December
12 , 2003
Front-Page
News
This
opinion piece ran in the Hartford Courant on Wednesday,
November 19.
Ruling Raises Questions
About States' Role In Marriage
By James Harold, assistant professor of philosophy
The Massachusetts Supreme Judicial Court ruled on Tuesday that
same- and opposite-sex couples must be given equal civil marriage
rights under the state constitution. Soon, unless the state constitution
is amended, Massachusetts will join either Vermont in licensing
civil unions for same-sex couples or the Netherlands in permitting
same-sex couples to marry. Gay rights advocates are justified
in celebrating this week. This is a very important legal victory
in rolling back second-class citizen status for gays and lesbians.
This victory will inevitably fuel the engines of anti-gay forces,
which could mean a serious legal reversal down the road in the
form of a constitutional amendment (either at the state or federal
level). But, more important, larger issues about the nature of
marriage and the state's role in marriage will inevitably
emerge as the issue is discussed in legislatures and households
nationwide. Central to the holding of the Massachusetts Supreme
Court's ruling was the claim that "for all the joy and
solemnity that normally attend a marriage, [the law] governing
entrance to marriage is a licensing law." That is, according
to the court, the state's interest in marriage is limited
to its role in recording contracts and licenses; the state would
no more be justified in refusing to grant a gay couple the right
to marry than it would in refusing a gay person the right to a
fishing license.
States cannot and must not practice discrimination when it comes
to the issuing of licenses or contracts. Every citizen deserves
equal protection from the state concerning legal and economic
rights. When courts rule, as they recently have in Canada, Vermont,
and now Massachusetts, that such discrimination is unconstitutional,
they are undoubtedly in the right.
However, many people do not share this view about the nature of
marriage. When they think of marriage, they do not think first
of licensing and contracts. What people usually consider most
important about marriage are things like love, joy, commitment
or sacred ritual—the very elements that the Massachusetts
Supreme Court has just told us are not the concern of the law.
The issue of gay and lesbian marriage therefore pushes to the
forefront an important question we should have thought about long
ago: What business is it of the state's whom I choose to
marry? Why should the state be involved in a private union of
two people any more than is necessary to protect each individual's
legal and economic rights? If more states follow Vermont's
lead, and allow gay couples to join in civil unions, but not in
marriage, we may start asking: Legally, what is the difference?
If civil unions and marriage are the same in the eyes of the law,
why does the law need two names to refer to them? Can we permit
such separate-but-equal institutions—if they are kept separate,
can they possibly be kept equal?
Perhaps the state should limit itself to civil unions and stay
out of the private, sometimes religious, practice of marriage.
This distinction would allow states to treat all their citizens
fairly, without creating a kind of sexuality-based apartheid between
the institution of "marriage" and "civil union."
The Massachusetts Supreme Judicial Court's decision in Goodridge
vs. Department of Public Health is indeed a great victory
for equality and fairness; but a serious national discussion on
the role of the state in marriage has not yet begun. We need to
find ways to make sure that the rights of all citizens are protected
while allowing individuals to make their own choices about what
kinds of commitments should be called "sacred." We should
call into question the assumption that it is states that should
be defining marriage. We should take moral and religious questions
out of the hands of government, limiting the role of the state
to protecting the human, civil and economic rights of all its
residents.
In Essence
Three Mount Holyoke women are featured among "50 Women
Who Are Shaping the World" in the October issue of Essence
magazine. Included among the magazine's list of 50 leading
female, African American movers and shakers are award-winning
novelist and playwright Suzan-Lori Parks '85; high-powered
Hollywood producer Debra Martin Chase '77; and Beverly Daniel
Tatum, a longtime member of the Mount Holyoke faculty and administration,
who left to become president of Spelman College last year, after
serving for a semester here as acting president.
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