With President Obama’s historic declaration that he now favors same sex marriage, it’s good to remember that this all began here in Massachusetts nearly ten years ago with the Supreme Judicial Court’s decision in Goodridge v Department of Public Health in November 2003. Up until that time, I was of the “civil unions with the same rights as marriage are sufficient” class, but reading the Goodridge decision made me immediately see the irrationality of that position. Giving same sex couples all of the rights and privileges of marriage but not the label of marriage was not the same. It was discriminatory for no reason other than we weren’t used to or comfortable with the concept. From the moment I read Goodridge, my own support for same sex marriage was unequivocal.
While same sex marriage has achieved the exalted status of the routine here in the Commonwealth, it’s still controversial in much of the rest of the country and so will be much in the news in the coming months. For that reason, I thought it useful to share some of the critical paragraphs of Goodridge, just so we’re all reminded of the legal rationale of the decision. Here’s the opening paragraph of the decision by then Chief Justice Margaret Marshall:
The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.
The court next acknowledges that the decision is a profound departure from societal and cultural tradition while recognizing that opinions in 21st century America do differ on this issue:
We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach.
The court next enumerated all of the benefits of marriage:
Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” [citations omitted]. Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.
And then identifies the harm done to those deprived of the right to marry:
Without the right to marry–or more properly, the right to choose to marry–one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.”
And explains why the ban on same sex marriage violates the Massachusetts Constitution:
The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.
In history, nothing beats original source documents. Read them yourself and draw your own conclusions; read what someone else says about them and your information risks being tainted by the biases of the intervening interpreter. For that reason, whether you are a supporter or an opponent of same sex marriage, please take 15 minutes and read the full Goodridge decision to better inform the arguments, pro or con, that you’ll be making in the coming days.