February 05, 2004,
There they go again: the "band of four," the slim majority of the Supreme Judicial Court of Massachusetts, the band that took it upon itself to remodel the laws of marriage in Massachusetts.
In November the court had proclaimed that there was no rational basis for the laws that, for centuries, have restricted marriage to a couple drawn from the two sexes. The majority on the court had been candid enough to admit that neither the constitution nor the laws of Massachusetts had ever contemplated the possibility that "marriage" could encompass two people of the same sex. In order to reach its result, the court had to invoke a federal case: one decided last year, in which the U.S. Supreme Court struck down a Texas sodomy statute. Strictly construed, the decision had overturned a law that attached criminal penalties to sodomy in private settings. But that decision has been taken to mean that it is wrong to cast any judgment, or draw any adverse inference, from private sexual acts. This sweeping rhetoric will come down to earth before long when a court has to decide whether the custody of a child may be awarded to a father who has shown, in private, a profound taste for sado-masochistic sex, or even alliances with animals. But the Supreme Judicial Court in Massachusetts was willing to soar for a while in the currents of sentiment and classify as irrational and unconstitutional the laws that have governed marriage in Massachusetts as long as memory has runneth.
There is a novelty, though, under the laws of Massachusetts: A house of the legislature may actually come before the state supreme court with the draft of a bill, and seek an advisory opinion on the constitutionality of the measure. That kind of arrangement may effectively constitute the court as a third chamber of the legislature though the way things are going of late, the court may take that as a demotion. The supreme court had given the legislature 180 days to provide some plausible alternative to same-sex marriage, and the senate, eager to please, tried out a scheme of "civil unions": Every benefit of marriage, in taxes or property, could be conferred, and the only thing held back was the name of "marriage" itself. The whole thing had the aspect of a contrived caper, concealed as a maneuver to avoid same-sex marriage. In point of fact, the aim of the bill seemed to be to "sap" or undermine the conviction that supported the traditional laws of marriage. If a legislature talked itself into conferring on couples of the same sex virtually every benefit and privilege associated with marriage, it would seem in time only a carping, curmudgeonly refusal to recognize, in name, what had been recognized fully in substance.
The majority on the Supreme Judicial Court picked up on that matter at once. But instead of using that offering as an artful device to impose, in steps, its own policy, the majority rejected the proffer with a certain contempt. "Segregating same-sex unions from opposite-sex unions," said Chief Justice Marshall, "cannot possibly be held rationally to advance or 'preserve'...the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources." The majority apparently thought it could turn away from the finesse, the peace offering, and go for bigger stakes. In that move, the band of four might have overplayed its hand. But the judges also wrought better than even they knew, for they also delivered themselves here of the most searing criticism that has yet been made of the whole scheme for contriving "civil unions" as a surrogate for marriage. The argument might be condensed in this way: If the legislature is willing to grant every legal benefit and attribute of marriage to a couple, but simply holds back the name of "marriage" for couples of the same sex, the implication should be clear: There is something in that class of persons not exactly worthy of the name of marriage. Consider how the same legislation would have appeared if the substance of marriage were given to couples, but only "civil unions" given to dwarves. Or people with disabilities. Or Jews and blacks. In other words, it is precisely the scheme of creating the parallel substance of marriage, and withholding the title, that picks out classes of people in a demeaning way. And the truth that comes crashing through in this clumsy opinion is this: that the scheme of "civil unions" is simply geared to keep generating invidious distinctions, in the way that the traditional laws on marriage do not. Brothers and sisters, fathers and daughters were not demeaned when they were barred from marrying one another. Nor were two men, seeking to marry each other. The laws that prohibited these unions implied no vilification of men or fathers, brothers and sisters as individuals.
Justice Martha Sosman, in dissent again, and ever clear-headed, pointed out the serious barriers in the landscape to same-sex marriages created in Massachusetts. Thirty-eight states now refuse to honor those marriages; their courts will not be available to enforce the obligations of those unions, or deal with their dissolution. Several years ago some of us worked on the Defense of Marriage Act for the federal government, an act that simply refused to consider, as a marriage, anything but the union of a man and woman. As Sosman points out, that modest measure offers the most severe impediment: Same-sex couples will not be able to file joint tax returns, or claim any of the benefits that may flow to spouses through the mass of federal programs. She suggests that even a facsimile of marriage, in a civil union, might provide then a route for benefits that the claim of marriage would foreclose. And in that sense, the legislature may have a "rational" enough basis for justifying this marriage in camouflage.
In the meantime, it might be said that the court itself has offered a series of slogans searching for a principle; and yet that may impute too high a reach to Chief Justice Marshall and her colleagues. The judges in the majority were mainly making it clear that they were in charge, and would have nothing less than what they had "invited" the legislature to produce. Those folks seasoned in the legislature must retain some ordinary reflexes found among ordinary human beings, and if they retain at least some minimal self-respect, this gesture of contempt by the court should be enough to push them over the edge. It is not enough to put off for two years a constitutional amendment. There are things to be done even now. The governor seems to be studying again the lessons taught by Lincoln on the limits of the court and the constitutional responsibilities of the political branches. As Lincoln reminded us, the executive and the legislature could respect the disposition of any case in regard to the litigants, but they may not be obliged to accept the principle articulated by the court. The court might issue injunctions to registrars throughout the state, ordering them to give marriage licenses to people of the same sex.
But the constitution of the state is clear that the laws on marriage belong mainly in the domain of the legislature, and the legislature has the decisive authority to determine the terms on which courts may issue injunctions. Exercising that power in the past, the legislature had diminished the authority of the judges to intervene in labor disputes, and leap in with injunctions to break strikes. By any reckoning, the laws of marriage would be at least as fundamental as the laws on labor and servants. The powers are there to be used. The main question then is whether the legislature of Massachusetts, happily composed as it is of members drawn from both sexes, can summon either the testosterone or the simple nerve to take their responsibility, and to vindicate "the right of a people to govern itself."
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.