IGF CultureWatch

First published Dec. 3, 2003, in the Chicago Free Press.

Novelist Ayn Rand (1905-1982), best known as author of The Fountainhead (1943) and Atlas Shrugged (1957), is rightly regarded as a rigorous defender of individualism and personal autonomy, of the right to craft a life satisfying to oneself rather than others, of the importance of thinking logically and carefully examining traditional assumptions.

Given this emphasis, it is easy to understand why many gays and lesbians would find in Rand's novels a message of encouragement, a powerful nudge toward self-acceptance and a foundation for self-esteem in the face of moralizing religions and social stigma.

Rand, who was born Alissa Rosenbaum in St. Petersburg, Russia, is even listed in the "Gay Russian Hall of Fame" maintained by a Moscow alternative newspaper and The Fountainhead is called "a landmark of gay culture," presumably for its theme of personal liberty and individual creativity.

It is all the more surprising, then, that Rand herself held a strongly negative view of homosexuality which during the 1960s and 1970s influenced many of her followers, leading some gays to remain in the closet or try therapy in the vain hope of changing their orientation.

Yet there is nothing anywhere in the novels to suggest any hostility to homosexuality. Perhaps even the opposite is true in the themes of strong bonding between some of the male characters. In Atlas Shrugged, heroine Dagny Taggart remarks to industrialist Hank Rearden that she thinks he has "fallen" for Francisco d'Anconia. "Yes, I think I have," Rearden acknowledges.

And commenting on The Fountainhead, Rand said that the love of publisher Gail Wynand, a man, for architect Howard Roark was "greater, I think, than any other emotion in the book." Rand insisted that the love was not homosexual, but "love in the romantic sense...." Yet in a later essay Rand defined romantic love exactly as "the profound ... passion that unites mind and body in the sexual act." The contradiction is hard to miss.

Luckily in a way, most people just read the novels and took away whatever message they needed for their own lives, happily unaware of the author's personal opinions, tastes, and preferences. As D.H. Lawrence once remarked, "Don't tell me what the novelist says, tell me what the novel says."

Rand's one explicit statement about homosexuality, however, came in 1971 after a public lecture in Boston. She made it clear that her philosophy of personal rights and limited government required that homosexuality be decriminalized, an enlightened view for the time, but then went on to say, "It involves psychological flaws, corruptions, errors, or unfortunate premises .... Therefore I regard it as immoral ... And more than that, if you want my really sincere opinion. It's disgusting."

Although Rand offered no further rationale for her opinion, her designated successor Nathaniel Branden dutifully followed her lead for a time - with equally little rationale. But Branden gradually changed his views as did many others through the 1970s and 1980s.

By 1983, a year after Rand died, Branden was willing to say that she was "absolutely and totally ignorant" about homosexuality, describing her view "as calamitous, as wrong, as reckless, as irresponsible, and as cruel, and as one which I know has hurt too many people who ... looked up to her and assumed that if she would make that strong a statement she must have awfully good reasons."

Untangling the story of how Rand's views were gradually put aside or corrected by her successors is the subject of a new monograph by New York University scholar Chris Matthew Sciabarra, Ayn Rand, Homosexuality, and Human Liberation. The openly gay Sciabarra is author of Ayn Rand: The Russian Radical and editor of the important Journal of Ayn Rand Studies.

More than most others, Rand's candid biographer Barbara Branden retained her independence in the face of Rand's strong personality. "I never agreed with her about homosexuality," Branden told Sciabarra. "I considered her profoundly negative judgment to be rash and unreasonable."

Branden recounted that once she observed a Rand-influenced psychiatrist start to try to "cure" a young gay man unhappy about his gay feelings rather than help him achieve self-acceptance.

