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WebMemo #373 on Family and Marriage

November 19, 2003

In Defense of Marriage

By and


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Marriage is a fundamental social institution, deeply rooted in all societies, which has been tested and reaffirmed over thousands of years. 

The Heritage Foundation is committed to defending, promoting and supporting the historical role of the family as the basic unit of every civil society, and marriage as the legal union of one man and one woman.

To the contrary, the Massachusetts Supreme Judicial Court has ruled that marriage is "an evolving paradigm" and that homosexual couples are legally entitled to marriage under the Massachusetts state constitution. The decision recognizes a fundamental right to marry the person of one's choice and changes the definition of marriage to include same-sex unions. 

This troubling decision has significantly ratcheted-up a growing national debate over the nature and purpose of marriage. In this debate, despite the many complexities of the issues involved, conservatives must stand for and defend - as The Heritage Foundation has since its inception - the centrality of the institution of marriage to the welfare of society.

While recognizing that this decision is confined to the state of Massachusetts, and that further legal analysis is required, a few general principles are clear. 

First, the Massachusetts decision is an egregious example of activist judges making sweeping policy decisions with vast societal implications. Policymaking decisions of this kind are broadly political, not narrowly judicial, and should be made through the lawmaking process in a way that reflects settled public opinion, informed by long-established traditions and the principles of social order. 

 

Second, steps must be taken to remedy this assault on marriage by the courts.  While it is not yet clear what constitutes the best strategy, all responsible options should and must be carefully explored. There are strong legal, policy, and political arguments surrounding a variety of proposals. What is beyond dispute is that judicial decisions that threaten marriage cannot stand unchallenged. 

 

Third, the policy objective is to uphold and defend the institution of marriage.    It would be a dangerous folly to weaken this institution by elevating non-marital unions to the same position as marriage, or relegating the institution of marriage to the status of merely one form of household. To the extent that homosexuals or other individuals face obstacles to claims of benefits, legislative bodies may choose to address these matters. Such questions must not be addressed, however, in a way that endangers the centrality and distinctiveness of marriage to the welfare of society.

The Massachusetts Court's Attack on Marriage

What did the Massachusetts Supreme Judicial Court do?

First, the Court has ruled that homosexual couples are legally entitled to marriage under the Massachusetts state constitution. The decision holds that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."  

The Court asserted that the Massachusetts Constitution "affirms the dignity and equality of all individuals" and "forbids the creation of second class citizens." The traditional definition of marriage lacks a rational policy basis, says the Court, and upholds "persistent prejudices" against homosexuals.  And the court rejected the state's argument that the purpose of marriage is procreation. Rather, the history of marriage law demonstrates that "it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of marriage."

Second, the opinion redefines marriage to include same-sex marriage. It reformulates the common-law definition of civil marriage to mean "the voluntary union of two persons as spouses, to the exclusion of all others." Noting that "civil marriage has long been termed a 'civil right,'" the court concluded that "the right to marry means little if it does not include, the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare."

Third, the decision seeks to force the legislature to act according to the Court's dictates. The court stayed the entry of judgment for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion." It leaves intact the legislature's discretion to regulate marriage, but reserves the right to pass final judgment on legislative actions. The decision purports to defer to the legislature, but then gives the legislature the rationale, guidelines and timeline for their lawmaking.

The Massachusetts ruling is similar to Vermont's 1999 Supreme Court ruling that prompted the state legislature to approve gay unions in 2000. In this case, however, the ultimatum to the legislature seems less forceful, but the action the Court calls for goes well beyond providing benefits to imposing a new definition of marriage. 

 

One option is for the Massachusetts legislature to take up existing legislation that would amend their Constitution to legally define marriage as a union between one man and one woman. This has the potential to mirror what happened in Hawaii and Alaska, where court rulings similar to Massachusetts' decision were followed by the adoption of constitutional amendments limiting marriage to one man and one woman. 

 

Quotes From the Decision ( available here)

 

  • Writing for the majority, Chief Justice Margaret H. Marshall says, "Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In turn it imposes weighty legal, financial, and social obligations." The question before the court was "whether, consistent with the Massachusetts Constitution," the Commonwealth could deny those protections, benefits, and obligations to two individuals of the same sex who wish to marry.

  • Writing the joint dissent, Justice Robert J. Cordy says that the marriage statute, as historically interpreted to mean the union of one man and one woman, does not violate the Massachusetts Constitution because "the Legislature could rationally conclude that it furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children." This case is "about whether the State must endorse and support [the choices of same-sex couples] by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them." This issue "is one deeply rooted in social policy" and "that decision must be made by the Legislature, not the court."

  • In a separately filed dissenting opinion, Justice Martha B. Sosman writes that "The issue is not whether the Legislature's rationale behind [the statutory scheme being challenged] is persuasive to [the court]," but whether it is "rational" for the Legislature to "reserve judgment" on whether changing the definition of marriage "can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society."

Matthew Spalding, Ph.D., is director of the Center for American Studies, Joseph Loconte is the William E. Simon Fellow in Religion and a Free Society.

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