E-Mail This Article to a Friend Reacting to the SJC’s ruling in three parts A historical comparison. Showing how the decision strengthens the institution of marriage. And a warning.
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WHILE THE Massachusetts Supreme Judicial Court made history this week with its ruling allowing same-sex couples to wed, echoes of the past could be heard in the opinions of the three dissenters. Justices Martha Sosman and Robert Cordy, in particular, worried about the well-being of children raised by gay and lesbian couples: "Are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes?" asked Sosman.

Of course, we’ve heard this before. The welfare of children was one of the pet arguments used by racists opposed to the marriages of interracial couples. Indeed, in Loving v. Virginia, the 1967 US Supreme Court case that finally struck down anti-miscegenation laws, Virginia’s attorney general argued that children were better off being raised by two parents of the same race because such marriages are more stable. He was stumped when a Supreme Court justice shot back with this observation: "You don’t know what is cause and what is effect. Assuming the validity of these statistics, I suppose it could be argued that one reason marriages of this kind are sometimes not successful is the existence of the kind of laws that are at issue here, and the attitudes that those laws reflect, isn’t that correct?"

The invective we’ve heard in reaction to the SJC’s ruling — William Donahue, president of Catholic League, this week termed the idea of marriages between same-sex couples "utterly absurd" and compared them to incest — mirrors the public dialogue on whether marriages between people of different races should be legalized. Take this 1959 pronouncement from the trial judge’s opinion in Loving v. Virginia: "Almighty God created the races white, black, yellow, malay [sic] and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

It’s incredible to think of it now, but in 1967, when the US Supreme Court finally struck down anti-miscegenation laws, 16 states had such laws in effect. (Alabama did not officially strike its anti-miscegenation law from its general laws until 2000.) And public opinion was strongly in favor of these laws. In 1965, a Gallup poll found that 42 percent of Northern whites and 72 percent of Southern whites supported outlawing the marriages of interracial couples. Fortunately, the justices who eventually ruled these bans unconstitutional did so on the basis of the law and not by wetting their index fingers and sticking them in the wind. It took courage to do their constitutional duty. And it’s that very same courage we saw this week from the SJC.

THE FOUNDATION on which cultural opposition to marriages of same-sex couples rests is the premise that such marriages will weaken the marital institution. Hence the politically motivated phrase "Defense of Marriage Act." That the legalization of such unions will have the opposite effect is so obvious that it’s easy to miss.

Chief Justice Margaret Marshall’s opinion is an affirmation of marriage as a social construct for two people’s happiness, regardless of whether they are straight or gay. One of the most popular arguments put forth for denying lesbian and gay couples the right to marry is that marriage is solely for procreating. As proponents of civil-marriage rights for same-sex couples, including the plaintiffs in the Goodridge case, have pointed out many times, this argument makes no sense: we do not require evidence of fertility before granting marriage licenses to heterosexual couples, nor do we revoke such licenses if children are not produced after the nuptials take place. A more honest rebuttal to this argument, however, is that it’s simply offensive. What business does the state have in heaping this burden on any couple, gay or straight?

Fortunately, we live in a society whose views of marriage have evolved. Today, the institution is about love. Letting lesbian and gay couples into the institution makes this even more obvious.

DON’T MISTAKE House Speaker Tom Finneran’s silence in reaction to the Massachusetts Supreme Judicial Court’s ruling for speechlessness. The legislature’s smartest strategist was no doubt plotting how best to blunt the impact of the SJC’s decision.

Unlike Governor Mitt Romney, who indignantly flapped on in public about how he disagreed with the decision and wanted to amend the state Constitution, Finneran likely understands that changing the Constitution to define marriage as a heterosexual coupling will do nothing to stop the civil-rights juggernaut. First, the process would take, at minimum, three years. While it’s entirely likely the state legislature will pass a defense-of-marriage-like measure in two successive legislative sessions, as is required to amend the Constitution, how will the public react in 2006 when the measure is put before it for final approval? By then thousands of gay couples from across the Commonwealth will have wed (not to mention thousands more from around the country). It will surely be obvious by then to a majority of Bay State residents — who, polls already show, favor civil-marriage rights for gays by a slim margin — that marriages of same-sex couples do not mean the "collapse" of society, as the hyperbolic J. Edward Paulick of the Massachusetts Citizens for Marriage warned on Tuesday. Besides, how would the state go about dissolving those unions?

As Finneran already knows, a more pernicious response by the legislature, which was given a 180-day window in which to react to the ruling, would be to do something unthinkable a mere six months ago: pass a Vermont-style civil-union bill that creates a separate-but-equal track for lesbian and gay couples who wish to marry. Activists who have been lobbying the legislature to support the various civil-marriage and civil-union bills now before it say that the votes are probably there to pass such a measure. Indeed, the strongest signal yet that Finneran would back a civil-union bill came early this month when it was revealed that State Representative John Rogers, a Finneran deputy who has sponsored DOMA-type legislation in the past, was working with a group of progressive legislators and gay activists to craft a civil-union bill (see "Marriage Now," Editorial, November 7). Former Senate president Tom Birmingham tells the Phoenix that he believes this is exactly what the legislature will do.

It’s an open question whether such a move would conform to the SJC’s ruling. Implementation of the high court’s ruling was delayed specifically to give the legislature time to "take such action as it may deem appropriate in light of this opinion." Does this mean that the SJC would find a civil-unions solution constitutionally acceptable? Proponents of civil-marriage rights for same-sex couples say it wouldn’t; opponents say it would. Either way, such a move would confuse the issue and delay — quite possibly for years, if not decades — the issuance of marriage licenses in this state to lesbian and gay couples.

As much as we may want to, now isn’t the time to bask in the glow of the SJC’s fair-minded and historic ruling. Now is the time to write to state representatives and senators and make clear that nothing but full marriage rights for same-sex couples is acceptable. Contact House Speaker Tom Finneran’s office at (617) 727-3600. Contact Senate president Robert Travaglini’s office at (617) 722-1500. More important, call your local representative and senator; you can find complete listings, with contact information, on the Web at www.state.ma.us/legis/legis.htm.

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