"I listened seething inside," Branden said. "Afterwards I said to him 'Please give me your proof that homosexuality is psychologically unhealthy and should be cured.' The psychiatrist seemed astonished by the question. Then he suddenly was silent for what seemed an endless time, apparently thinking, and finally he replied, very quietly, 'It's something I've always assumed to be true. ... I can't prove it. I don't know it to be true.' "

And openly gay Arthur Silber who currently writes the engaging "Light of Reason" weblog, summed it up to Sciabarra, "Rand did have an extremely unfortunate tendency to moralize in areas where moral judgments were irrelevant and unjustified. ... especially in ... aesthetics and sexuality."

In the end, Rand's gripping novels and some of her essays seem destined to have a long and productive influence, while her incidental personal preferences and tastes are likely to be completely forgotten by the next generation. No one could wish things otherwise.

Author's note: Sciabarra's 70-page monograph can be ordered for $9.95 from Sense of Life Objectivists or, beginning January 2004, from Laissez Faire Books.

First published December 3, 2003, in National Review Online.

AUTHOR'S NOTE: Since the late President Ronald Reagan passed away on June 5, 2004, Americans have taken another look at this remarkable man and his record. In so doing, a number of people have reviewed an article I did on President Reagan's policies and pronouncements on AIDS. In this process, I learned that research provided to me in good faith and received as such was nonetheless in error. While a document President Reagan transmitted to Congress on February 6, 1986 (titled "Message to the Congress on America's Agenda for the Future") mentioned the word "AIDS," his February 4, 1986 State of the Union did not, as I had written. I apologize for conflating President Reagan's speech with that subsequent document. My telephonic research perhaps would have benefited from physical inspection of these similarly named and closely dated papers.

I would add that President Reagan indeed used the word "AIDS" in a September 17, 1985, press conference. So the widely accepted myth that he did not even utter those four letters until 1987 remains precisely that:a myth.

Finally, while President Reagan's critics are free to argue that he should have done more about AIDS, and perhaps he should have, the fact that total federal HIV/AIDS expenditures grew from $0 to $5.727 billion on his watch belies the notion that he "did nothing" about this vicious disease.

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"You're president of the United States," Nancy Reagan, reminded Ronald Reagan as he sat up in bed in 1983. She begged him to do something about the growing scourge of AIDS. "If you don't talk about it, nobody will talk about it. Nobody will do anything, and all these people - these children, these young boys - they're all going to die. And the blame will be on our heads, Ronnie."

President Reagan quietly kept reading through his half glasses. He seemed very cozy, clad in his bathrobe, beneath his blankets.

"Ronnie, say something," Nancy pleaded. The president coolly maintained his silence. He never even looked at his beloved First Lady.

That's how Showtime depicted a scene from the White House residence in The Reagans, the controversial TV movie about the conservative chief executive and his devoted wife. Reagan's alleged homophobia and indifference to AIDS patients are among the reasons Reaganites attacked the program, leading CBS to cancel its broadcast premiere and shift it instead to Showtime, the network's sister pay-cable channel.

The original script was far worse.

"Those who live in sin will die in sin," says President Reagan, as portrayed by actor James Brolin. Teleplaywright Elizabeth Egloff eventually admitted she had no evidence on which to base this scandalous comment. "We know he ducked the issue over and over again," she told the New York Times in self-defense.

Ronald Reagan's supposed malign neglect on AIDS and hostility to gays are twin pillars of the Left's anti-Reaganism. He still is scorned for supposedly avoiding the topic in his public pronouncements. Throughout the 1980s, protests by ACT-UP and other AIDS-advocacy groups routinely featured vicious effigies of Reagan. In one vulgar manifestation of this viewpoint, a 1994 cover illustration for Benetton's Colors magazine featured photographer Oliviero Toscani's computer-generated image of President Reagan covered with AIDS-related skin lesions. Toscani denounced Reagan and former British Prime Minister Margaret Thatcher in La Stampa, a newspaper based in Turin, Italy. "They didn't understand anything about AIDS, they did everything wrong," Toscani said that June 24. "They never realized the emergency."

Is any of this fair?

