IGF CultureWatch

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."

First published Nov. 20, 2003, in The Dartmouth.

Anniversaries do not always neatly coincide with history, but invocations of the past often have much to say about the realities of the present.

These thoughts came to mind as I was reading David Levering Lewis's biography of W.E.B. DuBois. In 1906, DuBois, author of The Souls of Black Folks and founder of the NAACP, met with others in Harper's Ferry, West Virginia, for the second annual meeting of the Niagara Movement. The choice of location was symbolic: they were commemorating the 100th anniversary of John Brown's birth.

Brown, a white abolitionist who led a raid on the federal armory in Harper's Ferry in hopes of starting a black uprising, was born in 1800, so those who met in Niagara were six years late in their remembrance. And here I am, almost three years early in remembering and invoking the 1906 Niagara meeting. Two centenary remembrances in spirit only. But just as the events of 1906 caused DuBois and others to think of Brown then, so do the events of 2003 cause me to recall Niagara now.

The connections I see between then and now revolve around civil rights for gay Americans. For those who object to comparing black civil rights with gay civil rights, let me, a black gay man, cite Mel Boozer, another black gay man of a generation ago. "I know what it means to be called a nigger. I know what it means to be called a faggot. And I can sum up the difference in one word: none." To dismiss the black gay experience as unimportant to a discussion on gay civil rights is akin to dismissing the Harvard-trained DuBois as unrepresentative of blacks and thus unqualified to speak about black civil rights.

He was qualified, and for the Niagara conference, he authored an Address to the Country. "In the past year," DuBois wrote, "the work of the Negro-hater has flourished in the land." That work consisted of disenfranchising black voters, discriminating against blacks in travel and public accommodations, and undermining the education of black children. Nothing close to this type of systemic assault has yet affected gay Americans. But we are seeing the stirrings of this type of majority opposition to the gay minority.

The work of the gay-hater has flourished in the land this past year. In the wake of positive court rulings on behalf of gay Americans, some Americans are demanding that lawmakers bring the "gay scourge" under control, by state law at a minimum, by federal constitutional amendment if necessary. It reminds me of calls in the early twentieth century to repeal the Fifteenth Amendment, which gave blacks the right to vote, or calls mid-century, in the wake of Brown v. Board of Education, to restrict the federal government in race relations or to make busing for integration illegal.

DuBois wrote that "against this [systemic discrimination] the Niagara Movement eternally protests ... We claim for ourselves every single right that belongs to a freeborn American, political, civil and social; and until we get these rights we will never cease to protest and assail the ears of America." DuBois upset many, but he was right. Blacks were equal in fact and thus must be made equal in law.

The fundamental reason why gay Americans are not yet equal in law - why gays cannot legally protect their relationships and families to the extent that straight people can, cannot serve in the military, and in some places cannot adopt - is because most Americans refuse to accept gay people as equal in fact. The majority of Americans presume that gays are inferior, just as a majority of white Americans (especially in the South) presumed in 1906 that blacks were inferior. And just as whites then were unapologetic about their beliefs, so many straights today are unembarrassed to confess that, to them, gay people are sub-human or, more perniciously, simply need to act straight - have to "pass" - in order to eliminate the "gay problem." But gays will no longer participate in self-oppression; we don't need to pass.

DuBois listed five demands: the right to vote; the elimination of separate accommodations (which he called "un-American, undemocratic, and silly"); the freedom to associate; equity in law enforcement; and proper education. The outer two claims have no immediate parallel to the gay experience, but the inner three certainly do, as laws segregating and singling out gays persist.

DuBois provocatively asked: "Cannot the nation that has absorbed 10 million foreigners into its political life without catastrophe absorb 10 million Negro Americans into that same political life at less cost than their unjust and illegal exclusion will involve?" Again, in echo: cannot America make an equal number of gays fully enfranchised American citizens?

In his biography of John Brown, DuBois wrote that "the cost of liberty is less than the price of repression." And with the price tag of gay repression mounting - in special conclaves lambasting gay clergy, in conservative campaigns denouncing same-sex marriage, in taxpayer dollars fueling attempts to enact laws and amendments that would make gay Americans permanent second-class citizens - we would better use our fiscal and moral capital by giving gays freedom under the law.

John Brown's body may lie a-moldering in the grave, but the undying truth he stood for - freedom cannot be denied - marches on. DuBois knew and invoked that truth in his day. Let us fall into step with this truth now.