March 01, 2004,
In Massachusetts, legislators are frantically debating the wording of various state constitutional amendments that would overturn the Goodridge decision, in which, by the slimmest of 4-3 margins, the state's highest court declared it could find no rational reason why anyone would not want gay marriage.
The first "constitutional convention" met February 11, voted down several versions, and adjourned to March 11. Now influential opponents of gay marriage appear to be ready to sign on to a truly disastrous "compromise," a constitutional amendment that would a) declare "married" to be a unique status consisting of a man and a woman and b) simultaneously declare civil unions to be, now and forever, the exact legal and constitutional equivalent.
Some legislators are even quoting me in defense of this bill. "Civil unions," I wrote in the Weekly Standard, are "one bad step" away from a marriage culture, while gay marriage is "the end of the road."
Yes, that's true I wrote that. I did not, and do not, think a federal marriage amendment should try to ban civil unions. But constitutionalizing civil unions as the eternal equivalent of marriage is a wholly different, and much worse, proposition. It will not overturn Goodridge, it will ultimately affirm it. Here's why.
First, there is an obvious contradiction between the first statement and the second. If marriage is a unique status, why are civil unions given the equivalent status in the state constitution? Where legislation or wordings are self-contradictory, courts must step in to rationalize the meaning. And the Goodridge court has already declared that it sees no rational reason at all for treating marriage between men and women as special. (In fact, the court is so indifferent to marriage that, in a footnote, it suggested that while normal marriage is utterly irrational, abolishing marriage as a legal category "might well be rational and permissible...")
Far from reversing Goodridge, constitutionalizing civil unions will ultimately hand over to a court deeply hostile to marriage control over the legal expression of its meaning in the public square. Expect most of the negative consequences of gay marriage to issue from it immediately: Public schools will be forced to teach in sex-ed, home-economics classes, and abstinence education that same-sex unions are the legal equivalent of marriage; religious organizations will be forced to either treat same-sex unions as marriages or get out of the public square.
In fact, the consequences of constitutionally affirming civil unions are likely to be even more destructive than simply letting Goodridge stand. Affirming gay relationships becomes not a legislative proposal to address a social need, nor a mere expression of formal equality, but a substantive governing, constitutional principle: It will be open season on the Catholic Church and other religious groups and organizations that sustain a different vision of human sexual ethics. Hate-speech codes, yanking of broadcasting licenses, and termination of the tax-exempt status of traditional organizations just a few of the legal threats looming. Far-fetched? In Europe and Canada it is already happening.
The Goodridge decision was not about civil unions; it was about gay marriage. The people of Massachusetts, who are expressing rising opposition to gay marriage in the polls, deserve a clean shot at deciding the future of marriage in a constitutional amendment. But no amendment at all would be better than the supposed Massachusetts compromise. If no amendment can be passed this year, people can continue to organize and fight for a better amendment next year. And the federal marriage amendment could end up making Goodridge moot.
The first rule is: Do no harm. From a marriage point of view, the proposed amendment constitutionalizing civil unions takes a bad decision and makes it worse.