Some Blog summaries on today's Court decision. They are faster, and getting better, than the Main Media.
CONSERVATIVE CRUST:
Tolerance v. Endorsement
Bork sums up my opinion on gay marriage here: Constitutional amendment.
From the Massachusetts court decision today:
Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. 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 Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
The court cites as a reason to extend marriage to gays that the "vital social institution" of marriage "nurtures love and mutual support"; "brings stability to our society"; "provides an abundance of legal, financial, and social benefits"; and "imposes weighty legal, financial, and social obligations."
But it is not marriage per se that has done all these things; it is heterosexual marriage, the only kind there has been, that has nurtured love and mutual respect; brought stability to society; provided legal, financial, and social benefits; and imposed legal, financial, and social obligations. No matter how you feel about homosexuality, as either a sin or a lifestyle choice, homosexual marriage and heterosexual marriage cannot be the same thing. It is just a pesky fact of nature. For this ruling to cite the benefits of heterosexual marriage as justification for homosexual marriage is neither here nor there; they are two different things. One could just as easily cite those same reasons for not extending marriage to gays; in fact, many have cited those things as reasons because there is ample evidence that homosexual marriage would significantly harm, if not destroy, that which heterosexual marriage has provided for society.
Furthermore, the ruling claims that the question before it is whether "the Commonwealth may deny the protections, benefits, and obligations" of marriage to same-sex unions. The wording here is wrong. Marriage has always been between a man and a woman. Therefore, it has nothing to do with denying anything to anybody. The question before the Massachusetts court is whether it should extend marriage to gays. This is an important distinction. It has to do with tolerance versus endorsement. The majority of Americans does not believe that same-sex unions are good for society; therefore, while our government should promote tolerance by providing legal protection to those individuals, it cannot endorse their actions by providing a legal right.
The Massachusetts court has addressed the wrong question, cited the wrong justifications, and not surprisingly, made the wrong decision.
conservativecrust.com
VOLOKHl
[Eugene Volokh, 5:47 PM]
The benefits of the Defense of Marriage Act for pro-gay-marriage forces: The Massachusetts decision, it seems to me, illustrates the benefits of the Defense of Marriage Act (which says that states need not, and the federal government may not, recognize other states' gay marriages) to the pro-gay-marriage movement. The movement certainly has lots of reasons to dislike DOMA; but this case shows that the movement also has reasons to like DOMA, too.
There will doubtless be an attempt to overturn this decision through an initiative in Massachusetts. There will also be a renewed attempt to do so through a federal constitutional amendment.
If there seemed to be a substantial chance that this decision would constitutionally require other states to recognize Massachusetts gay marriages, then these attempts would be vastly strengthened. Gay marriage opponents from California, Texas, and the other states would funnel money into the Massachusetts initiative campaign. They'd lobby their Congressmen to quickly enact the Federal Marriage Amendment. And their position would be very sensible -- they wouldn't be meddling in the affairs of another state; they'd be preventing that state's court from interfering with the practices of their own states.
DOMA isn't a perfect barrier to the automatic recognition of Massachusetts gay marriages in other states; among other things, there are some constitutional doubts about its validity, though I think it will be upheld. But to the extent that DOMA is seen as a barrier, there'll be much less out-of-state effort expended on trying to overturn the Massachusetts decision. (Not zero, but much less.)
The Massachusetts decision thus poses, absent DOMA, the risk of a "legal effects slippery slope": The legalization of gay marriages in Massachusetts (A) may have led (again, not certainly but possibly) to other states being required to recognize Massachusetts gay marriages, too (B). DOMA diminishes (not eliminates, but materially diminishes) the risk of this slippery slope -- and therefore makes the first step (A) somewhat more likely to be retained by the Massachusetts voters.
[Eugene Volokh, 4:54 PM]
Polygamous and incestuous marriages: By the way, concerns that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible. The court says that the parties "do not attack the binary nature of marriage" or "the consanguinity provisions." (See also footnote 34, "Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.") But the court's reasoning seems to apply equally to those, too.
The court reasons that "the right to marry means little if it does not include the right to marry the person of one's choice," but while it qualifies this as "subject to appropriate government restrictions in the interests of public health, safety, and welfare," it's far from clear that a court would find that "health, safety, and welfare" would be hurt by adult polygamous marriages (assuming all existing partners in the marriage consent to the addition of another). Likewise for adult brother-sister marriages; as I mentioned several months ago, I think the genetic harm argument doesn't really work here -- after all, we don't generally ban marriages between people who have serious genetic diseases, even if the odds of a defect in their children are much higher than for brother-sister marriages.
Similarly, the court rejects the government's "foster the best environment for raising children" argument by saying that "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." Seems to apply equally to children of polygamous marriages or of incestuous marriages. In fact, why isn't the desire to have multiple committed lifelong partners, or to have a relationship with one's sibling itself a "sexual orientation"?
I doubt the court would uphold a constitutional right to polygamous or incestuous marriages within the next year or two. But over time, if, for instance, a polygamists' rights movement arises -- not implausible, given that some religions practice polygamy -- a court might well do this, citing the Massachusetts decision as an eminently logically applicable precedent.
Some might think this wouldn't be very bad; and some might think that, even if it would be bad, it involves a modest probability of only a small harm, and having a constitutional right to homosexual marriage is right enough to justify that risk of a wrong consequence. But I don't think one can ridicule arguments that a constitutional right to homosexual marriage may lead to rights to polygamous or incestuous marriage. Given the text of the Massachusetts decision, the arguments seem eminently plausible.
volokh.com |
