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February 4, 2004

The What Now in Massachusetts

I can't believe that anybody expected the civil union diversion to work in the case of Massachusetts. The court's Goodridge decision was built around 1) a redefinition of marriage, and 2) the application of a pure equal treatment rule to that definition. To allow a civil union compromise (which, given that the word following "civil" would have been the only difference, mattered hardly at all) would have been to admit the contempt for representative democracy that the Goodridge decision represented. As the court's latest decree puts it:

After reviewing the marriage ban under the deferential rational basis standard, the court concluded that the Department of Public Health "failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex." ... The Goodridge decision by the court made no reference to the concept of "civil unions," nor did the separate concurring opinion of Justice Greaney. Rather, it was the lawfulness under the Massachusetts Constitution of the bar to civil marriage itself, "a vital social institution," ... that the court was asked to decide. The court decided the question after extensively reviewing the government's justifications for the marriage ban.

In response to the plaintiffs' specific request for relief, the court preserved the marriage licensing statute, but refined the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others." ... The entry of judgment was stayed "for 180 days to permit the Legislature to take such action as it may deem appropriate." ... The purpose of the stay was to afford the Legislature an opportunity to conform the existing statutes to the provisions of the Goodridge decision.

What this document has essentially done is to state the extent of the court's previous actions more succinctly. It "refined the common-law definition of civil marriage" and sent the issue to the Legislature solely to enable that body to update the laws to conform with the new definition.

So now, barring federal action, only extreme measures remain if the advent of gay marriage is to be forestalled. The other branches of the Massachusetts government can come up with some creative way around the problem, such as requiring all marriage intentions for the next two years to be registered before May or, at least, putting a moratorium on the granting of marriage licenses to out-of-state couples. Or they can reassert the powers that ostensibly balance the branches. The legislature can impeach and replace the judges with a new batch who will change the ruling (however that works there), or the executive can refuse to administer the new law.

Since none of those moves are likely to occur, and since the state's constitution cannot be amended until 2006, the state that, in 2001, had the lowest divorce rate of any state or (probably) country in the Western world (PDF) will instantly have the most liberal marriage laws on the planet. And this will be the case for at least two years. If, at the end of that period, marriage does revert to a heterosexual institution, it may actually prove to have been for the better — for Massachusetts — that the change was imposed by the courts, because the law of marriage, not the population's idea of it, will have been the only shift, and probably not for long enough to affect the culture.

However, I don't think it unreasonable to predict that, by August of this year, every state in the union will have a gay marriage lawsuit pending. By May of 2005, every state judiciary in America will have had the option of declaring gay marriage legal in their states, because the federal Defense of Marriage Act does no more than give the courts, acting on behalf of their states, an out. In some states, the decision will go one way; in other states, it'll go the other way.

Thus, in the near future, we'll all be seeing maps in the news illustrating which states permit and which states do not permit gay marriage. The justifications for federal lawsuits on those maps' basis will by myriad, but one of the more likely has to do with the federal right of citizens to travel freely within the country. Perhaps even before the people of Massachusetts have had a chance to amend the state's constitution, the Supreme Court of the United States of America will have come under enough pressure to reconcile the varying marriage laws one way or the other that the justices will take the matter out of their hands. Unless there's a Federal Marriage Amendment in place, the SCOTUS will surely repeat the Massachusetts court's performance.

Meanwhile, perhaps beginning as early as this summer, that state's Supreme Court will very likely be asked whether, under its own logic, there is really a "rational basis" to deny the civil right of related couples and multiple-partner relationships to "the benefits of marriage," particularly in light of the way in which it defined the very purpose of civil marriage today (emphasis added):

This is not a matter of social policy but of constitutional interpretation. As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community, especially its children. The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage.

Since the court didn't deign even to consider questions of stability with respect to homosexual couplings, it would be inconsistent for it to do so when consanguinity and number come into question. Indeed, as I suggested back in November, every consanguinity law in Massachusetts, as far as I can tell, refers to opposite-sex marriage, and it's hardly a stretch to expand the denial of "rational basis" to same-sex relatives. Consider this intriguing remark in today's release (emphasis added):

The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.

In short: the next few years may see the fighting of the decisive battles in the culture war, because this issue goes well beyond gay marriage, even well beyond marriage. I oppose same-sex marriage of itself, but I am furious about the larger, underlying aspects of its imposition. I am sick of elite judges declaring the law and the mainstream media pushing the desires of the insulated community that populates it. Perhaps it is the growing discontent with the judiciary and the budding of alternative media that have pushed this issue into the culture war arena so firmly.

Whatever the cause and the sides, the domestic battles over the next five to ten years will not really be about same-sex marriage. The turmoil and unrest could drag in every issue on which our nation is divided. In some ways this could be a good thing; perhaps Roe v. Wade will come back onto the table — especially if the role of the judiciary comes under contention.

