Marriage As Solely Between a Man and a Woman
Tuesday, November 25, 2003
by Frank O'Connell
I just finished reading your piece, Divisions over Unions, and I am very disturbed by what your essay implies. If the decision last week in Massachusetts means a State might no longer be able to strictly define Marriage as solely between a man and a woman, what is to now stop a court from ordering that unions between a man and more than one woman (or, for that matter, a woman and more than one man) be made legal under State law, even where Marriage solely between man and woman is on the books as a statute?
Mr. Berg-Andersson responds:
Methinks Mr. O'Connell is well mixing his apples and his oranges. Here's why- and let me explain by use of an analogy (with the admitted caveat- accepted by me- of the "rule" of Logic which states that 'Analogy is Illustration, not Proof'):
Most law-abiding people throughout the United States of America over the age of 21 (except under rather extraordinary circumstances) are permitted to consume (where, in areas which have declared themselves "Dry" under local option, they are not also permitted to purchase) at least some alcoholic beverages: at the same time, no person, no matter how law-abiding or how old they might be, is permitted to purchase, possess or consume heroin. And there is nothing at all wrong with this- for no one can claim that the laws (State, as well as Federal) prohibiting a person from using heroin are at all discriminatory: they apply equally to all.
Putting aside the limits of this analogy (for, after all, consumption of alcoholic beverages is a privilege, not a right: the right to marry, so long as it be a legal union, is distinctly otherwise), the laws against Polygamy in all States of the Union are likewise: they, too, apply equally to all. It is true that no homosexual couple can legally enter into a marriage with more than one partner; however, it is also true that no heterosexual couple can legally enter into such a polygamous marriage: thus, there is no discrimination- as regards polygamous marriage- on grounds of sexual orientation. Polygamy is illegal for all and, so long as it remains illegal for everyone, there is no discrimination in violation of the Equal Protection Clause of the U.S. Constitution (in addition, no issue is then raised under the Full Faith and Credit clause of that document, since- because all 50 States outlaw Polygamy- there can be no polygamous marriage recognized by any given State which would then force another State which outlaws Polygamy to recognize such a polygamous union).
The plaintiffs in the Massachusetts case- monogamous homosexual couples who wished to be able to legally marry- were not asking the court to order the legitimization of marriages which heterosexual couples could not themselves legally solemnize (in other words, the plaintiffs were not seeking a privilege others do not have [they were not, to respond directly to Mr. O'Connell, asking for the legalization of polygamous homosexual unions]): instead, they were asking the court to order the legitimization of the same type of marriage into which any heterosexual couple can enter (that is, they were seeking the right to do what others may already do). The constitutional issue before the court, therefore, was: given the Equal Protection clause (the Massachusetts State Constitution having language similar to that found in the 14th Amendment Federal Constitution as to the Commonwealth's obligation to insure that the laws protect everyone under its jurisdiction equally), is there a compelling State interest- on a rational basis- to deny homosexual couples the same right to marry that heterosexual couples already have? The court agreed with the plaintiffs that there was not, a decision largely based on such Equal Protection grounds- grounds which play into the issue of same-sex marriage much as I outlined in my 19 November piece.
A major point of my piece was that the Massachusetts Supreme Judicial Court did not overstep its bounds and did not, as has been claimed by many critics of its 18 November decision, engage in judicial activism; instead, it did precisely what a court of last resort is charged with doing: reconciling the Constitution (in this case, the Commonwealth's own) with laws passed by a legislature (here Massachusetts' own General Court). Laws which are declared by the judiciary to be unconstitutional are just that: unconstitutional- no matter by how much of a majority the law might have passed in the legislature, no matter how large the majority among the general public in favor of the law might have been- or, for that matter, might continue to be. Constitutions in a Republican Democracy are intended, among other things, to protect against what has come to be called the "Tyranny of the Majority": without such a protective role, written Constitutions- and the Rights and Liberties they contain- become meaningless and one might as well use the paper on which they have been written to line the bottom of one's bird cage, for all they would then be worth!
The people of the Commonwealth of Massachusetts can always avail themselves of the vehicle of amending their State Constitution to exclude same-sex marriage, if they so choose (this would override the recent decision of the Supreme Judicial Court of the Commonwealth). On the national scale, meanwhile, opponents of the decision (fearing that other States in the Union will have to someday recognize a same-sex Marriage perhaps soon to be authorized by Massachusetts law) are already working for an Amendment to the Constitution of the United States that would prohibit any State from authorizing any Marriage that is not solely between a man and a woman (this would keep the 14th Amendment's Equal Protection clause from being applied to so-called "non-traditional" Marriages, as well as removing the issue from the Full Faith and Credit clause). If either of these proposed constitutional amendments happens to get adopted via the amending procedures provided for in the respective documents, then so be it. That's Republican Democracy and that's America!
But Polygamy would have nothing at all to do with it.