Immodest Proposal

by Jeffrey Rosen | December 21, 2003

Last June, when the U.S. Supreme Court struck down sodomy laws in Lawrence v. Texas, critics objected that the unnecessarily broad opinion would reignite the culture wars by encouraging the lower courts to create a right to gay marriage before the public was ready to accept it. On November 18, in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court vindicated the critics’ most extravagant fears, expansively citing Lawrence to justify its decision to redefine marriage to include same-sex unions. In addition to being constitutionally unconvincing, the decision was also politically naive.

Over the past decade, three other state courts—in Hawaii (1993), Alaska (1998), and Vermont (1999)—have grappled with the question of gay marriage, provoking starkly different reactions. In Hawaii and Alaska, the courts produced overly expansive rulings recognizing gay marriage as a constitutional right. Both decisions quickly incited a popular backlash and were subsequently overturned by state constitutional amendments. In Vermont, by contrast, the state supreme court offered the legislature the option of creating civil unions for gays and lesbians and guaranteeing them all the legal rights of marriage under a different name. Although this solution didn’t satisfy all advocates of gay and lesbian equality, it was a plausible reading of the Vermont constitution. And, because of its modesty, the Vermont opinion—unlike those in Alaska and Hawaii—has not been overturned. The Massachusetts court should have followed the example of its New England neighbor; instead, by presuming to redefine marriage, it threatens to provoke an unnecessary political backlash and to weaken the judiciary with another self-inflicted wound.

Although the Alaska and Hawaii courts both declared a right to gay marriage, they offered different reasons for their conclusions. The Alaska court said that the right to marry was fundamental and concluded that, if a right is fundamental, it must be extended to everyone on equal terms. This conclusion is less obvious than it appears: The U.S. Supreme Court opinions in the 1920s that called marriage a fundamental right referred to the fact that the right of men and women to marry was recognized by state common law. But state common law also imposed (and continues to impose) all sorts of restrictions on the right, prohibiting not only same-sex unions but also polygamous and incestuous ones. These restrictions suggest that, even if marriage is a fundamental right, the state can refuse to extend it to unions of which it disapproves. And, if marriage really is fundamental enough to be extended to everyone on equal terms, then presumably the restrictions on polygamy and incest might have to fall as well. (At the very least, the restrictions would have to be shown to serve compelling interests, such as preventing harm to women or children.)

The Hawaii Supreme Court took a different tack, arguing that the ban on gay marriage amounts to sex discrimination, because it declares that Ms. X is allowed to marry Mr. Y but is prohibited from marrying Ms. Z. In fact, both genders are being treated alike—men and women are both forbidden from marrying members of the same sex. And, unlike laws that prohibited blacks and whites from marrying each other, the laws banning same-sex marriage aren’t designed to stigmatize or subordinate one gender or the other.

While the Goodridge ruling cites the fundamental rights and sex-discrimination arguments offered by Alaska and Hawaii, it endorses neither. After a lot of huffing and puffing about marriage being a fundamental right, the Massachusetts court refuses to conclude that only compelling state interests can justify its restriction. Instead, the majority says that it doesn’t have to decide whether the state has compelling reasons for restricting marriage, because none of the reasons the state offers are rational. (The Massachusetts court deals with the incest and polygamy objections by simply ignoring them—a footnote baldly announces that “nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.”) As for sex discrimination, while a concurring justice develops the argument at length, it is skimmed over in the majority opinion. (And with good reason: When Massachusetts legislators proposed a state constitutional amendment in 1976 declaring that “equality under law shall not be denied or abridged... because of sex,” they said explicitly that it shouldn’t be construed to lead to gay marriage, and the voters of Massachusetts relied on these assurances in ratifying the amendment.)

Instead of following the adventurous logic of the Alaska and Hawaii rulings, the Massachusetts court offers a rationale more adventurous still: There are no rational reasons, it announces, for restricting the benefits of marriage to heterosexual couples. As a constitutional matter, this is a bold and unprecedented conclusion. Ordinarily, rational basis review is a very relaxed standard of scrutiny: If any reasonable legislator could believe that there are plausible and legitimate reasons for the law, judges will uphold it. Although the three reasons offered by Massachusetts—promoting procreation, encouraging the raising of children in two-parent biological families, and conserving limited state resources—might well not pass muster under heightened scrutiny, it’s hard to argue that they’re completely irrational.

Consider the strongest reason Massachusetts offered for restricting marriage to men and women: the claim that children raised by same-sex couples may not do as well as children raised by their biological parents. In fact, the empirical studies of same-sex families are hotly contested and tend to be based on small and nonrandomized samples. But, under rational basis review, judges are supposed to defer to legislatures unless the reasons they offer are transparently implausible. Since some reasonable legislators might rationally view the state of scientific evidence as unsettled on the question of whether same-sex families are as successful at raising children as parents of opposite sexes, the Massachusetts court should have deferred to the legislature’s judgment.

Similarly, the state’s case that the prohibition on gay marriage is intended to encourage procreation, while weak—it’s hardly obvious that allowing gays and lesbians to marry will discourage straight couples from getting married and having kids—should clear the relatively low hurdle of rational basis review. As a dissenting justice notes in Goodridge, it’s the people challenging the law who have the burden of proving that reserving the hundreds of legal and social benefits of marriage to straight couples couldn’t conceivably affect the decision of some straight couples to marry and have kids. And the fact that the law is, as the lawyers say, over-inclusive—not all married straight people have kids—doesn’t mean it’s irrational. Under rational basis review, laws are supposed to be upheld as long as the reasons offered on their behalf aren’t a transparent ruse for some kind of illegitimate prejudice.

