The Green Papers
The Green Papers

The political battle over same-sex marriage in America heats up

by Richard E. Berg-Andersson Staff
Wed 19 Nov 2003

On Tuesday 18 November 2003, the Massachusetts Supreme Judicial Court- the court of last resort in "ye olde Commonwealth"- ruled, by a vote of 4-3, that that State's statutory ban on same-sex marriage violates the Constitution of the Commonwealth and gave the General Court- the Massachusetts Legislature, not a judicial body- 180 days to remedy this by passing appropriate legislation which might possibly allow marriage licenses to actually be issued to same-sex couples. The Supreme Judicial Court of Massachusetts appears- at least from what I can right now glean from various and sundry press reports- to have decided the case before it on the basis of its powers of equitable jurisdiction and how that jurisdiction plays within the provisions of the State's own Constitution. For instance, the court opined that, per the majority's interpretation of the Commonwealth's own Constitution, "[C]entral to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations".

Note that this is not inherently different than what is implied by the language of the 14th Amendment to the Constitution of the United States, where it explicitly states that No State shall... deny to any person within its jurisdiction the equal protection of the laws: yet the court chose not to overturn the State's statutory ban of same-sex marriage on the basis of this Federal provision, perhaps because the court was trying to avoid opening up the proverbial "whole can of worms" by keeping the decision on a more local constitutional basis (since the decision is based solely on State law, as applied by that State's highest court, it is- absent a future amendment to the Federal Constitution prohibiting a State from so legalizing same-sex marriage- beyond the reach of direct encroachment by Federal officials). In my opinion- despite the cries of opponents to the decision that the court here engaged in "rampant judicial activism" and "unconstitutional legislating by the judiciary"- the Massachusetts high court, instead, exercised no small amount of restraint, for one of the tasks of the independent Judiciary in the United States, whether at the State or Federal level, is the reconciliation of legislation (whether contained in a statute or a regulation by an administrative agency) to a written Constitution whenever a "case or controversy" involving same is presented to a court.

Here, the court was presented with a legal claim that rights were being violated to which a majority of the court then happened to respond to the plaintiffs, "Yes-- you're right": to have done so is inherently no more onerous than if the court had answered, instead, "No-- you're wrong"! However, such a national "whole can of worms" as the Massachusetts high court seems to have tried to dodge cannot long be avoided, for yet another Federal constitutional reason- that being the 'Full Faith and Credit' clause of the United States Constitution (Article IV, Section 1), which reads as follows:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It is this very clause that impacts upon the institution of Marriage, as it is through this clause that a lawfully solemnized marriage legal in one State (for the time being, we are here considering only marriage between persons of different genders- that is, the traditional definition that, until today, was the only legal definition throughout the country) would, except under extraordinary circumstances (as defined within that rather arcane branch of jurisprudence known as Conflict of Laws), have to be recognized as valid in any other State of the Union. Thus, the immense fear among at least most of those who oppose same-sex marriage (according to the latest polls, some three-fifths of the Nation [though, in truth, such polls are rather irrelevant: if banning same-sex marriage is, indeed, unconstitutional, the mere fact that the majority would prefer that the unconstitutional, nevertheless, still be done is of no legal efficacy or consequence]) that one State legalizing same-sex marriage would inevitably lead to all States having to do so under the Full Faith and Credit clause cited above. That issue has, of course, now well been joined.

To fully understand the intricacies of the American debate over the legality, let alone desirability, of same-sex marriage, one has to address both the simple as well as the complex within that debate. The simple is actually relatively easy to discern: Anti-Homosexuality in America is, in the early 21st Century, one of the few last safe refuges of the abject bigot. For the most part, one can no longer legally discriminate against other social groups in the way one could freely do so- however openly or covertly- a mere century- or even half century- ago: those groups who were so discriminated against "back when" successfully challenged those discriminatory practices directed at them, to the point where- while one surely cannot legislate the human mind and, hence, one's attitudes towards one's fellow humans (thus, one can still be a racist or an anti-Semite or [name the "anti-" of your choice] in one's own mind, if one so chooses; one can, for instance, still purposely not invite the unwanted into one's home)- such discrimination adversely affecting those discriminated against in the broader "outside world" is now so clearly unlawful. Moreover, at least in most so-called "polite" social circles, denegrating comments- even uttered within the rubric of 'humor'- about other groups once so discriminated against is not all that much tolerated anymore.... thank God!

