Mar. 9, 2003
During the oral argument in Goodridge v. Dept. of Public Health, the Massachusetts lawsuit aimed at legalizing same-sex marriage, it was Justice Martha Sosman of the state's Supreme Judicial Court who put her finger on the crux of the case.
"Could it not also be framed," she asked Mary Bonauto, the lawyer for the gay and lesbian plaintiffs, that "you're seeking to change the definition of what the institution of marriage is?" After all there have been right-to-marry cases before, involving (for example) interracial couples, prison inmates, or the mentally retarded. But, Sosman noted, they "have not changed . . . the historical fundamental definition of what the institution is."
That's it in a nutshell. The plaintiffs are not asking for the right to marry, for each of them has exactly the same marriage rights as every other Massachusetts adult. What they really seek is to alter the legal definition of "marriage" so it encompasses something it has never encompassed before: same-sex unions.
Has the time for that alteration arrived? A case for it can certainly be made. After all, family law has changed profoundly in recent decades -- think of no-fault divorce, adoption by same-sex couples, or the expanded rights of single parents -- and it has become almost a mainstream opinion that the meaning of marriage should change with it. A forthright call for amending the marriage statutes so that men can marry men and women can marry women would be received sympathetically by a great many people.
But advocates of same-sex marriage who have embarked on a litigation strategy would rather not be forthright. To Sosman's observation that the plaintiffs' real goal is to change the definition of marriage, Bonauto replied, "I would respectfully disagree, your honor." She had no choice. To agree would have been to concede that her clients were before the wrong branch of government: It is the job of the Legislature, not the courts, to configure the structures of state law.
To agree would have been to concede something else, too -- something even more damaging to the plaintiffs' case: The changes wouldn't stop with same-sex couples.
There are three core elements to a legal marriage: It must be a union of (1) two people (2) of the opposite sex (3) who are not related. The Goodridge plaintiffs are asking the SJC to strike No. 2 -- to rule that denying a couple a marriage license because they are both men or both women is to violate their civil rights. "Because marriage is so centrally about an individual's love and commitment," their brief argues, "it is embraced within the sphere of privacy and self-determination protected by the liberty and due process clauses of the Massachusetets Constitution."
But if Core Element No. 2 can be struck down for that reason, so can No. 1 and No. 3. If the state has no right to deny a marriage license to would-be spouses of the same sex, on what reasonable grounds could it deny a marriage to would-be spouses from the same family? Or to would-be spouses who happen to number three or four instead of two?
Again it was Sosman who pointed out the obvious. If the ban on same-sex marriage is an unconstitutional restriction, she asked, why not the ban on polygamy? "What would the difference be? These are . . . consenting adults, saying this is the relationship we want."
Bonauto's answer was telling: She said that neither the Legislature nor the SJC had ever suggested that a marriage could comprise more than two people. The justices were kind enough not to point out that until fairly recently, no one had ever suggested that a marriage could comprise people of the same sex, either. But the implication of her words was unmistakable: Should the day come when demands for legalized polygamy (or polyandry) are heard, they would have to be taken seriously.
Other supporters of same-sex marriage imply the same thing. "To the best of my knowledge," writes Andrew Sullivan, one of the movement's most articulate proponents, "there is no polygamists' rights organization poised to exploit same-sex marriage to return the republic to polygamous abandon." Behind the tone of ridicule is an evasion: We don't have to talk about legalizing multispouse marriages, Sullivan is saying, because no one is making an issue of it. But you don't have to look very far to find advocates who are poised to do just that. Type the word "polyamory" into a search engine and see where it leads you. Or look up the ACLU's position on "plural marriage."
Is same-sex marriage a good idea? I think it is quite a bad idea, but I understand the arguments in its favor. And I can sympathize with committed gay and lesbian couples who want to change the definition of marriage in order to partake of its benefits.
But sometimes change destroys. No structure can stand for long when its bearing wall is removed. The bearing wall of marriage -- its central and universal defining characteristic -- is its heterosexuality. Knock that down, and what is left will become a ruin.