I'm sure this news will fan the flames of the blogosphere and talk radio for the next few days:

Massachusetts' highest court ruled 4-3 Tuesday that the state's ban on same- sex marriage is unconstitutional and gave lawmakers 180 days to come up with a solution that would allow gay couples to wed. ... "Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family — these are among the most basic of every individual's liberty and due process rights," the majority opinion said. "And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations."

"Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions," the opinion said

Bear in mind that the Massachussets Supreme Court interprets the state constitution, not the federal Constitution, and without knowing too much about the Mass. constitution, it's hard to remark whether they are spot-on or in left field here. As a rule, I think mandates like these from the bench are a bad idea. Unless there is a literal conflict with the constitution, social issues like these need to be processed through elected representatives to ensure legitimacy. The civil-rights struggle was an exception because there were laws and practices in the states that directly conflicted with the literal meaning of the 13th and 14th amendments. Now the legislature in Massachussets is threatening to amend its constitution to specifically forbid gay marriage to counter this judicial activism.

Nevertheless (and this is where I part company with many of my friends), I think lifting the ban on gay marriage is inevitable and actually a good idea. The argument against this is mostly based on religious principles, or on the protection of procreation. Neither argument stands up in a secular legal environment. Civil marriage, at one time, may have borne some relation to religious marriage, but if it ever did it certainly does not now. Civil marriages are now nothing more than privileged contracts, recognized by the state for the disposition of shared property, child support where applicable, and distribution of benefits, both private and public. The notion that a civil marriage confers some sacramental status to a relationship is ludicrous in an age where you can drive up and have an Elvis impersonator marry you -- legally, and binding in all 50 states -- an hour after you roll into Las Vegas. Unlike other contracts, civil marriages can be broken by one party alone without mandatory penalties thanks to no-fault divorces; my wife could give you chapter and verse on that topic from the end of her first marriage. In this country, civil marriage has been so divorced from religious meaning that you can easily get married and divorced once a year, every year, and still have summers to yourself.

The idea that civil marriage protects the procreative child-rearing processes are similarly flawed, and for much the same reasons. Straight people do not wait to be married to procreate, or to practice the mechanism of procreation, to get exceedingly technical. Divorce from a civil marriage is just as easily obtained whether children are present or not. The argument also overlooks the most obvious issue: gay couples are much more unlikely to produce children anyway, for obvious reason, especially male gay couples. And for those who bring children into the relationship, the non-related partner has no legal standing with the children, regardless of how stable and long the relationship may be. Children who may have spent most of their formative years with such a person could be taken away if the related parent dies and the blood family decides (as next of kin) to remove them from the only home they've known.

Up to now, American legal systems have forced gay couples to use a "civil union" contract to mimic marriage without officially recognizing these contract relationships as such. Civil unions, not surprisingly, offer the exact same benefits as civil marriage: disposition of shared property, child support where applicable, and distribution of benefits. Even private benefits, such as health insurance through work, are generally honored by most companies these days. Civil unions do not protect its members with next-of-kin status, however; in a Terri Schiavo-like situation, the partner of the patient is at the mercy of blood relatives, who in some cases may have been openly hostile to both people due to their relationship and orientation. It forces odd linguistic constructions like "significant other" and "life partner", where "spouse" is a lot more convenient. Civil unions offer a second-class status to a contractual relationship that is otherwise no different than civil marriage.

Churches, of course, can put any restriction on marriage that they see fit, because church membership is voluntary (legally speaking, of course). People do not need church approval for civil marriage, and churches often refuse to recognize civil marriages for failing one test or another. Legalizing gay marriages will do nothing to change church prerogative in setting their own standards for marriage.

On the other hand, legalizing gay marriages will tend to eliminate a radicalizing issue in the gay community and bind gay couples closer to mainstream society. Absent this issue, gay couples will feel more engaged in their communities and in the political processes that affect them, and will cease to be single-issue voters. And most of all, it will eliminate another type of "unspeakable" class in what should be a classless society.

Like the elimination of sodomy laws, I believe that we are seeing the right result from the wrong process. As Clarence Thomas wrote in his dissent relative to the former, few doubted the laws were silly, but it should have been left to the legislature to remediate that. Unless we want to start making both marriage and divorce in this country much more difficult to enter into, then it's time we dropped the pretense of the civil government giving a sacramental blessing to marriage, quit trying to build two "separate but equal" systems of contract unions, and legalize gay civil marriages through legislation.

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Tracked on February 21, 2005 9:35 AM