For a couple hundred years, give or take a few, democratic debate has been a bedrock of the American governmental process. I wish to further it here by responding to U-Wire columnist Joe Schilling's opinions on recent Massachusetts Supreme Court ruling on the constitutionality of same-sex marriage. I also want to avoid the common pitfall of editorial responders by engaging in a tit-for-tat game of rhetorical point-scoring. Although I do disagree with many of Mr. Schilling's statements, a simplified analysis of the ruling and the legislative and judicial processes of the state of Massachusetts do not further our endeavor to understand this issue. I offer, instead, this alternate view of the issue.
The ban on same-sex marriage was found unconstitutional in Massachusetts in two ways. One, the state of Massachusetts, in not allowing same-sex marriage, overstepped its bounds in infringing upon individual autonomy as provided in its state's constitution.
Secondly, it violated the constitutional right of equal protection under the law as legislated by its representatives in their Constitution. It can be argued that even if the state's constitutional laws did not provide this equal protection, the U.S. Constitution does. To say that the justices of Massachusetts' Supreme Court have become judicial activists and that they take on a role of creator of rights is inaccurate. Their function, in the framework of our democratic system, is to ensure that the state of Massachusetts does not pass any law that violates the constitutional rights of its citizens. It did, and the Supreme Court should be commended for issuing a decision in a highly politicized matter that enumerates what hasn't been before: same-sex marriage cannot be denied based on existing constitutional law.
There is much talk of various states passing constitutional amendments defining marriage as a union between a man and a woman, effectively banning same-sex marriages. There is debate on proposing a similar federal constitutional amendment. The states of Hawaii and Vermont, which have civil union recognition, did not pass constitutional amendments defining marriage until after those civil union victories were won by gay rights advocacy groups. Consider why there are proposals to ban something through constitutional amendment that is already denied to certain citizens in all 50 states. One reason is certainly because legislators realize that the only sound constitutional avenue for banning gay marriage is through a constitutional amendment. As the Massachusetts constitution currently exists, as well as the U.S. Constitution, bans on same-sex marriages would not pass a test of constitutionality because of past court opinions setting precedents that protect individual rights to privacy as well as equal protection under the law. Regardless of moral objections, the law provides the right to marry to both men and women regardless of whom they choose to marry.
The term sanctity of marriage is quickly becoming a morally and politically charged term; including in this ruling the implication that it opens the door to legalized polygamy, bigamy or incest is also a misrepresentation. Those items are simply not covered in the scope of this ruling. Whether their legality could be challenged based on this ruling is a wholly different legal debate.
Discussing same-sex marriage entirely in a constitutional framework does leave something out. Mr. Schilling touched on it when he begins, Almost everyone has gay friends
maybe even a gay relative ... If that were true then more people could appreciate the restrictions placed on gay and lesbian citizens' agency by discriminatory legislation. If more people did, perhaps we wouldn't confuse the morality with the legality of this issue.
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Bryan Morris
