Massachusetts vs. Marriage
From the December 1, 2003 issue: How to save an institution.
Dec 1, 2003, Vol. 9, No. 12 • By MAGGIE GALLAGHER
LAST WEEK, the long-awaited Massachusetts Goodridge gay-marriage decision came down--hard. In a 4-3 ruling, the Massachusetts high court held that the millennia-old, cross-cultural definition of marriage as the union of a man and a woman is utterly irrational. Using the lowest level of scrutiny (the "rational basis" test, which almost always results in deference to the legislature), four well-educated judges could not think up any reason other than "animus" why the people of Massachusetts and their elected representatives might not want same-sex marriage. Only a fool or a madman (or a bigot), they implied, could possibly disagree. The judges gave the state legislature 180 days to respond, presumably by revising marriage laws to include same-sex couples. At this writing, it is 179 days and counting until gay marriage comes to America.
Massachusetts governor Mitt Romney responded by endorsing an amendment to the state constitution, but given the complicated amendment process, the soonest Massachusetts citizens could vote to overturn gay marriage is November 2006.
In Washington, the decision has propelled same-sex marriage to near the top of the nation's domestic political agenda. The president immediately called for an as yet unspecified legal remedy to protect the "sanctity of marriage." There is a growing legal and political consensus in Republican circles that only an amendment to the U.S. Constitution will do. But what kind of amendment? At a Catholic University conference, a White House official pointed out there is not yet a firm consensus about what amendment to promote. Should a federal marriage amendment ban all civil recognition of gay unions, or is it enough to affirm that marriage unites a man and a woman, leaving the question of benefits for same-sex couples to state legislatures?
There are political considerations of course: What language is most likely to win the support of two-thirds of both houses of Congress, then to secure ratification by three-quarters of the state legislatures? What language is most likely to unite (and excite) the party's base? What language will rally a majority of the people?
But behind the political debate there is a significant moral and intellectual debate. This debate is being driven in part by California's experience. Just a year after a successful drive to pass a state constitutional amendment defining marriage as a union of a man and a woman, the California legislature adopted a comprehensive civil unions package that apes marriage statutes, right down to calling the relationship between the partners "spousal." Many who fought hard to defend the age-old definition of marriage in California feel cheated and betrayed.
Are civil unions, then, no different from gay marriage itself? Is granting the legal benefits of marriage to same-sex couples the same thing as giving away marriage? And--the most pressing question of all--what is the point of defending marriage "in name only"? It is a serious question. It deserves an answer.
THE PLACE TO START is with the phrase the "benefits of marriage." When marriage advocates and same-sex marriage advocates use these words, they mean two different things, reflecting two different conceptions of what marriage is and how the law helps sustain it.
When family scholars and marriage advocates speak of the benefits of marriage for men and women, for children, and for society, we are talking about the good things that happen when husbands and wives are joined in permanent, public, sexual, emotional, financial, and parenting unions. Most notably, there is now a consensus across ideological lines, based on 20 years' worth of social science research, that children do better when their mother and father are married and stay married. Here, for example, is how Child Trends, a mainstream child welfare organization, summed up the scholarly consensus recently: "Research clearly demonstrates that family structure matters for children, and the family structure that helps the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes. . . . There is thus value for children in promoting strong, stable marriages between biological parents."
By contrast, when gay-marriage advocates talk about the benefits of marriage, they are usually referring to a set of legal goodies--which they often argue account for the material advantages married families display. This focus on the "legal benefits" of marriage allows them to make one of their strongest arguments: Withholding legal benefits is a form of immoral discrimination.