Case Against Marriage Equality Implodes

Published in: November-December 2003 issue.


THE SUPREME COURT’S RULING in Lawrence v. Texas overturned the Court’s infamous Bowers v. Hardwick decision of 1986, which had ruled that gay people’s private sexual intimacy did not warrant constitutional protection in the bedroom because there is “no connection between family, marriage or procreation on the one hand,” and gay people on the other.

Sixteen days earlier, Canada had become the third country in the world to allow lesbian and gay couples the freedom to marry. In a unanimous decision, the high court of Ontario ruled that the exclusion of same-sex couples from the important legal institution of civil marriage infringes upon human dignity, harms real families, including children, and violates constitutional guarantees of equality and fairness. Canada’s government has embraced that decision, and lesbian and gay couples have been getting married.

During the last seventeen years, lesbian and gay couples across North America have shown that, contrary to the repudiated Bowers v. Hardwick claim, our lives and aspirations have everything to do with commitment, dedication to family, raising children, sexual choice, and intimacy—and, yes, marriage. So why, then, is there no marriage equality for same-sex couples in America?

In 1996, following a historic trial at which the state had a chance to make any argument and offer any evidence it chose, Hawaii Judge Kevin Chang found that “In Hawaii, and elsewhere, people marry for a variety of reasons, including: (1) having or raising children; (2) stability and commitment; (3) emotional closeness; (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) legal and economic protections, benefits and obligations.” Same-sex couples, the judge declared, share the same mix of reasons as different-sex couples for wanting to get married. The Hawaii court held—as courts have since in Vermont and, now, Canada—that the government has no good reason for excluding same-sex couples from the commitment, responsibilities, and protections of civil marriage.

Right-wing groups have opposed ending marriage discrimination, just as they have fought any measure of protection for gay people’s families. Politicians who pander to them, such as Senate Majority Leader Bill Frist, a Tennessee Republican, have been willing to attack gay people as convenient scapegoats—even threatening recently to support amendments to the Constitution, our nation’s greatest treasure, which protects all of us in our religious freedom and equal claim to liberty and basic rights.

Yet none of these groups or politicians can give a good reason for excluding gay people from marriage. Their claims that the sky will fall are the same cries of doom they made in previous national battles over marriage—struggles over ending race restrictions on who could marry whom; abolishing women’s legal subordination in marriage by which women actually lost rights and their own legal identity upon marrying; removing laws that denied married and unmarried people the right to make their own decisions about contraception and parenting; and creating divorce laws that freed people from failed or abusive marriages. Much as the Supreme Court said of its now-repudiated anti-gay decision in Bowers v. Hardwick, they were wrong then, and they are wrong now.

Supreme Court Justice Antonin Scalia wrote in his dissenting opinion that the exclusion of same-sex couples from marriage rests on “pretty shaky grounds.” As he noted, “the encouragement of procreation” cannot justify the exclusion, “since the sterile and the elderly are allowed to marry”—so why, then, not same-sex couples? Though I rarely agree with Scalia, when he’s right, he’s right.

FIFTY-FIVE YEARS AGO, the California Supreme Court in its 1948 decision in Perez v. Lippold struck down the state’s law banning interracial marriage. Each person seeking a license to marry the “wrong” kind of person, said the Court, “finds himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.” The decision in Perez, which marked the beginning of the end of race discrimination in marriage, came several years before Brown v. Board of Education, before legislators in most states (including California) were willing to stand against discrimination, and before the polls showed the public’s acceptance of equality in marriage or other civil rights. But some state had to show leadership, and the Court was properly asked to provide it through a direct and timely challenge to existing discrimination.

Today in Massachusetts, couples in love—some parents with kids, some together for decades, all taxpaying citizens of the Commonwealth who have built lives together and dedicated themselves to one another—stand before that state’s Supreme Judicial Court (SJC) asking for an end to their exclusion from civil marriage. These couples claim what the California Supreme Court in Perez denoted “the essence of the right to marry … the freedom to join in marriage with the person of one’s choice.”

The couples have reminded the SJC that the denial of the rights and responsibilities of civil marriage to same-sex couples benefits no one and is a cruel interference with a choice that properly belongs to the couple. And, as the high court in Hawaii held, as a wave of courts in Canada have held within the last year, and as the Perez court held over fifty years ago, the state has no good reason—and certainly no compelling reason—for the interference, exclusion, and inequality we challenge here. Arguing for the plaintiffs, Mary Bonauto of the Massachusetts’s Gay & Lesbian Advocates & Defenders (GLAD) rejected the notion that “civil unions” were the same as marriage itself, telling the justices:


It has always been the role of the courts in our system of government to say when a law draws the wrong line. This is the wrong line. Only “marriage” conveys the love and commitment that others automatically understand and respect. Only “marriage” provides a legal safety net protecting the couple’s emotional bonds and their economic security. Equal marriage rights would strengthen these families and the communities of which they are an integral part.


Now it is up to the justices of the Supreme Judicial Court to fulfill what Federalist Paper No. 78 described as their “duty as faithful guardians of the Constitution.”