Considering the magnitude of the situation, the breadth and extent of the debates to come suggests that we conservatives, we of the Culture of Life, ought to begin to think more broadly. And do so quickly. For one thing, this means cementing our coalitions where we're united and softening our disagreements where we're not. For another thing, it means staking out ground and setting other offensives and Plan Bs into motion. For example, efforts ought to be redoubled to tighten divorce laws and institute adultery laws; people are about to begin really thinking about what their marriages mean, so we may be able to overcome the apathy that has corroded the institution for decades. Such initiatives would also serve to diminish the probable damage of gay marriage, even were it to become the law of the land.

In the interest of fostering this stronger alliance, I thought I'd close with an apology. I used to scoff at California and think it the source of corruption in our society. And the state has taken that role to a great degree. However, California's has been a creeping influence through cultural media. What I realized today is that New England and the Northeast of the United States constitute a much more significant threat. New Hampshire Episcopalians elected a bishop who tore a hole in that Church's foundation; Vermont Democrats contributed the man who set the extremist tone for the party's primaries; Massachusetts has introduced gay marriage into the law; New York introduced Hillary Clinton as an official agent of the federal government; New Jersey is preparing the way for genetic research and cloning.

I shudder to think what my state's contribution to this assault on the rest of the nation will be, and as a New Englander, I'm sorry that ours has been the region to initiate the conflagration in earnest. But I pray that through my efforts I can mitigate its effect when it comes.

Posted by Justin Katz at February 4, 2004 10:53 PM
Marriage & Family

I'm confused by this line:

Indeed, as I suggested back in November, every consanguinity law in Massachusetts, as far as I can tell, refers to opposite-sex marriage, and it's hardly a stretch to expand the denial of "rational basis" to same-sex relatives.

Is your argument that while there is a rational basis for prohibiting marriage of opposite-sex relatives the same rationale does not apply to same-sex relatives, so that same-sex (but not opposite-sex) consanguinous marriage will be constitutionally required?

Posted by: Gabriel Rosenberg at February 5, 2004 3:54 PM

Hello Ms. Rosenberg,

You've more or less got it right, although I'd insist on a distinction between what I believe is a "rational basis" and what future courts may or may not believe to be. As Goodridge itself noted:

Sections 1 and 2 of G.L. c. 207 prohibit marriages between a man and certain female relatives and a woman and certain male relatives, but are silent as to the consanguinity of male-male or female-female marriage applicants.

Of course, the court later advised that consanguinity laws be approached as gender neutral, but within the same ruling that "construed away" hundreds of years of Massachusetts legal precedent about the definition of marriage, such advisement can hardly be taken at face value.

Posted by: Justin Katz at February 5, 2004 4:17 PM

Dr. Rosenberg, Mr. Rosenberg, or just Gabriel is fine.

So the statement above is about what you believe as opposed to what you think future courts might believe? Or vice-versa?

The Goodridge decision did note those provisions were gendered as part of a determination that the Legislative intent was not to allow same-sex marriage. It ruled, however, that despite that intention the Mass Declaration of Rights did not allow this exclusion. The question then becomes should those consanguinity provisions be construed gender neutrally? The first step would be to determine legislative intent. Does the legislature intend to permit say uncle-nephew marriages given that same-sex marriages are legal? I'm guessing a court would determine the answer is no. Of course, the legislature could make this clear by passing legislation to that effect. I believe this is why the court delayed its ruling 180 days, so that the legislature may review those marriage laws which are gendered and decide whether they should apply gender neutrally.

Of course even if the court determined that the legislature intended to permit marriages between same-sex relatives, this may not be constitutional if the same relation was prohibited for opposite-sex relations. At the very least the state would need a rational basis for making this genedered distinction. It's possible the state would need a compelling reason as the court did not reach that determination in Goodridge.

Posted by: Gabriel Rosenberg at February 5, 2004 7:43 PM

Sorry about that, Dr. Rosenberg. I have to plea exhaustion and distraction. I was going to use Prof., but wasn't positive it would be accurate.

I haven't reread the whole Goodridge ruling for this discussion, but my recollection is that the court didn't find the opposite-sex definition itself unconstitutional. Rather, it "construed" marriage to be the union of two people and, on that basis, declared discrimination unconstitutional. It's a subtle, but very important, distinction.

Another very significant point is that the judiciary essentially did away with legislative intent, for its purposes here, so were it to do so in the case of consanguinity, it would be an arbitrary application. At the very least, as you admit, it is something about which we can only guess.

