OutRight

by Dale Carpenter

MASS. MOVEMENT

Where will the state high court decision lead?

Did the Massachusetts high court really order the state to recognize gay marriages? That’s the way the decision in Goodridge v. Dept. of Public Health was reported in the media, quickly becoming conventional wisdom.

Before a week had passed, however, revisionism set in. According to the revisionist view, the Massachusetts court gave the legislature the choice whether to extend full marriage to gay couples or to give them the legal benefits of marriage under some other name. The revisionist view is advanced by the Massachusetts governor and the state’s attorney general, who oppose gay marriage. Some who support gay marriage but who fear a devastating political backlash also advance this opinion.

Are the revisionists right? Will civil unions suffice, as they did in neighboring Vermont three years ago when that state’s highest court also addressed marriage discrimination?

The revisionist view has some support in the opinion. Andrew Koppelman, one of the leading gay-rights legal scholars in the country, argues the court “did not decree that same-sex couples were entitled to marry.”

He bases this conclusion on three aspects of the decision. First, discussing the actual remedy given to the gay couples, the court said only that they were entitled to “the protections, benefits, and obligations of civil marriage.” These things may be provided without attaching the word “marriage” to them.

Second, the court did not order the state to issue actual marriage licenses to gay couples.

Third, the court gave the legislature 180 days to remedy the problem. This makes no sense, Koppelman maintains, unless the legislature had some option other than simply to give gay couples marriage—a remedy the court easily could have imposed.

To these three arguments a fourth might be added: While a court is properly concerned about discrimination in substantive rights, it has no business telling legislatures what they must call those rights. As long as the legislature has given gay couples all the privileges of marriage, this argument holds, it may call that package “marriage” or “civil unions” or “fried green tomatoes.”

There’s an additional concern. To read the decision as requiring marriage may scare the state into amending its constitution. What’s far worse, it may scare the country into adopting a federal constitutional amendment that would not only ban gay marriages but also civil unions and other forms of recognition. Koppelman, who supports gay marriage, urges activists to wait “a decade or two” before pressing for it.

I think the revisionists read both the opinion and the political climate the wrong way.

As for the opinion, it’s true the court noted the exclusion of gay couples from marital “protections, benefits, and obligations.” But it did so to emphasize one reason why marriage is so important. The Massachusetts court also recognized that “tangible as well as intangible benefits flow from marriage.” The tangible benefits (filing joint tax returns and the like) can be captured by a marriage equivalent, but the intangible benefits (historically grounded social recognition) cannot fully be. So what it’s called does matter.

Notably, in fashioning its remedy, the court neither mentioned the Vermont example nor explicitly gave the state legislature an alternative to marriage, as the Vermont court did. Instead, the court followed the model of a Canadian court last summer by stripping the opposite-sex requirement from the definition of marriage itself. “We construe marriage to mean the voluntary union of two persons as spouses,” the Massachusetts court declared.

While it’s true the court did not order the state to issue marriage licenses to gay couples, that’s not what the couples asked for. They asked only for the court to declare unconstitutional marriage discrimination against same-sex couples, which the court did by changing the definition of marriage to conform to state constitutional requirements.

What, then, is the Massachusetts legislature supposed to do in the next six months? Marriage discrimination against same-sex couples is rife in state law. The legislature, not a court, is best suited to decide how to rewrite those discriminatory provisions. That’s what the legislature should do with its time if it wants to comply with the decision, not struggle to find ways to give gay couples a separate but equal status.

As for the politics, fears of a catastrophic backlash are probably exaggerated. Polls in Massachusetts show residents favor the decision by a 12-point margin and oppose a state constitutional amendment by a 17-point margin. As I have previously written, polls on this issue probably tend to exaggerate support for us. But we’re already in a better position than we were in the immediate aftermath of the Vermont opinion, when a majority of that state’s citizens opposed a more moderate result. Since a state constitutional amendment in Massachusetts requires eventual voter approval and since such a referendum could not be held until November 2006, there’s time between now and then to calm fears.

As for a federal constitutional amendment, the prospects are even dimmer. Amending the U.S. Constitution is difficult, especially when one of the major parties opposes that action, as the Democrats do. Even conservatives are divided on the issue, some because they have become more moderate on homosexuality and some because they believe states ought to make their own decisions about marriage.

If the Massachusetts decision sticks and we get our first experiment in real gay marriage, 2003 will be remembered as the year we turned a corner toward full equality.

Writing from the conservative end of the spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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