There is No Law in Massachusetts Prohibiting Homosexuals from Marrying
Thursday, December 4, 2003
by Dennis Johnson
Doesn't Mr. Berg-Andersson make a distinction without a difference in his comments on polygamy, in response to Mr. O'Connell?
After all, there is no law in Massachusetts prohibiting homosexuals from marrying - many do. The law equally prohibited anyone and everyone from marrying a person of the same sex.
That repeats the olde argument that "the law prohibits the rich as well as the poor from sleeping under the bridge," and is therefore neutral. It was argued more recently in defense of laws against interracial marriage, which, of course, applied equally to white and black persons.
Where even an expressly neutral law has a disparate effect on one group of persons, or makes a distinction between persons with regard to a fundamental right (marriage) without a compelling governmental interest, the law may be discriminatory. On that reasoning, the Court struck down laws against interracial marriage in 1967.
Does the argument that heterosexuals could legally marry each other while homosexuals could not, demonstrate discrimination? Mr. Berg-Andersson seems to say "Yes." The Massachusetts court agreed and struck down laws against same sex marriage this year.
Is a law that permits monogamists to marry each other and forbids polygamists from doing so, discriminatory? "Well, no," he says. Why? Because the laws against polygamy apply to everyone; and are therefore neutral - for now.
Mr. Berg-Andersson responds:
Well, anyone can make the legal argument that statutory prohibitions against polygamy while allowing monogamists to marry are as discriminatory as statutory prohibitions against homosexuals marrying each other where heterosexuals are allowed to marry. My point to Mr. O'Connell was that it does not necessarily follow that, because of the Massachusetts decision, polygamy would also now be legal (I was assuming, based on my own reading of Mr. O'Connell's words, that he was opposed to the Massachusetts decision by reason of, among perhaps other grounds, the possibility of a polygamist subsequently using this decision to argue that laws against polygamy was discriminatory).
One of my pet peeves over the years has been argument against public policy- or, for that matter, private behavior- that goes something along the lines of: "We can't permit A- which might actually be accepted because our usual arguments against it now don't seem to be as convincing as they might have once been- because A might lead to B, which could subsequently encourage C, which then may get people to possibly start thinking D- of which clearly very few people approve nowadays- might actually be perfectly ok". Yet this was, in effect, an element of U.S. Supreme Court Justice Antonin Scalia's dissent in the Lawrence case which, earlier this year, declared state sodomy laws to be unconstitutional. However, in a free society such as ours, we don't (or, at least, we shouldn't), for example, lock up everyone who happens to window-shop from in front of a jewelry store on grounds that at least one among the window-shoppers could very well be looking in that jewelry store window whilst solely contemplating the best way to burglarize that jewelry store sometime later!
I stand by my position- as stated in my original 19 November Commentary on the subject- that, because marriage offers state protections to monogamous heterosexuals who wish to marry each other, a court's opinion that not offering the same state protections to monogamous homosexuals who likewise wish to marry each other is a violation of the very definition of 'Equal Protection of the Law' is not, somehow, all that giant a leap in legal reasoning and certainly not the leap implied by such terms as "runaway judicial activism".
As for a polygamist who might, on the basis of the recent Massachusetts decision, argue that not being allowed to legally marry as many members of the opposite (or, for that matter, same) sex in a jurisdiction which permits- and even encourages- monogamous marriage between heterosexuals is as violative of their being equally protected by the laws of that jurisdiction as that jurisdiction banning homosexual monogamous marriage, this argument seems not all that much unlike that of a crack user, perhaps, arguing that laws against his/her being able to freely acquire and enjoy cocaine are discriminatory because he/she can clearly see people walking about on the streets while openly drinking coffee. There would- or so it would seem to me- be a major difference between the position of, say, a cocaine-user (whether gay or straight) in this hypothetical scenario and a homosexual facing a state law, say, stating that, while it was perfectly legal for heterosexuals to buy coffee, gay men or lesbians couldn't!
Then again, a court somewhere- someday- may (or may not) accept the polygamist's argument (and, if such an argument be accepted by that court, I may [or may not] thereafter write a Commentary about it [;-)]). But if one is going to argue against polygamy, one could very well do so without any reference whatsoever to same-sex monogamous marriage: similarly, if one is going to argue against same-sex marriage, I repeat what I said to Mr. O'Connell: polygamy has nothing to do with it! Otherwise, it would be like arguing that someone shouldn't go upstairs to one of the bedrooms in a two-story home because the kitchen floor has just been cleaned (I am, of course, here assuming that one can get up to the second floor without having to first go through the kitchen).