps this was so at one time, but no longer.
Once the procreation-centered definition of marriage is set aside, the rest of the dissenting case falls like a house of cards. The law's distinction between same-sex and opposite-sex couples is seen to be what Justice Marshall says a law cannot be: arbitrary. Without the strength of either homophobic prejudice or religious injunctions against homosexuality – neither of which has any legal standing – what rational basis is there for decreeing that some committed couples can be married while others cannot?
The only question that should give a rational person pause is the dissenting judges' procedural objection: The marriage law should be changed by the Legislature, not the Court. This is a good argument to have in a courtroom, but in the political arena it is just a Trojan horse. The public really does not care about a turf battle between two branches of the Massachusetts government. Ordinary people only care about the turf battle if it provides an excuse for rejecting a change that offends their prejudices.
Looking back at American legal history, there have been many moments when courts intruded on the territory of legislatures: desegregating schools, insisting on the voting rights of minorities, and even the interracial marriage cases that this case builds on. It is hard to feel bad about this history. Democracies are notoriously slow to come around to an appreciation of the rights of unpopular minorities, especially when the violation of those rights has acquired the respectability of tradition. For example, it might by now be possible to pass a referendum guaranteeing the right of blacks to attend the University of Alabama – but only because their attendance itself has by now become the status quo. If the courts had waited for the legislatures to break the trail of desegregation, they might still be waiting.
Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.
Doug Muder
20 November 2003