“In a couple of years they have built/ A home sweet home/ With a couple of kids running in the yard.” — The Beatles, “Ob-la-di, Ob-la-da”
On May 1, 1991, three same-sex couples in Hawaii asked the court to strike down that state’s marriage licensing law on the grounds that it discriminated against them in violation of the state constitution. They prevailed in the courts but it became an empty victory when the people amended the Constitution to define marriage as the union of a man and a woman.
That was then; this is now: on June 14, 2007, the Massachusetts General Court sitting in constitutional convention handily defeated a proposed constitutional amendment that would, had it passed as a ballot measure in the 2008 election, have eviscerated Goodridge. Same-sex marriage is here to stay, at least in the Commonwealth of Massachusetts. Its opponents have been arguing hysterically for years that authorizing gay marriage would mean the end of civilization as we know it. Well, it’s been three years, almost 10,000 gay marriages have been performed in Massachusetts, and the last time I looked up the sky was right where it’s always been. Some gay strategists, most prominently William Eskridge, argued that using the courts was risky because a political backlash often follows unpopular judicial decisions. GLBT people should accept civil union for the time being, Eskridge argued. Let’s not get everyone upset right at the outset. Let’s work slowly and build, if not a consensus, then at least a tolerant majority. Others, notably Evan Wolfson, disagreed, arguing that civil unions were not the same as marriage and should not be our main objective. The experience here in Massachusetts makes it hard to argue for the marriage-by-increment strategy. No one thinks that the legislature that defeated the constitutional amendment would have ever passed a statute authorizing gay marriage on its own. We needed the judicial branch to construe the issue as one of civil rights, and we were fortunate in the make-up of our high court, whose justices—even those in the Goodridge minority—were men and women of courage, intellectual honesty, and good will. There is no question but that proponents benefited from the war in Iraq, which helped to elect a Democrat as governor, and from the sexual abuse scandal involving priests and minors here in Massachusetts, a humiliation that dislodged the Catholic Church from the moral high ground. What happened then was that enough time passed as the political process labored forward, allowing everyone to see same-sex marriage in operation for themselves—and what they saw was the ordinariness of it all. The survival of gay marriage in the Commonwealth was a triumph of the everyday over the apocalyptic. Press coverage emphasized the unremarkable changes in the make-up of the legislature due to retirements, defeats, and resignations, which resulted in nine gay marriage opponents returning to private life. Meanwhile, citizens who had formerly supported the amendment found themselves living next door to married gay couples who looked to all the world like their straight counterparts. The shift in attitude among the electorate was captured perfectly by the elderly woman who wrote to her legislator that “this lovely couple, these two men, moved in next door to me, and they have a couple of children and they’re married, and they help me with my lawn” (Boston Globe, 6/15/2007). Ob-la-di, ob-la-da, life goes on. Jo Ann Citron practices law with the firm Altman & Citron and teaches women’s studies at Wellesley College.
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