The Massachusetts Supreme Judicial Court ruling which held that a ban on same-sex marriage violates the equal protection guarantees of the state Constitution has caused predictable reactions. To gay rights supporters, the decision is a legal and moral victory comparable to the triumph of the civil rights movement. To religious conservatives, it is virtually the end of civilization as we know it.
Meanwhile, politicians from both parties are scrambling to be all things to most people. President Bush has vowed to work to preserve "the sanctity of marriage" as the union of a man and a woman but, to the disappointment of traditionalist supporters, stopped short of endorsing a constitutional amendment enshrining that principle. The leading Democratic presidential candidates have reiterated their opposition to same-sex marriage while backing civil unions that grant most of the rights of married couples.
Depending on how strong the backlash is, only time will tell whether the court ruling will ultimately help or hurt the cause of gay equality.
Given that the U.S. Constitution prohibits the legislative establishment of religion, it seems self-evident that faith-based beliefs about sex and sin cannot and should not be imposed on law and public policy. No one asks that churches be required to perform same-sex marriages if it violates their beliefs; at issue is civil marriage with its benefits and protections. Many conservatives speak of marriage as a religious sacrament; but such an approach is largely negated by the availability of divorce, which affects heterosexual marriage far more than homosexual marriage ever can.
Some of the ostensibly secular conservative arguments made on behalf of the gay marriage ban are so flimsy that it's hard not to see them as window-dressing for prejudice. The website of the Family Research Council asserts that "homosexual unions often have a more direct impact on heterosexual marriages than one would think." How so? Well, 40 percent of the people who have entered gay civil unions in Vermont were previously married to someone of the opposite sex.
That's laughable. Even if one were to embrace the dubious premise that it's desirable to preserve heterosexual marriages in which one spouse is gay, there is no evidence such marriages are more likely to break up in states with civil union laws or domestic partnership benefits.
And yet not all arguments against legalizing same-sex marriage can be dismissed as irrational or bigoted. The dissenting opinions in the Massachusetts case, none of them antigay polemics, carefully outline reasons the Legislature might rationally decide to limit marriage to male-female couples. While infertile heterosexual couples are allowed to marry, the dissenters note, this does not alter the fact that marriage evolved as a way for society to sanction and stabilize procreative relationships. Legislators might decide that a law which uncouples marriage from procreation might lead to more childbearing out of wedlock.
There are ready counter-arguments for such a view. Many gay couples, including some of the plaintiffs in the case that led to the court's historic ruling, are in fact raising children—even if these children are not biologically related to both parents. Indeed, supporters argue that the quest for equal marriage rights for gays and lesbians may boost respect for marriage by underscoring its importance.
The dissenters believe that these issues need to be debated, not settled by judicial fiat. Some supporters of same-sex marriage rights are inclined to agree.
Americans' attitudes toward gay rights are complex and conflicted. According to a recent Pew Research Center poll, while 55 percent view homosexual relations as a sin, 88 percent also believe that gays should have equal rights (up from only 56 percent in 1977). Most, however, would not extend this to the right to marry a partner of the same sex. While 80 percent of Americans agree that the government should not put any restrictions on private sexual behavior between consenting adults, only 32 percent favor same-sex marriage, and a slight minority now oppose legalizing civil unions as well.
In such a climate of public opinion, leaving the issue to voters and politicians may mean sacrificing fundamental equal rights. But judicial short-circuiting of the legislative process may backfire if conservatives, in turn, short-circuit future legislative reforms through a constitutional amendment.
The dilemma is a painful one, and the debate has only begun.