Homosexuality, however, is a somehow different matter: the country club matron who will openly blush if her husband makes an untoward comment about Jews or African-Americans to company will hardly flinch when that same husband tells a "fag joke" or makes derogatory comments about the (real or imagined) effeminate walking about and serving hors d'oeuvres to the assembled. For homosexuality cuts across ethnic, racial and religious lines- the traditional demarcations between the discrimated against and those doing the discrimination: a Jew is clearly not a Gentile- and vice versa; a Black person is not White- and vice versa... but a Gentile man and a Jewish man who share the apartment upstairs might both be gay (or not gay), a White woman and a Black woman who together bought the house down the street could both be lesbians (or non-lesbian)... in the end, there is no certain way to know (unless the person in question tends to be rather demonstrative about their homosexual lifestyle) who exactly is, to those to whom Homosexuality produces such a visceral reaction of revulsion, "the enemy within"-- even within one's own family... and, to a great deal of Americans, that is just plain too scary: for what if little Johnny- in whom his parents have planted such hopes and dreams (including the dream of grandchildren and even great-grandchildren)- turns out, in the end, to be "queer"? How did he possibly get that way? Did he choose to be homosexual or is it an essential part of his nature going well back into his childhood? Could we, his parents, have done anything to prevent it? Or is an all-too permissive American Society at large to blame (that is, was "little Johnny" overly influenced by outside- if not outright sinister- forces beyond his, or anyone else's, control)? Thus the fear itself- yes, "nameless, unreasoning, unjustified"- can so grow.

The complex is in how this guttural fear then interplays into the whole concept of Marriage, as a legal institution, in modern America:

Marriage, as a legal- as well as a social- status was so much simpler in late medieval England, where so much of what would become early American law and concomitant culture was in development not all that long prior to the first English colonies being planted in North America as the 16th Century faded into history. Marriage in those days was solemnized and legalized solely by the Church (at first, the Roman Catholic Church- that is, until King Henry VIII, one-time "Defender of the Faith" in the eyes of Pope Leo X, later declared himself to be "Protector and Supreme Head of the Church and Clergy", a position confirmed in the Act of Supremacy of 1534 marking the definitive break of the Church of England from Rome): what the Church (whichever "Church" that happened to be at the time!) did not allow- including, most assuredly, same-sex marriage- was not to be solemnized and, hence, was illegal. Moreover, Divorce (purposely made rather difficult to attain- "till Death us do part" and all that: What therefore God hath joined together, let not man put asunder [Mark 10:9]) was solely within the jurisdiction of ecclesiastical, and not the civil, courts. As for any sexual behavior outside of (or, for that matter, despite) such legal church-solemnized Marriage... well... it is better to marry than to burn [1 Corinthians 7:9b]

But America is an originally religious culture which has, over time, come to be more and more secular in outlook (fairly few, indeed, are those who- at least overtly- seek to shove their religion down the throats of other Americans nowadays): this essential contradiction- going all the way back to the Massachusetts Puritans' "shining city on a hill" (and the concomitant problem of just what to do about someone like a Roger Williams openly asserting that the civil power of that "shining city" had no inherent authority over human conscience)- has forced the United States (as it has in so many other areas) into something of a "damned if you do, damned if you don't" position on the global stage. European parliamentarians blanch whenever the President of the United States invokes his own personal beliefs about God while talking about foreign policy, yet I dare say an Osama bin Laden doesn't at all consider America to be particularly godly per his own definition!

