November 19, 2003,
It's going to take some time for the full implications of Goodridge vs. Massachusetts to play out. The most likely outcome is legal gay marriage in Massachusetts within six months; gay marriage as the key domestic issue in the upcoming presidential campaign; and a huge jumpstart for the drive to pass a Federal Marriage Amendment. Far from being a great victory, Goodridge is a serious tactical error on the part of the gay-marriage movement. By pushing gay marriage on a country that still opposes it, the gay-marriage movement has set itself up for at least the possibility of defeat. It would have been much smarter to wait.
The exact outcome of Goodridge is a bit murky. It's likely that Goodridge will result in legal gay marriage in Massachusetts within six months, but that is not the only possible scenario. Clearly, Goodridge rules it unconstitutional for Massachusetts to exclude same-sex couples from the benefits of marriage. The decision appears to go further still rejecting a civil-unions option that would confer the benefits, but not the status, of marriage upon same-sex couples. Goodridge appears to leave the final resolution of all this up to the Massachusetts state legislature. And that's where things get tricky.
The most straightforward reading of Goodridge leaves the legislature little choice but to rewrite the laws of marriage to accommodate same sex couples. Technically, the state legislature could circumvent the impact of the court's decision by amending the state constitution to define marriage as the union of a man and a woman. But that cannot be done in the six months the court has granted the legislature to act. Given the popular vote and multiple legislative sessions required to amend the Massachusetts state constitution, it would take until 2006 at the earliest to make the change. So whether the legislature wants to amend the constitution or not, it seems clear that the Massachusetts Supreme Judicial Court will mandate gay marriage six months from now.
This means that the court is simply giving the legislature the opportunity to clean up the complications in the law that would flow from same-sex marriage. In effect, the court is telling the legislature, "Look, we're going to legalize gay marriage whether you like it or not. Without the appropriate legal changes, that could be a very messy process. So we're giving you six months to adjust the marriage laws to make this change go smoothly. If you don't go along, we're going to rule existing marriage law unconstitutional anyway."
So given the ruling that it is unconstitutional to deny same-sex couples the right to marry, the legislature appears to have no real option besides rewriting the marriage laws to accommodate same-sex couples. Nonetheless, things are more complicated than they would appear to be from a straightforward reading of Goodridge.
There is no guarantee that the Massachusetts legislature will do what the court is pushing it to do. There is clearly a movement in the legislature to pass either Vermont-style civil unions, or some other more limited sort of benefits package for same-sex couples. Massachusetts governor Mitt Romney has criticized the court's ruling and pledged support for a constitutional amendment but also for some sort of limited benefits package. Even if the legislature were to revise the marriage laws to include same-sex couples, Governor Romney might veto the bill.
That would force a showdown between the legislature and the court. The clear meaning of Goodridge would appear to obligate the Supreme Judicial Court to declare Massachusetts's marriage law unconstitutional if it falls anywhere short of fully legalizing same-sex marriage. Neither a limited benefits package, nor unions that are marriage in all but name, would be enough to stay the court's hand.
Yet it would be extraordinarily awkward for the court to invalidate a freshly passed benefits package or civil-unions law. As it is, the court is riding roughshod over the legislature by reading its own policy preferences into the state constitution. But by invalidating a freshly passed legislative solution short of full gay marriage, the court would be making its usurpation of the legislative role spectacularly obvious. So while the court has tried to smooth out the practical complications of legalizing gay marriage by throwing the issue into the lap of the legislature, it has set itself up for what could easily turn into an embarrassing confrontation with an uncooperative assembly. If the legislature doesn't go along with the Court, it will either be publicly overridden, or the court itself will have to back down. Given the plain meaning of the decision, it's difficult at this point to see the Massachusetts Supreme Judicial Court doing anything six months from now other than mandating full same-sex marriage. On the other hand, if the legislature refuses to adjust the law, we'll have controversy and confusion.
