July 18, 2006
Gay Marriage Posted by John Steele Gordon at 01:40 PM EST Joshua Zeitz has come forth with a remarkably interesting historical anecdote, certainly new to me, regarding Richard Nixon and gay marriage. It is, I think, further evidence that Nixon was a remarkably complicated and conflicted figure, essentially tragic in nature. Shakespeare, I imagine, would have found him one of the most interesting twentieth-century American Presidents.
I certainly agree with Nixon that 1970 was far too early for gay marriage to be a political possibility. After all, that was only one year after the Stonewall Riot, regarded by many as being to the gay rights movement what the fall of the Bastille was to the French Revolution, and three years before the American Psychiatric Association would remove homosexuality from its Manual of Mental Disorders.
And I agree that we have come far in the intervening 36 years. But have we come far enough to make gay marriage a legal fact?
He doesn’t quite say so, but I assume that Mr. Zeitz favors the legalization of gay marriage. I hope he will be pleased to learn that I do as well. I agree with the majority of the Massachusetts Supreme Judicial Court in its famous 2003 ruling in Goodridge v. Department of Public Health that as far as I can see there is no rational reason to deny gays the right to marry.
But I don’t agree with the majority’s conclusion that the marriage law of Massachusetts was therefore invalid under the state constitution’s equal protection language, written by John Adams in 1784. Because I (or the court majority) can’t find a rational reason doesn’t mean there isn’t one. We are not dealing with mathematics here; reasonable people can—and, heaven knows, do—disagree on the subject. Three of the seven members of the court, in fact, disagreed and dissented vigorously. New York’s top court, not a nest of troglodytes, recently came down on the opposite side.
Certainly, if one were to raise the shade of John Adams and ask him if he thought his language regarding equal rights guaranteed the right of two people of the same sex to marry, that most famously grumpy of Founding Fathers would give us a very grumpy answer indeed.
When reasonable people disagree, I think it is very poor public policy for a majority of a court to impose its opinion as a matter of constitutional law, usurping the power of the elected branches to make public policy. It says, in effect, “We, and we alone, know what is right. You peasants will do as we tell you.” It is not surprising in a democracy that the sovereign power (the people) often don’t take kindly to such pronouncements.
Many have argued that this decision is no different than Brown v. Board of Education, which outlawed racial segregation. I disagree.
First, Chief Justice Earl Warren, who had spent years in the political arena, knew that the decision would raise a tremendous political uproar and therefore was very careful to see to it that the decision was unanimous, greatly adding to its force. The majority in Goodridge seemed oblivious to the fact that the existence of three dissenting justices greatly weakened the majority’s argument that “there is no rational reason . . .”
Second, Brown dealt with a constitutional provision that was unquestionably applicable to the case at hand. The Fourteenth Amendment had been written precisely to prevent state governments from oppressing racial minorities. In 1895, the Court had ruled in Plessy v. Ferguson that separate facilities for blacks and whites did not violate the Fourteenth Amendment, provided that the facilities were equal. Brown then argued that the country had had nearly 60 years in which to test the separate-but-equal doctrine put forth in Plessy, and that the doctrine didn’t work, that separate was inherently unequal.
Brown overturned a Supreme Court precedent; Goodridge changed the very nature of the oldest and most universal of human institutions, one that has always and everywhere consisted of a union between people of different sexes. If ever there was a matter of public policy that should be settled by the political process, this is it. As Mr. Zeitz has shown, public opinion has been moving steadily in the direction favorable to the legalization of gay marriage. Vermont has already legalized civil unions for gays that are marriage in all but name. Doubtless other states will follow in time. My guess—remember, dear reader, that I’m always excessively optimistic—is that in another generation, gay marriage will be no more controversial than, say, women voting was by 1930.
The Massachusetts Supreme Judicial Court, with their judicial chutzpah, may well find that they have delayed, not advanced, the day when gay marriage is non-controversial in Massachusetts. By taking the question out of the hands of the legislature and the governor, they have forced those opposed to gay marriage to try to amend the state constitution. They may well succeed. If one quarter of the members of the legislature twice agree (with an election intervening) to the proposed amendment and the people ratify it at the next election, then the prohibition against two people of the same sex marrying will be explicitly in the constitution, not just a statute, and changing it therefore will be much more difficult when a majority of the people support such a change.
With the tide of history clearly running in the direction of gay marriage, the action of the Massachusetts court did not do gays any favors.
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