Few men have known Ronald Reagan longer or better than Edwin Meese III. He began working in 1967 with then-governor Reagan in Sacramento, California. He became a presidential adviser on January 20, 1981, and was appointed Reagan's attorney general in February 1985.

Meese described to me the TV movie's take on Reagan, AIDS, and gays as "totally unfair, and totally unrepresentative of his views or anything he ever said." Meese, who now chairs the Heritage Foundation's Center for Legal and Judicial Studies, recalls AIDS as a key issue with which Reagan's senior staff grappled.

"I can remember numerous sessions of the domestic-policy council where the surgeon general provided information to us, and the questions were not whether the federal government would get involved, but what would be the best way. There was support for research through the NIH. There also were questions about the extent to which public warnings should be sent out. It was a question of how the public would respond to fairly explicit warnings about fairly explicit things. Ultimately, warnings were sent out."

"As I recall, from 1984 onward - and bear in mind that the AIDS virus was not identified until 1982 - every Reagan budget contained a large sum of money specifically earmarked for AIDS," says Peter Robinson, a former Reagan speechwriter and author of How Ronald Reagan Changed My Life. "Now, people will argue that it wasn't enough," Robinson adds. "But, of course, that's the kind of argument that takes place over every item in the federal budget. Nevertheless, the notion that he was somehow callous or had a cruel or cynical attitude towards homosexuals or AIDS victims is just ridiculous."

In February 1986, President Reagan's blueprint for the next fiscal year stated: "[T]his budget provides funds for maintaining - and in some cases expanding - high priority programs in crucial areas of national interest…including drug enforcement, AIDS research, the space program, nonmilitary research and national security." Reagan's budget message added that AIDS "remains the highest public health priority of the Department of Health and Human Services."

Precise budget requests are difficult to calculate, as online records from the 1980s are spotty. Nevertheless, New York University's archived, hard copies of budget documents from fiscal year 1984 through FY 1989 show that Reagan proposed at least $2.79 billion for AIDS research, education, and treatment. In a Congressional Research Service study titled AIDS Funding for Federal Government Programs: FY1981-FY1999, author Judith Johnson found that overall, the federal government spent $5.727 billion on AIDS under Ronald Reagan. This higher number reflects President Reagan's proposals as well as additional expenditures approved by Congress that he later signed.

Table 5 of Johnson's report shows annual federal AIDS spending during Ronald Reagan's watch. This is hardly the portrait of a do-nothing presidency:

Government Spending on HIV/AIDS
Fiscal Year	$ Millions	% growth over previous year
1982	8	N/A
1983	44	450.00
1984	103	134.09
1985	205	99.03
1986	508	147.80
1987	922	81.50
1988	1,615	75.16
1989	2,322	43.78
Source: Congressional Research Service

Free-marketeers may argue that the federal government should have left AIDS research and care to the private sector. Whether or not one embraces that perspective, no one justifiably can regard Reagan's requested and actual AIDS spending as a gleefully applied death sentence for AIDS sufferers.

Besides, could much have been done with an even larger cash infusion during the infancy of AIDS?

"You could have poured half the national budget into AIDS in 1983, and it would have gone down a rat hole," says Michael Fumento, author of BioEvolution: How Biotechnology Is Changing Our World. "There were no anti-virals back then. The first anti-viral was AZT which came along in 1987, and that was for AIDS." As an example of how blindly scientists and policymakers flew as the virus took wing, Fumento recalls that "in 1984, Health and Human Services Secretary Margaret Heckler predicted that there would be an AIDS vaccine by 1986. There is no AIDS vaccine to date."

Reagan also is accused of staying mum about AIDS. According to The Encyclopedia of AIDS: A Social, Political, Cultural, and Scientific Record of the HIV Epidemic, edited by Raymond A. Smith, "Reagan never even mentioned the word 'AIDS' publicly until 1987."

