- The Washington Times - Sunday, February 15, 2004

Goodridge vs. Department of Public Health is looking more and more like the Roe vs. Wade of the same-sex marriage movement. Not only did the ruling depend on shaky constitutional reasoning, but it energized the opposition by seeking to shortcircuit a public debate still in its early stages.

The decision by the Supreme Judicial Court of Massachusetts requiring state recognition of same-sex marriages has generated enough outrage to launch a thousand op-ed pieces and inspire a flurry of legislative activity. Most conspicuously, it has led to a constitutional debate in Massachusetts, where the legislature remains deadlocked over an amendment to overturn the court’s decision, and in Washington, where President Bush is expected to endorse a Federal Marriage Amendment any day now.

By now, the positions in this controversy are familiar. For its supporters, same-sex marriage is a matter of fundamental fairness, of equality before the law. For opponents, it’s an attempt to win official endorsement of homosexuality by hijacking an inherently heterosexual institution.

Bridging this gap may seem a fool’s errand, but a compromise has been suggested by the same court that set off this rancorous debate. If the publicly stated views of leading advocates and critics of same-sex marriage can be taken at face value — a big if, I’ll admit — this compromise ought to satisfy nearly everyone and obviate the perceived need to monkey around with the Constitution.

Earlier this month, the Supreme Judicial Court said it would not be acceptable for the legislature to give homosexuals all the rights and privileges of marriage while calling it by another name. The name itself was important, the court said, because the only point of calling the relationship between two men or two women a “civil union” rather than a “marriage” would be to signify the second-class status of homosexuals.

Justice Martha Sosman, who dissented from the court’s decision in Goodridge, noted that giving marriage licenses to same-sex couples was not the only way to satisfy the majority’s objection. “Rather than imbuing the word ‘marriage’ with constitutional significance,” she wrote in a footnote, “there is much to be said for the argument that the secular legal institution, which has gradually come to mean something very different from its original religious counterpart, be given a name that distinguishes it from the religious sacrament of ‘marriage.’ … The legislature could, rationally and permissibly, decide that the time has come to jettison the term.”

Significantly, this solution seemed acceptable to the majority. Chief Justice Margaret Marshall said giving a new name — “civil union,” say, or “household partnership” — to a legal arrangement available on an equal basis to homosexuals as well as heterosexuals “might well be rational and permissible.”

Such a switch may seem like a word game, but it would reflect an important reality: Civil marriage is not synonymous with “the sacred institution of marriage,” which existed long before the state started doling out marriage licenses.

A couple can be married under Jewish law, for example, without being married under civil law, and vice versa. Orthodox Jewish authorities will never recognize a union between two men or two women as a marriage, no matter what paperwork the state agrees to issue.

The state does not own marriage and therefore cannot change it to the liking of this or that interest group. It is astonishing that conservatives, of all people, are so quick to grant the government that kind of power over something they hold sacred.

The Federal Marriage Amendment says, in part, “Marriage in the United States shall consist only of the union of a man and a woman.” Taken literally, the amendment forbids religious groups from sanctioning homosexual unions; a minister who officiated at such a ceremony would be violating the Constitution. The absurdity of that scenario suggests how confused our thinking about marriage has become.

At the same time, the amendment’s backers insist it would not bar states from granting same-sex couples all the legal advantages of marriage, so long as the arrangement was not called “marriage.” The president himself has said he has no problem with legal provisions that allow same-sex couples to take care of things like hospital visitation rights, insurance benefits, and inheritance, provided “the sanctity of marriage” is preserved.

The best way to do that is to take marriage — the word as well as the institution — back from the state.

Jacob Sullum, a senior editor at Reason magazine, is a nationally syndicated columnist.

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