This leads to the hardest question in Goodridge. You might well assume that, if the state were truly interested only in promoting heterosexual monogamy and procreation—as opposed to making a social statement that gays and lesbians deserve less respect than heterosexuals—then it would extend the legal benefits of civil unions to gays and lesbians. The fact that these unions have not been available in Massachusetts might be seen as a signal, then, that all the talk about the virtue of heterosexual monogamy is a dishonest mask for the real purpose of the law—to degrade gays and lesbians by signaling that they’re not as worthy of respect as heterosexual couples. And no one would deny that a legal arrangement designed to degrade gays and lesbians can’t pass constitutional muster, even under rational basis review.

This is especially obvious after Lawrence v. Texas, which suggested that moral disapproval alone can’t justify restrictions on individual autonomy. Critics of Lawrence plausibly objected that this principle is hard to detect in the U.S. Constitution: For more than 200 years, American judges have assumed that the states were free to restrict private behavior in order to protect public “health, safety, and morals.” But it’s possible to read Lawrence more narrowly. In his opinion for the U.S. Supreme Court, Justice Anthony Kennedy said that Lawrence was not a case about “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Perhaps he meant that moral disapproval might not justify the criminalization of private conduct that inflicted no third-party harms on the public—such as sodomy or masturbation—but that the state was free to express moral approval or disapproval of certain public relationships (such as marriage) as long as the purpose of the distinctions wasn’t to stigmatize or degrade individuals or groups.

Armed with this more modest reading of Lawrence, the Massachusetts Supreme Judicial Court might have produced an opinion that followed the Vermont Supreme Court’s reasoning along the following lines: Massachusetts is free to reserve the label “marriage” for heterosexuals simply because it thinks that maintaining the traditional definition will preserve its social prestige at a time when heterosexual marriage needs all the help it can get. But it can’t do so in a way that is designed to degrade or stigmatize gay and lesbian unions or to grant them unequal benefits under law. Therefore, the restriction of marriage to heterosexual couples can’t be justified unless the Massachusetts legislature immediately creates civil unions or its equivalent for gays and lesbians.

A decision along these lines would have required a degree of judicial activism. But it would have been well-rooted in the U.S. Supreme Court’s repeated declarations that states can’t create legal inequalities for the sole purpose of degrading or stigmatizing people of whom they disapprove. Since eliminating caste-based distinctions is one of the central purposes of the equality guarantees in the U.S. Constitution, a decision along these lines would have been defensible on historical grounds as well.

Some gay marriage proponents argue that creating a separate but equal track of civil unions is itself unconstitutional. Extending gays and lesbians the legal benefits of marriage while withholding the social benefits that accompany the word “marriage” makes a statement, they argue, that gay unions are less worthy of respect than straight ones. But this conclusion, too, is not convincing. As the same-sex marriage proponent William Eskridge notes in an eloquent essay endorsing the Vermont experiment, civil unions are neither separate nor strictly equal to marriage (gays and lesbians are left without marriage rights at the federal level). But they are clearly designed to ameliorate a caste-like apartheid system rather than to reinforce it, and they are a pragmatic recognition of the fact that nearly 60 percent of the country opposes gay marriage and a smaller percentage opposes civil unions. The genius of the Vermont solution, Eskridge writes, “is that the state insisted that traditional family values give way to the recognition of lesbian and gay rights, but lesbian and gay family values give way to accommodation of traditionalist anxieties for the time being. Once civil unions in action reveal to Vermonters that lesbian and gay relationships are serious and loving (and fraught with most of the same problems as marital unions), the state might be ripe for graduation from [civil unions to gay marriage].” Indeed, this is exactly what took place in the Netherlands, where, just three years after the state created registered partnerships for gays and lesbians, it transformed those partnerships into same-sex marriages.

Instead of gradually proceeding from civil unions to gay marriage, as Eskridge advises, the court’s overreach may force Massachusetts to retreat from gay marriage to civil unions. The rulings in Alaska and Hawaii triggered political backlashes that brought about constitutional amendments banning gay marriage. The best way to avoid a similar outcome in Massachusetts may be a judicial sleight of hand. The Goodridge opinion says that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution.” If the legislature passes a bill recognizing civil unions—as the governor has proposed—one of the judges in the Goodridge majority might conclude that this was enough to guarantee same-sex couples the “protections, benefits, and obligations of civil marriage.” The judge who jumped ship would have to ignore the fact that majority opinion went out of its way to redefine the common-law meaning of marriage to include same-sex couples: “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others,” the majority declared. Perhaps the best way for the legislature to respond to this statement is simply to ignore it. Of course, had the court explicitly invited the legislature to create civil unions, no winks and nods would be necessary.

It’s important for liberals who applaud the results in Lawrence and Goodridge to criticize the clumsiness and heavy-handedness of their legal reasoning. Both decisions seem calculated to drive social conservatives crazy, with their cavalier treatment of precedent and their rhetorical overconfidence. (Both decisions go out of their way to cite similar decisions by European and Canadian courts, confirming the fears of social conservatives who dread the internationalization of U.S. domestic law.) Both also presume to decide the most hotly contested cultural battles by narrow judicial majorities. By trying to impose gay marriage by judicial fiat, the Massachusetts court may set back the cause of gay and lesbian equality rather than advance it. In the United States, social revolutions are always won or lost in the court of public opinion; and the legalization of the culture wars is a sign of weakness rather than strength.

Jeffrey Rosen is the legal affairs editor of The New Republic and author of The Most Democratic Branch: How the Courts Serve America.This article appeared in the December 22, 2003 issue of the magazine.

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