Actually, as official White House papers cited by Steven Hayward, author of the multi-volume Age of Reagan show, the 40th president spoke of AIDS no later than September 17, 1985. Responding to a question on AIDS research, the president said:

[I]ncluding what we have in the budget for '86, it will amount to over a half a billion dollars that we have provided for research on AIDS in addition to what I'm sure other medical groups are doing. And we have $100 million in the budget this year; it'll be 126 million next year. So, this is a top priority with us. Yes, there's no question about the seriousness of this and the need to find an answer.

"Message to the Congress on America's Agenda for the Future," a document President Reagan transmitted to Congress in connection with his February 6, 1986, State of the Union address, included this specific passage that mentions the word "AIDS" five times:

We will continue, as a high priority, the fight against Acquired Immune Deficiency Syndrome (AIDS). An unprecedented research effort is underway to deal with this major epidemic public health threat. The number of AIDS cases is expected to increase. While there are hopes for drugs and vaccines against AIDS, none is immediately at hand. Consequently, efforts should focus on prevention, to inform and to lower risks of further transmission of the AIDS virus. To this end, I am asking the Surgeon General to prepare a report to the American people on AIDS.

So, AIDS policy aside, was Ronald Reagan a homophobe? Here again, those who know him best just say, "No."

"According to the screenplay...my father is a homophobic Bible-thumper who loudly insisted that his son wasn't gay when Ron took up ballet, and who in a particularly scathing scene told my mother that AIDS patients deserved their fate," wrote Ronald and Nancy Reagan's daughter, Patti Davis, on Time magazine's website. "Not only did my father never say such a thing, he never would have."

In fact, she recalls "the clear, smooth, non-judgmental way" in which her dad discussed the topic of homosexuality with her when she was age eight or nine.

My father and I were watching an old Rock Hudson and Doris Day movie. At the moment when Hudson and Doris Day kissed, I said to my father, "That looks weird."... All I knew was that something about this particular man and woman was, to me, strange. My father gently explained that Mr. Hudson didn't really have a lot of experience kissing women; in fact, he would much prefer to be kissing a man. This was said in the same tone that would be used if he had been telling me about people with different colored eyes, and I accepted without question that this whole kissing thing wasn't reserved just for men and women.

"I remember Reagan telling us that in Hollywood he knew a lot of gays, and he never had any problem with them," says Martin Anderson, a high-level Reagan adviser since 1975, co-editor of Reagan: A Life in Letters, the latest collection of material that Ronald Reagan wrote in his own hand. "I think a number of people who were gay worked for the Reagans," Anderson told me. "We never kept track. But he never said anything even remotely like that comment in the movie. His basic attitude was 'Leave them alone.'"

Reagan publicly demonstrated this outlook when he opposed Proposition 6, a 1978 ballot measure that called for the dismissal of California teachers who "advocated" homosexuality, even outside of schools. Reagan used both a September 24, 1978, statement and a syndicated newspaper column to campaign against the initiative.

"Whatever else it is," Reagan wrote, "homosexuality is not a contagious disease like the measles. Prevailing scientific opinion is that an individual's sexuality is determined at a very early age and that a child's teachers do not really influence this." He also argued: "Since the measure does not restrict itself to the classroom, every aspect of a teacher's personal life could presumably come under suspicion. What constitutes 'advocacy' of homosexuality? Would public opposition to Proposition 6 by a teacher - should it pass - be considered advocacy?"

That November 7, Proposition 6 lost, 41.6 percent in favor to 58.4 percent against. Reagan's opposition is considered instrumental to its defeat.

"Despite the urging of some of his conservative supporters, he never made fighting homosexuality a cause," wrote Kenneth T. Walsh, former U.S. News and World Report White House correspondent, in his 1997 biography, Ronald Reagan. "In the final analysis, Reagan felt that what people do in private is their own business, not the government's."