Frankly, I think you're wrong about the 180 day delay. The court's ruling, itself, declared that consanguinity ought to be considered gender neutral, making that just another point for which they were generous enough to give the legislature time to acquiesce. Perhaps it's cynical, but my sense is that the court was hoping the delay would either allow the legislature to rubber stamp the new law that it had created, or to phase in the backlash.

Of course, I wouldn't be surprised if same-sex incest led to opposite-sex incest on the basis of equal treatment. However, applying this subjective "rational basis" guideline, one could very easily make the argument that denying potentially procreative incest justified this particular discrimination, while there would be no rational basis to deny same-sex incest.

Posted by: Justin Katz at February 5, 2004 9:17 PM

I disagree with your characterization of the Goodridge decision. The construction of marriage as the union of two people was done as the remedy, not the basis for the decision...

In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. [internal citations omitted]

The basis for the decision was that to bar "an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex" would violate the Mass Constitution guarantees of due process and equal protection.

The court did not do away with legislative intent. On the contrary they were asked by the plaintiffs to construe the marriage laws as gender neutral since they didn't specifically exclude same-sex couples. The court rejected this argument concluding that it was not the intent of the legislature to allow such marriages. It was only because of the constitutional violation that they were forced to allow the marriages anyway.

Of course we can only guess how a court will rule on future cases. I suspect that the court will find a rational basis for banning consanguineal and affinal marriages that has nothing to do with genetic offspring. For one thing, the affinal relations banned in Mass (but not in most other states) have no common bloodline so genetic concerns cannot be the sole basis. Also unlike a few other states (like AZ, IL, and WI) Mass does not permit nonprocreative first cousins to marry. In the next few days I am going to post at my blog why I think there is a rational basis for banning marriages between kin (whereas I don't think there is such a basis for banning same-sex marriages). Although, as you have pointed out what I believe and what the court might rule are not necessarily the same.

Posted by: Gabriel Rosenberg at February 6, 2004 1:27 AM

Dr. Rosenberg,

I've replied on the count of the court's reasoning here.

Regarding the consanguinity count, I want to stress that my basic point is that the court's redefinition of marriage as simply "the voluntary union of two persons as spouses, to the exclusion of all others" changes every assumption ever made in the law. Moreover, if the court's ability to "refine" pre-existing law reaches the extent of redefinition, then all of the public's arguments about what constitutes "rational basis" are of very little use unless they result in constitutional amendments.

If the aim of marriage is seen as solely "to promote stable, exclusive relationships," and if, as a legal matter, the suggestion that same-sex relationships are less stable and less likely to be exclusive can be dismissed out of hand, then I see very little reason, beyond prejudice, to exclude those who are otherwise related.

If anything, Massachusetts's ban on affinal relations (taking your word that such a ban exists) exacerbates the problem. In the context purely of "stability," the possibility of an affinal marriage represents a threat to the relationship through which it formed. A man's desire to marry his wife's daughter harms his current marriage. While this would hold for parent-child consanguinity, a desire to marry a brother or sister or unmarried aunt or uncle threatens no other relationships; for that matter, the same is true of parent-child relationships in which the other parent is deceased or has been divorced. The argument that such relationships, as pertains to mutual care, would be less stable would be difficult to make — particularly in a legal environment that has taken diversity of family types to be a valid rhetorical principle.

At any rate, please let me know when your entry on this aspect of the debate is up.

Posted by: Justin Katz at February 6, 2004 11:43 AM

I'll certainly let you know when it is up. As a preview, though, I basically agree with the premise you stated:

In the context purely of "stability," the possibility of an affinal marriage represents a threat to the relationship through which it formed.

I think this applies to consanguineal marriages as well, though. For example, brother-sister marriages--or brother-brother for that matter--represent a threat to the sibling relationship. Marriage establishes a kinship relation (secondary only to the parent-child relation). Establishing this relation--or even keeping open the possibility of establishing it--is bound to have some impact on preexisting kinship relations. Precisely which kinship relations we wish to prohibit is a matter properly left to the legislatures.

In fact within which relations marriage is prohibited varies tremendously from culture to culture and in the US it even varies from state to state. Thus I thought it was interesting that you wrote:

Thus, in the near future, we'll all be seeing maps in the news illustrating which states permit and which states do not permit gay marriage. The justifications for federal lawsuits on those maps' basis will by myriad, but one of the more likely has to do with the federal right of citizens to travel freely within the country.

Such maps already exist with regards to conanguinity and affinity provisions. Admittedly it does casuse some problems and there's a lot to be said for a uniform code of marriage. That it would be unworkable, or that same-sex marriage in one state would force it in another state, though is clearly not true when we look at this example. That's not to say, that I don't believe a federal case could be made for same-sex marriage. I just think it's going to require, at least to some extent, arguments based on equal protection.

Posted by: Gabriel Rosenberg at February 6, 2004 1:13 PM