As they did in Hawaii and in Vermont, opponents of marriage equality are trying to pressure the SJC into fearing that the people of Massachusetts are not ready to keep America’s promise of equality. Their main tactic is to argue that such a step is historically unprecedented, that it would destroy the institution of marriage itself, in short, that “the sky will fall” if same-sex couples are allowed to take on the commitment of marriage. Let me remind them of four important facts:

First, we have seen in our lifetimes four major changes in the institution of civil marriage that were at least as “radical” as anything proposed here today: 1) uncontested divorce; 2) an end to race restrictions on marital choice; 3) establishment of women’s equality and an end to married women’s loss of legal identity, property, and rights; and 4) a decoupling of procreation decisions from marriage.

Second, in each of these civil rights struggles, then as now, opponents of equality prophesied that ending discriminatory restrictions on marriage would lead to disaster. Today they sound foolish at best. For example, one Georgia court upheld restrictions on different-race marriage, saying it was “unnatural” and would lead to children who are “generally sickly, and effeminate … and inferior in physical development and strength.” A Tennessee judge wrote that if interracial marriage were allowed, “We might have the father living with his daughter, the son with the mother, the brother with his sister. … The Turk or the Mohammedan, with his numerous wives, may establish his harem at the doors. … Yet none of these are more revolting, more to be avoided, or more unnatural than the case before us.”

Opponents of equality also made dire claims, for example, about contraception. One commentator declared that “Japanese birth control devices in the homes of America can be more destructive than Japanese bombers over Pearl Harbor,” while bishops issued a statement saying that if the Connecticut legislature ended restrictions on contraception, “within 25 years the state will be a mass of smoldering ruins.”

In 1844 a New York legislator pleaded with his fellows not to allow married women to own property, because “If any single thing should remain untouched by the hand of the reformer, it is the sacred institution of marriage [which]is about to be destroyed in one thoughtless blow that might produce change in all phases of domestic life.” A Maryland judge agreed with him, saying that if women retained their legal rights within marriage, “What incentive would there be for such a wife ever to reconcile differences with her husband, to act in submission to his wishes, and perform the many onerous duties pertaining to her sphere? Would not every wife … abandon her husband and her home?” (For more examples, see E. J. Graff’s What is Marriage For?)

Third, although Massachusetts would be the first in the U.S. to end sex discrimination in civil marriage, it would not be the first in the world—and would not be alone in this country for long. Two countries, Holland and Belgium, already allow gay people to marry and are doing just fine. Canada is in the process of hammering out legislation that will comply with the order of Ontario’s high court that same-sex marriages be permitted. There has been steady progress toward marriage equality and recognition of gay people’s families around the world, from Europe and South Africa to Israel and South America.

Fourth, the public is ready for leadership. The polls show support for equality growing, particularly among youth. While there was a lot of talk of a “backlash” against gay marriage in the wake of Lawrence v. Texas, the long term trend has been and is likely to continue to be favorable. In general, a plurality of voters either support or find acceptable the idea of gay marriage. This is true whether the scenario is described as “granting civil marriage licenses to gay and lesbian couples with the same rights, responsibilities, and protections given to other married couples, as long as religious institutions do not have to recognize or perform these marriages” (fifty percent support or accept) or “gays and lesbians would have the same right to marry as heterosexual couples with the same legal rights, responsibilities, and protections” (49 percent support or accept). Clearly, there are differences among states, and it’s important to note that these national polls include states like Alabama and Utah, which mask the much higher levels of support in states like Massachusetts and New York, which are in a position to play a leadership role in marriage equality.

If there is a backlash against marriage equality, much of it has come from two entrenched agencies of resistance to GLBT equality.

The Vatican, predictably enough, issued a statement declaring that marriage could only be between a man and a woman. The Pope was clearly overstepping the bounds of his legitimate influence in the American context, where church and state occupy separate realms of authority. The Church has every right to decide what religious marriage means for Catholicism, but not to dictate which Americans can get a civil marriage license from the government. The Pope says Catholics are forbidden to remarry after divorce, but the government should not and does not deny divorced Americans, whether Catholic or otherwise, the right to obtain a civil marriage license.

The Bush Administration has nodded its support for a constitutional amendment that would define marriage as a bond between a man and a woman. At a Q&A last July, Mr. Bush suggested that this definition be “codified” into American law (which can only mean a constitutional amendment). Of course, he offered no reason why marriage should be defined in this way, nothing beyond the cop-out claim that this is how marriage has “traditionally” been defined. Clearly the White House was pandering to anti-gay groups that it considers part of its electoral base.

Many politicians are also responding. Pushed by our demand for equality and by our explicit focus on marriage, candidates—including virtually all the Democratic presidential hopefuls—have begun to tout their support for “all but marriage,” and even for marriage equality itself in some cases. In Vermont, the only state that currently allows civil unions, the state’s Republican governor has said that he doesn’t want to revisit the issue of civil unions, because people have now accepted them. In fact, over 5,000 couples have entered civil union in Vermont, and the sky hasn’t fallen.


Evan Wolfson is executive director of Freedom to Marry, a gay and non-gay partnership working to win marriage equality nationwide.


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