But what about the comment in Dutch, Edmund Morris' authorized biography of President Reagan? Morris claimed that Reagan once said about AIDS: "Maybe the Lord brought down this plague," because "illicit sex is against the Ten Commandments." Morris's book is suspect insofar as he deliberately transformed himself into a character, a buddy of sorts, who follows Reagan throughout his career. Did Reagan actually say this, or did Morris also invent that passage in service to a higher "truth?" And even if Reagan said such a thing, there is a huge difference between expressing Biblical beliefs about AIDS's genesis and, as The Reagans originally claimed, condemning AIDS victims to die from their disease and speeding their demise through official negligence.

As much as Reagan evidently has exhibited tolerance of homosexuality in his private life, when it comes to public policy, he opposed the persecution of gays and devoted considerable taxpayer resources to AIDS research and treatment.

Could Reagan have said more about AIDS? Surely, and he might have done so were he less focused on reviving America's moribund economy and peacefully defeating Soviet Communism. Could he have done more? Of course. Who could not have? But the ideas that Ronald Reagan did nothing, or worse, about AIDS and hated gays, to boot, are both tired, left-wing lies about an American legend.

First published December 2003 in Huriyah, an online magazine for gay Muslims. Some names have been changed to protect the subjects' privacy.

Joseph is the sort of man who takes your breath away just to look at him, and makes your heart skip a beat when he gives a smile of recognition. He is a young black schoolteacher, which reminds me of a hunky physics teacher I had a crush on in high school. Ah, the fantasies that must swirl through his classroom! I met Joseph because we were both regulars at a neighborhood restaurant. He is troubled over his homosexuality, and wants to be straight.

Joseph is not the first man I have seen at war with his own nature. In 1990 I met Ahmed, a devout Muslim from Southeast Asia. On our first date, when I ordered a pork dish, he said that if I ate it he couldn't kiss me later, so I quickly ordered something else. It occurred to me that gay sex was at least as forbidden by his religion as pork, but I wasn't about to quibble. After passionate lovemaking, he whispered in great anguish, "You made me sin." It was heartbreaking. I wanted to throttle the religious teachers who had made this sweet and thoughtful man so miserable.

Over the next few years, I strove to help Ahmed overcome his guilt. We read the troublesome passages in the Qur'an together. I tried to put him in touch with other gay Muslims, but he resisted. I told him that Allah's most precious gift to him was his brain, and that using it to think for himself could not be a sin.

I quoted Galileo's argument that the book of the heavens is the direct handiwork of God, as opposed to the holy book which was taken down by human hands. Shall we not trust the direct handiwork of God before the indirect? I told Ahmed that he and his desire were the direct handiwork of God, and that the evidence of his own nature should trump that of any book.

Alas, I had no more luck with that argument than Galileo. Ahmed could not, or would not, overcome the homophobia of his upbringing and his culture. I even tried a more practical approach and suggested that if he was going to hell he might as well at least enjoy the ride, but that didn't work either. He was like William Faulkner's Emily, who clung "to that which had robbed her, as people will." He channeled his repressed passion into workouts and bicycle rides.

When I told Joseph about Ahmed, he told me that it was his story as well. He said that while his family loved him, as a black gay man he lacked community support mechanisms. It is hard to understand how someone so thoughtful and decent could look in the mirror and see wickedness. He has been celibate for two years, and if you saw the dashing lover he has withheld sex from - a successful black entrepreneur - you would join me in wanting to slap him out of it.

Joseph wanted to get married and have children, but his fundamental decency made him pause. He broke up with the woman he was dating, because he didn't want to marry her for the wrong reasons, and he knew he was still gay. Even though he has moved away, he remains inseparable from his former lover, who when I encountered him recently in the restaurant was on his cell phone with Joseph.

I had dinner with Joseph before he left town, and I told him the same things I had once told Ahmed: God did not make a mistake. You have a hard road to follow, but you cannot escape who you are. Be true to yourself. You have people who love you. You will not be alone.

Of course, the most heartfelt conversations cannot overcome a lifetime of having one's love denied and devalued. In the end, Joseph must choose within his own mind and heart where no one else can follow. Against the voices assuring him that gay is good clash those of anti-gay ministers and reparative therapists, the hopes and expectations of his family, and the continuing taboo against homosexuality in his community.

