ATTORNEY GENERAL TOM REILLY must be thankful for the unrelenting media coverage of the Catholic Church’s sex-abuse cases. (To read the Phoenix’s groundbreaking coverage of the issue, click here.) The news has overshadowed the embarrassing arguments made by his office in the most important civil-rights lawsuit the state has faced in decades, over whether gay and lesbian couples should have the right to marry.
Last year, seven gay and lesbian couples sued the Commonwealth’s Department of Public Health for refusing to issue them marriage licenses. On March 13, Superior Court judge Thomas Connolly heard arguments in the case.
Assistant Attorney General Judith S. Yogman argued that the issue should be determined by the legislature, not the courts. In a memo to the court (read it online at www.glad.org/AG_memo.pdf), the Attorney General’s Office noted: "Although public attitudes toward nontraditional families have evolved ... permitting same-sex couples to marry would nevertheless constitute a ‘radical change in established public policy,’ ... which should be left to the Legislature, not the courts, to accomplish." The memo goes on to document substantial public opposition to same-sex marriage, including the fact that in the last presidential election "all of the Democratic and Republican candidates for president and vice president" opposed the idea.
Is Reilly serious?
If similar logic had prevailed just three decades ago, the Supreme Court would never have decided Loving v. Virginia, which struck down state bans on interracial marriage. Important public policy, such as medical use of marijuana, is sometimes decided by popular referendum. In the arena of civil rights, however, the minority requires protection from the majority. That’s why we have courts.
But it gets worse. The AG’s memo goes on to outline reasons why the state legislature might want to keep marriage heterosexual-only: the original drafters of the Commonwealth’s marriage statutes never intended gay and lesbian couples to marry; the purpose of marriage is procreation; children are best raised in homes headed by heterosexual couples; and opening marriage to same-sex couples will put financial pressure on insurers and employers.
These same arguments were made in similar lawsuits in Hawaii, Alaska, and Vermont — without success. They failed for one simple reason: they don’t make any sense.
We do not live in a world that stands still. Even if the lawmakers of 200 years ago did not intend gay and lesbian couples to marry, that doesn’t mean that they can’t, or that the wording of current law doesn’t allow them to. Indeed, the plaintiffs’ attorneys argue that refusing to allow gay Bay State couples to marry violates their rights to free expression and intimate association under the Massachusetts Constitution. In other words, the law is contradictory. The state in this case should be arguing to expand the franchise of human rights — not to restrict it. History has shown that those who expand civil liberties are right. After all, there was a time in this country when women weren’t allowed to vote and it was legal to own slaves.
And since when has marriage in Massachusetts been predicated on procreation? The Department of Public Health doesn’t insist on fertility tests for prospective brides and grooms before issuing marriage licenses. Nor are licenses revoked from couples who remain childless after several years of marriage. And marriage licenses are given to opposite-sex couples who are beyond their child-bearing years. Yet the state argues in its memo that "[c]onsidering marriage’s central purpose of furthering procreation, it is not irrational for the Legislature to permit marriage between opposite-sex couples, who are at least theoretically capable of procreation on their own, but not between same-sex couples, who are not."
Interestingly, five of the seven couples suing the state are parents; one of the plaintiffs is a grandfather. Modern medicine has made it possible for many more couples — be they gay, lesbian, or heterosexual — to have children than would succeed "on their own."
The next argument — that children are best raised in families headed by heterosexual parents — strains the boundaries of common sense and existing state policies and practice. Is the state saying that the hundreds of children in its foster-care system would be better off with their biological parents (the overwhelming majority of whom are heterosexual) than with homosexual foster or adoptive parents? Of course not. If it were, the state would ban gay couples from becoming foster or adoptive parents. But state policy in this area is clear: gay men and lesbians are welcome as foster and adoptive parents.
Meanwhile, mainstream child-care professionals, most notably those represented by the American Academy of Pediatrics, recognize that a home headed by gay or lesbian parents can be a safe and nurturing place for a child. In February, the academy came out in favor of "second-parent adoptions," which allow the non-biological parents of children born to gay couples to legally adopt their children. The academy noted that "children with parents who are homosexual can have the same advantages and the same expectations for health, adjustment, and development as can children whose parents are heterosexual."
The last argument — that it would cost too much money to grant marriage rights to gay couples — is simply absurd. Since when does expense justify discrimination? And if marriage is so costly to employers and insurers, why is the federal government currently waging a campaign to encourage more poor people to marry?
These arguments went nowhere in the courts of Hawaii, Alaska, and Vermont. In the first two states, the state constitutions were eventually amended to ban gay and lesbian marriage. In Vermont, the legislature devised a parallel system of civil unions that grant gay and lesbian couples the same rights that marriage gives heterosexual couples.
In defending the state’s policy, Reilly is headed for certain defeat. Of course, Reilly’s office demands that he defend the state when it is sued. But in recent months, he has been willing to expand the definition of his job to advocate on behalf of those who suffer unfair treatment. For example, he applied significant pressure to former Red Sox CEO John Harrington to get more money from the team’s sale allocated to the Yawkey Trust, which benefits Massachusetts charities. He also tried to obtain influence in the hiring and training of priests to ensure that the Boston archdiocese was dealing with the issue of pedophile priests.
So why hasn’t he shown similar willingness to advocate for the dispossessed on the question of marriage rights for gay and lesbian couples? Massachusetts deserves more when it comes to such an important issue.
Are the points made in the Attorney General's memo preposterous? What do you think? Send an e-mail to letters[a]phx.com or voice your opinion here in the Phoenix Forum.