- The Washington Times - Wednesday, March 24, 2004

The national debate over same-sex “marriage” was kick-started last fall in Massachusetts.

On Nov. 18, four justices of the Massachusetts Supreme Judicial Court legalized same-sex “marriage” in that state by ruling that it was unconstitutional for the state to deny “marriage” licenses to couples because of their sex.

The justices stayed their decision for a 180-day period that ends May 17.

Highlights of the majority ruling and dissenting opinions of the three justices are presented below in a question-and-answer format.

From the majority opinion by Chief Justice Margaret H. Marshall, Justice Roderick L. Ireland, Justice Judith A. Cowin and Justice John M. Greaney:

Is marriage important?

Yes. “Marriage is a vital social institution.” It “anchors an ordered society by encouraging stable relationships over transient ones,” helps ensure “that children and adults are cared for and supported” and “provides for the orderly distribution of property.”

Hasn’t marriage in Massachusetts always meant a union of a man and a woman?

Yes. “But that history cannot and does not foreclose the constitutional question” about whether a group can be prohibited from marrying because of “a single trait,” such as sexual orientation. “[T]he right to marry means little if it does not include the right to marry the person of one’s choice.”

Can Massachusetts maintain its marriage law, which allows only one man and one woman to marry?

No. It “violates the basic premises of individual liberty and equality” under the law. The state constitution “forbids the creation of second-class citizens.” Banning “marriage” for homosexuals “works a deep and scarring hardship on a very real segment of the community for no rational reason.”

What does the court now say about marriage?

“We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”

Can’t Massachusetts keep marriage between one man and one woman, since that union is a “favorable setting for procreation”?

No. “Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family.” While it’s true that many married couples have children, “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 civil marriage.”

Can’t Massachusetts keeps marriage between one man and one woman, considering that ensures the “optimal setting for child rearing”?

No. “Protecting the welfare of children is a paramount state policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. … It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of state benefits because the state disapproves of their parents’ sexual orientation.”

Won’t “broadening” marriage destroy the institution of marriage?

No. “As a public institution and a right of fundamental importance, civil marriage is an evolving paradigm.” In the past, there were “alarms” about ending bans on interracial marriage, expanding rights of married women and introducing “no-fault” divorce. “Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.”

From dissenting opinions by Justice Francis X. Spina, Justice Martha B. Sosman and Justice Robert J. Cordy.

Is Massachusetts’ marriage law, which allows only one man and one woman to marry, discriminatory?

No. “It creates no distinction between the sexes but applies to men and women in precisely the same way. … Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.”

Is there a fundamental right to “marry the person of one’s choice,” including someone of the same sex?

No. “[E]xcept for the occasional, isolated decision in recent years … same-sex marriage is not a right, fundamental or otherwise, recognized in this country.” Years ago, when courts ruled against bans on interracial marriage, they said that states “had no compelling interest in limiting the choice to marry along racial lines.” But these rulings did not redefine marriage and the U.S. Supreme Court “did not imply the existence of a right to marry a person of the same sex.”

Is the majority opinion correct when it says it’s not rational to exclude homosexuals from marrying?

No. “[T]he opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternative family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach.”

Can this court decide a constitutional issue by “broadening” state marriage law?

No. “Today the court has transformed its role as protector of individual rights into the role of creator of rights. … [T]he power to create novel rights is reserved for the people through the democratic and legislative processes. … The court has transmuted the right to marry into a right to change the institution of marriage itself.”

What else is faulty in the majority’s reasoning?

The court concludes that because same-sex couples are now raising children, they need the benefits of civil marriage and the state must provide those rights. But “many people are raising children outside the confines of traditional marriage. … That does not mean that the Legislature must accord the full benefits of marital status on every household raising children” or that “the state is required to provide identical forms of encouragement, endorsement and support to all of the infinite variety of household structures that a free society permits.”

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