When I think of Ahmed and Joseph and so many others, I know the stakes. We must fight for our friends and lovers against the forces of invisibility and intolerance. Sometimes we will fail, and the frustrations will be great. Love makes us fight on - reason enough to give thanks in a dark season.

Did the Massachusetts high court really order the state to recognize gay marriages? That's certainly the way the decision in Goodridge v. Dept. of Public Health was reported in the media. It quickly became conventional wisdom.

Before a week had passed, however, revisionism began. According to the revisionist view, the Massachusetts court gave the legislature the choice whether to extend full marriage to gay couples or to give them the legal benefits of marriage under some other name. The revisionist view is being advanced by the Massachusetts governor and the state's attorney general, who oppose gay marriage. It is also being advanced by some who support gay marriage but who fear a devastating political backlash.

Are the revisionists right? Will civil unions suffice, as they did in neighboring Vermont three years ago when that state's highest court also addressed marriage discrimination?

The revisionist view has some support in the opinion. Andrew Koppelman, one of the leading gay-rights legal scholars in the country, argues the court "did not decree that same sex couples were entitled to marry."

He bases this conclusion on three aspects of the decision. First, discussing the actual remedy given to the gay couples, the court said only that they were entitled to "the protections, benefits, and obligations of civil marriage." These things may be provided without attaching the word "marriage" to them.

Second, the court did not order the state to issue actual marriage licenses to gay couples.

Third, the court gave the legislature 180 days to remedy the problem. This makes no sense, Koppelman maintains, unless the legislature had some option other than simply to give gay couples marriage - a remedy the court itself easily could have imposed.

To these three arguments a fourth might be added: while a court is properly concerned about discrimination in substantive rights, it has no business telling legislatures what they must call those rights. As long as the legislature has given gay couples all the privileges of marriage, this argument holds, it may call that package "marriage" or "civil unions" or "fried green tomatoes."

There's an additional concern. To read the decision as requiring marriage may scare the state into amending its constitution. What's far worse, it may scare the country into adopting a federal constitutional amendment that would not only ban gay marriages but also civil unions and other forms of recognition. Koppelman, who supports gay marriage, urges activists to wait "a decade or two" before pressing for it.

I think the revisionists read both the opinion and the political climate the wrong way.

As for the opinion, it's true the court noted the exclusion of gay couples from marital "protections, benefits, and obligations." But it did so to emphasize one reason why marriage is so important. The Massachusetts court also recognized that "tangible as well as intangible benefits flow from marriage." The tangible benefits (filing joint tax returns and the like) can be captured by a marriage equivalent, but the intangible benefits (historically grounded social recognition) cannot fully be. So what it's called matters.

Notably, in fashioning its remedy, the court neither mentioned the Vermont example nor explicitly gave the state legislature an alternative to marriage, as the Vermont court did. Instead, the court followed the model of a Canadian court last summer by stripping the opposite-sex requirement from the definition of marriage itself. "We construe marriage to mean the voluntary union of two persons as spouses," the Massachusetts court declared.

While it's true the court did not order the state to issue marriage licenses to gay couples, that's not what they asked for. They asked only for the court to declare unconstitutional marriage discrimination against same-sex couples, which the court did by changing the definition of marriage to conform to state constitutional requirements.

What, then, is the Massachusetts legislature supposed to do in the next six months? Marriage discrimination against same-sex couples is rife in state law. The legislature, not a court, is best suited to deciding how to rewrite those discriminatory provisions. That's what the legislature should do with its time if it wants to comply with the decision, not struggle to find ways to give gay couples a separate but equal status.

As for the politics, fears of a catastrophic backlash are probably exaggerated. Polls in Massachusetts show residents favor the decision by a 12-point margin and oppose a state constitutional amendment by a 17-point margin. As I wrote in this space last month, polls on this issue probably tend to exaggerate support for us. But we're already in a better position than we were in the immediate aftermath of the Vermont opinion, when a majority of that state's citizens opposed a more moderate result. Since a state constitutional amendment in Massachusetts requires eventual voter approval and since such a referendum could not be held until November 2006, there's time between now and then to calm fears.