POLITICAL HOT POTATOAll of this will be playing out during the presidential campaign. Given the plain meaning of Goodridge, the most likely outcome here is thousands of gay couples from throughout the nation pouring into Massachusetts six months from now to get married. They'll quickly return to their states and launch a series of lawsuits demanding recognition of their Massachusetts marriages. This will include an attempt to have the federal Defense of Marriage Act declared unconstitutional. The airwaves will be filled with coverage of the marriages and of the lawsuits. Every candidate for political office in the country, from the presidency down to state legislatures, will be forced to take a stand on gay marriage.
True, there is a chance that the Massachusetts legislature and/or governor will defy the court. And it is at least possible that such defiance might prompt the court to find a face-saving way to back down (say, by accepting a Vermont-style civil-unions bill). But given the wording of Goodridge, I think the court will be hard-pressed to do anything less than insist on full gay marriage, whether the legislature goes along with it or not. If the court does back down, it would stop the flood of couples into Massachusetts to marry, and would therefore stir up much less of a political firestorm during the presidential campaign than full legalization. But that is not the likely outcome. And in any case, this uncertainty has been purchased at the price of a six-month battle in the legislature that will rivet national attention. So on balance, no matter how the scenarios play out, Goodridge is likely to focus the presidential campaign and send the push for a Federal Marriage Amendment into overdrive.
The political implications of all this are dramatic. Massachusetts is going to become a byword for judicial activism and social division. That will not be good for Howard Dean (who is closely identified with Vermont's civil unions), for Massachusetts Senator John Kerry, or for the Democrats, who will be holding their convention in Boston.
Republican legislators will come under heavy pressure from their base to openly back the Federal Marriage Amendment. That will put Republicans from moderate districts in awkward positions. But that will be nothing compared to the Democrats' troubles. Most Democrats will probably distance themselves from gay marriage and endorse some sort of civil unions. But the Democratic base is deeply divided on this issue. Full gay marriage in Massachusetts will make it very difficult for Democrats to avoid intense pressure from their strongest supporters to come out in favor of gay marriage itself.
THE ISSUE OUTEDBut the most important consequence of Goodridge may be that the country will now get the honest debate on the gay-marriage issue that the media has managed to suppress up to now. Gay marriage has arrived in Massachusetts at a point when the larger public is opposed to the reform. What's more, three quarters of the states and the federal government have put laws or constitutional amendments in place that define marriage as the union of one man and one woman. Once it becomes apparent (and it will) that a judicial decision in a single and notably liberal state threatens to sweep all of those laws aside and impose gay marriage on an unwilling nation, all hell is going to break loose. The conflict between public opinion and high-handed judicial and media elites is about to be exposed with unprecedented clarity.
Media bias is nowhere greater than on the gay-marriage issue, and media bias cuts two ways. One the one hand, the media elite's need to recapture the Úlan of the civil-rights struggles of the early Sixties has succeeded in suppressing the real issues in the gay-marriage debate. The naive assurance of the folks who run the media and the courts that this is a simple choice between bigotry and civil rights has allowed them to take this decision out of the hands of the public, in good conscience.
On the other hand, our socially liberal elites have inadvertently set themselves up for trouble by misjudging both the public and the issue. With all the changes in marriage since the sixties, it is still for the most part a taken-for-granted institution. Marriage's real foundations and vulnerabilities remain essentially mysterious to most people. It is all too easy to toy with and damage the institution without half realizing what is happening. At a gut level, the public understands this. The balance of power of the gay-marriage issue is held by moderates who approve of increased social respect and tolerance for homosexuals, while also sensing that the institution of marriage is vulnerable to a major and poorly thought out social experiment like gay marriage. By pushing this reform on an unwilling public, the elites risk opening a debate on issues that they themselves don't even imagine exist.
So despite some slight uncertainty about whether the court might accept civil unions in lieu of gay marriage, the likelihood is that the gay-marriage issue has finally been blown open and loosed on a public that has no real desire, either for gay marriage, or for a divisive national debate. The courts, the Democrats, the media, and the gay-marriage movement itself will pay a price for this. It's too early to say who will win the national battle over gay marriage. What's clear is that this battle is now well and truly joined. And a victory that a more patient elite might easily have achieved in increments, has now been thrown into doubt.
Stanley Kurtz, an NRO contributing editor, is a fellow at the Hoover Institution.