Nowhere is this contradiction more clearly seen than in the history behind the Marriage laws here in the United States. There were no ecclesiastical courts, as such, in colonial America (such religious ordinances as were established in law- say, by the New England Puritans- were adopted, altered and repealed through agents of local governance: in New England, Town Meeting and General Court); in addition, and particularly out on the sparsely-populated frontier, there might not even be an ordained clergyman available to solemnize marriages. The American response to this situation was two-fold: the concept of "common-law" marriage (where, in at least some jurisdictions, if a man and woman- neither, of course, married to any other person- simply declared themselves to be husband and wife before witnesses, that was good enough to make a legal Marriage) and the institution of the civil ceremony (where a judge or some other person of political/judicial authority could legally solemnize the union of bride and groom [in many places, a Mayor or Alderman was a judicial as well as a political officer (holding "Aldermanic" or "Recorder's" Courts with the same basic jurisdiction as a Justice of the Peace)- thus Mayors and, perhaps, other elected local politicos could perform the marriage ceremony] ): however, these both created, in a sense, rather uneasy competition with more traditional religious solemnization (a method not at all disparaged, however, by the presence of other legal options) especially as American law became even more secularized (Congress shall make no law respecting an establishment of religion... reads the opening words of the First Amendment to the U.S. Constitution: the States which had so established religion as colonies would all, within a generation or so, follow suit). But even religious solemnization was not quite what it was in "merrie olde" England, where- for a long time- only clergy of the Church of England could perform marriage ceremonies (something even the Puritans of Massachusetts Bay could not stomach)-- neither was the granting of Divorce!

England remained more or less a divorceless society until the mid-19th Century, but only because- until the evils of making divorce too difficult (adultery, desertion- among others) were more clearly seen- there was no such thing as judicially-decreed Divorce on that sceptred isle (the private Bill of Divorcement, granted by act of Parliament, was a rare thing). On the other hand, many American colonies and, later, States (at first, mostly in the North: the South- then as now- was the more overtly traditionally religious section of the country and held on to hard to get divorce longer than the rest of the Nation) provided for both legislative divorce and judicial divorce; as the latter became more and more common, States began to put into their written Constitutions outright prohibitions against the legislature at all granting divorces (thus, judicial divorce ended up as more or less a monopolistic venture). All in all, these American innovations and variants in Marriage law produced a long-term trend toward secularization of what had once been always a religious sacrament: yes, for the most part, Marriage remained- in American social culture- what President George W. Bush, in response to the recent Massachusetts high court decision, himself calls a "sacred institution" but, in American legal theory behind said institution, Marriage more and more developed into a special kind of civil contract between two persons who agree to marry.

Hence the essential legal/constitutional dilemma the Massachusetts decision itself attempts to address: if Marriage is, indeed, just such a civil contract, how then can a State deny to one class of persons (in this case, gay men and lesbians grouped under the rubric of 'homosexuals') their inherent right to enter into contract (inherent because not even opponents of the recent Massachusetts decision would suggest that a gay man or lesbian who has attained the Age of Majority can't legally contract to lease an apartment or finance the purchase of a car!), a right freely exercised- in other spheres, not just Marriage- by other classes of persons? More to the point: what is the essential purpose of Marriage even being that special civil contract, subject to regulation by the secular State, if not that State's affording some level of legal protection to those who have entered into said contract?- thus, if such protection be provided by a State, how can it possibly be "equal protection of the laws" for that State to then deny said protection through the denial of some class of persons (again, homosexuals in this case) the same right to contract for said protection that others so freely enjoy? The answer that the Massachusetts court came up with- albeit by a bare majority- is essentially that none of this really makes any sense.

The complexities that the court's answer cannot at all address, however, involve the moral/religious attitude of most Americans- those who believe that homosexuality is wrong, where not actually sinful- rubbing up against the secularism of what Marriage, as an institution, has become under State definition and regulation. We are here back to the comment I made earlier about the recent polls which evince this conflict: if denying someone a right is legally wrong, even where the majority might think that exercising said right is- in and of itself- the more wrong, the majority does not- and, indeed, cannot be allowed to- win, else Rights in general are meaningless and become unenforceable: anathema within a concept of Republican Democracy.