As for a federal constitutional amendment, the prospects are even dimmer. It's hard to amend the Constitution, especially when one of the major parties opposes it, as the Democrats do. Even conservatives are divided on the issue, some because they've moderated on homosexuality and some because they believe states ought to make their own decisions about marriage.

If the Massachusetts decision sticks and we get our first experiment in real gay marriage, 2003 will be remembered as the year we turned a corner toward full equality.

First published on Nov. 26, 2003, in the Chicago Free Press.

In an opinion issued Nov. 18, Massachusetts' Supreme Judicial Court struck down the state's denial of civil marriage to people of the same sex, becoming the latest, but no doubt not the last state supreme court to affirm the full civil equality of gays and lesbians before the institutions of the law:

"The question before us is whether...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 state) has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

The important point to notice at the outset is the court did not assume that the seven same-sex couples who were plaintiffs had to prove they had a specific right to civil marriage. Instead the court began with the assumption that people have a right to marry and the state had the burden of defending its prohibition of same-sex marriage.

In doing so the Massachusetts court followed the lead of the U.S. Supreme Court's 2003 Lawrence decision decriminalizing sodomy, where the U.S. court said, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct," and placed the burden on Texas to justify its sodomy law.

But the Massachusetts court went further to adopt a fundamentally libertarian approach to government and law, affirming that people have, or should have, a fundamental right to do as they wish in the absence of some rational basis for prohibiting them.

"The Massachusetts Constitution protects matters of personal liberty against government incursion. ... The individual liberty and equality safeguards of the Massachusetts Constitution protect both 'freedom from' unwarranted government intrusion into protected spheres of life and 'freedom to' partake in benefits (such as civil marriage) created by the state for the common good."

Justice Greaney put it more tersely in a concurring opinion: "The right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference."

The court then asked whether - absent persuasive reasons otherwise - the freedom to marry included freedom to marry a same-sex partner and concluded that it did: "The liberty interest in choosing whether and whom to marry would be hollow if the commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage."

Or as Justice Greaney put it, "The right to marry...is essentially vitiated if one is denied the right to marry a person of one's choice. ...The equal protection infirmity at work here is strikingly similar to ... the invidious discrimination perpetuated by Virginia's anti-miscegenation laws" struck down by the U.S. Supreme Court in Loving vs. Virginia.

The court then examined the state's arguments for prohibiting same-sex marriage and found them either factually incorrect or contrary to existing public policy.

The state first argued that the primary purpose of marriage is procreation. "This is incorrect," the court said flatly, noting that the state does not require opposite sex couples to have the ability or intention to conceive children.

Instead, the court patiently instructed the state, "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" (emphasis added).

The state argued second that limiting marriage to opposite-sex couples "ensures that children are raised in the 'optimal' setting." But the court pointed out that the state already recognized and accepted many alternative child-rearing configurations and the state had already acknowledged that same-sex couples may be "excellent" parents.

For that matter, the court added, excluding same-sex couples from civil marriage ran counter to the state's vaunted concern for children by preventing children raised by same-sex couples from enjoying the assurance of a stable and assured family structure.

The state argued third that prohibiting gay marriage conserved state and private financial resources since same-sex couples were less financially dependent on each other and so had less need of the tax advantages of marriage or private health plans that include spouses.

But the court pointed out that was contrary to current public policy: "(M)arriage laws do not condition the receipt of public or private financial benefits to married individuals on a demonstration of financial dependence on each other."

And so, the court repeated with evident exasperation, that the state "has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so. ...It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex."

In sum, the court said, the absence of "any reasonable relationship" between a same-sex marriage ban and public health, safety or general welfare, "suggests that the marriage restriction is rooted in persistent prejudices against persons who are...homosexual."