EDITOR’S NOTE: This editorial appears in the December 8, 2003, issue of National Review.
What has the high court of Massachusetts wrought? Don’t look to the Democratic presidential candidates for guidance. On the day that a bare majority of the court declared that marriage licenses must be given to same-sex couples, Howard Dean issued a statement so mealy-mouthed and evasive that it did not even include the word “marriage.” He suggested that the court had acted in the spirit of the Vermont supreme court, which in 1999 forced the state legislature to create civil unions for homosexual couples. “One way or another,” said the supposedly straight-shooting governor, “the state should afford same-sex couples equal treatment under law in areas such as health insurance, hospital visitation and inheritance rights.” Dean went on to warn that some people would “try to use the decision today to divide Americans.”
John Kerry’s statement also referred to hospital visitation rights and the like. Kerry continued, “While I continue to oppose gay marriage, I believe that today’s decision calls on the Massachusetts state legislature to take action to ensure equal protection for gay couples. These protections are long overdue.” Dick Gephardt said, “I do not support gay marriage, but I hope the Massachusetts State Legislature will act in a manner that is consistent with today’s Massachusetts Supreme Judicial Court ruling.” Joe Lieberman and John Edwards took no explicit position on the ruling, saying only that they oppose gay marriage but also oppose federal efforts to undo the ruling.
Opponents and supporters of gay marriage alike should be disgusted by these dodges. The court’s decision plainly imposes a regime of gay marriage on Massachusetts. The court has said that the state constitution requires this change. The court graciously grants the state legislature some time–180 days–to alter state marriage law so that same-sex couples can get married. If the legislature does not make this alteration, however, the court will still order county clerks to issue marriage licenses to same-sex couples. Dean implies that the court merely wants gay couples to have various benefits, and Kerry says that it merely wants them to have “protections.” Actually, it wants them to have the right to marry. If the legislature is to “act in a manner that is consistent with” the ruling, as Gephardt urges, it will bless the very thing that he says he does not “support.” The Democratic hopefuls do not want the public to see them as supporters of gay marriage, but they do not want liberals to see them as opponents of the Massachusetts decision either. But no honest middle ground exists. If you oppose gay marriage, then you cannot support, or even be neutral toward, the Massachusetts decision. That decision holds that the equal dignity of citizens requires gay marriage. If you do not oppose the decision, you do not really oppose gay marriage.
Actually, the difficulty for those who would prefer to sit on the fence is even worse than that. If you agree with the Massachusetts ruling–if you think that it was rightly reasoned as well as rightly decided–you cannot even be a moderate supporter of gay marriage who believes that intelligent people of good will may disagree. Opponents of gay marriage are irrational bigots, equivalent to the people who opposed interracial marriage in bygone days. The court declares that there is no rational basis for defining marriage in a way that renders same-sex couples ineligible. Thus the traditional marriage law cannot survive even if the court subjects it to the lowest level of scrutiny it can apply. The court repeatedly likens its decision to the Supreme Court’s invalidation of bans on interracial marriage. It sees no difference between the cases.
The erosion of marriage in our law and culture helped carry the Massachusetts court to its conclusion. The court recognizes that we have severed many of the links among marriage, sex, and the raising of children. But it does not follow from that indisputable premise that our law and culture do not link these things at all, or that they should not link them. A court could just as easily conclude that to the extent that the courts themselves have broken these links, they should go back and re-create them. It could just as easily conclude that the people of Massachusetts have conflicting and sometimes inconsistent views about the nature of marriage, and that the law may reflect that muddle without needing judicial correction.
Instead the Massachusetts court chose to take sides in a culture war–complete with implicit insults toward one side. There is reason to think that other states will catch later trains to the same destination. A majority of the Supreme Court has twice invalidated laws that reflect a traditional understanding of sexual morality, judging them expressions of bigotry. Will it in a few years work a nationalization of what the Massachusetts court has done? Will 10, 20, 30 state judiciaries follow that court’s example? If the people of half the states chose to redefine marriage, the people of the other half would have no legitimate complaint (although they would have the right to argue for their side). We are all for federalism. But federalism is not the same thing as government by 50 state judiciaries.
In his initial response to the Massachusetts decision, President Bush said that the court had “violated” the principle that marriage is the union of a man and a woman. That comment alone contained more honesty than anything his Democratic rivals have said. It remains for him to acknowledge that the problem of judicial overreach is national in its scope, and can be met only by a constitutional amendment.