But this site (and, in particular, this Commentary) is not really the best place to so hash out all the nuances of what will now become an even more fervent political debate over the legalization of same-sex marriage. Rather, to keep to the Mission Statement of 'The Green Papers', it would be far more proper for me to now address the political ramifications of this issue having been joined by this recent court decision as we head into the events we will someday look back on under the heading 'Presidential Election 2004':

The popular wisdom among the political pundits I have seen and heard over the ensuing hours after this decision has been handed down has been that this hurts the Democrats and helps the Republicans. The working hypothesis seems to be that, because the leading Democratic presidential contenders have all taken the position that they oppose same-sex marriage (that is, the concept- now, at least for the time being, newly law in Massachusetts- that couples made up of either gay men or lesbians can be given marriage licenses and, upon due solemnization, attain the same status of Marriage enjoyed by intergender couples who so marry) but support so-called "Civil Union" (which recognizes a gay or lesbian couple- which so formally states its intention to be so recognized- as a household worthy of most, if not all, the protections provided to heterosexual couples who have been legally married), the more conservative wing(s) of the Republican Party now have an emotional issue with which to go after these Democrats, presumably making these Democrats even less attractive to most voters in the GOP "base" regions of the South and Intermountain West (these conservatives will, of course, argue that there is no significant difference between same-sex Marriage and Civil Union- that is, they are really one and the same thing: the problem with this argument, as an intellectual exercise, is that- even in the one State that legally recognizes such Civil Unions [Vermont]- many gays and lesbians are still seeking full Marriage rights [though it is true that such niceties and technicalities will be well lost within the fog of war caused by the salvos of 15- and 30-second sound bites both sides of this issue will fire off throughout the 2004 Campaign to come]):

What has just been stated is true enough... but it also well ignores the potential minefields for Republicans. The GOP is well known for its famous 'Eleventh Commandment': Thou shalt not speak ill of a fellow Republican; more to the political point I am about to make, the Republicans have been a Party divided against itself for some time now (the concept of "Compassionate Conservatism" utilized in the 2000 Presidential Campaign being merely the latest attempt to foster what is, in reality, a faux unity that the National Republican Party has been presenting to the voting public over a number of election cycles, whereas the GOP has not been a truly united front since the Reagan Years [such disunity perhaps going back to the infamous "Read My Lips" anti-tax statement that George Bush pater later felt compelled to recant]): a fellow Texan supporter of House Majority Leader Tom DeLay does not really consider, say, Maine Senator Olympia Snowe to be a "true" Republican any more than the average Republican up here in my neck of the woods- Northern New Jersey (which, after all, produced my State's former Governor, Christie Whitman)- really considers Senator Orrin Hatch of Utah to "really" be one of his or her "political brethren".

What I am saying is that there are ominous cracks in the Republican foundation, cracks that this issue of same-sex marriage can come to widen between moderates and conservatives within that Party (for instance, the ill-advised protest of much of the Texas delegation [which was, obviously, the home State delegation of the Party's nominee, the eventual victor in the Presidential Election!] to openly gay Congressman Jim Kolbe of Arizona speaking before the 2000 Republican Convention [on Free Trade- not Gay Rights issues- no less!!] might have ultimately been timed and conducted in such a way so as not to be disruptive [let alone seen by the vast majority of Americans who only tuned in for the Major TV Networks' prime time coverage of the proceedings], but this papering over of such differences within the GOP as were thereby evidenced does not make such differences as this protest demonstrated at all disappear!!). With an incumbent of that Party running for re-election this time round, yes, these cracks will likely again be similarly dash-patched in 2004-- but such cracks, nevertheless, do exist. Will the Republican Party so latch onto the conservatives' take on same-sex Marriage so as to then risk forsaking making inroads into the more liberal Northeast and the "Democrat-friendly" States within the Midwest whilst using that same issue to help hold onto the GOP "base" States come Tuesday 2 November 2004? Regardless of whether or not President Bush is re-elected next year, what might this "whole can of worms" possibly portend for the GOP in 2008- when, no matter what, the race for the Republican presidential nomination will again likely be wide open??

Those who hope to use the recent decision in Massachusetts against the Democrats for political gain come next November would be well advised to realize that the growing debate over same-sex marriage is, indeed, a two-edged sword!

Modified .