Harold in the Hartford Courant: "Ruling Raises Questions About States' Role in Marriage"

This opinion piece ran in the Hartford Courant on Wednesday, November 19, 2003

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.

James Harold is an assistant professor of philosophy at Mount Holyoke College in South Hadley, Mass.