The Supreme Judicial Court of Massachusetts declared Tuesday that it is just plain unfair to ban two women (or two men) from marrying each other. Listening to the usual suspects launch into their usual outraged sputterings, I thought of my 6-year-old nephew, who has recently begun using the exclamatory phrase "my whole life" to emphasize his strong feelings about various topics. (As in, "That playground has been here my whole life!" Or, "I've lived in Texas my whole life!") Sure, this decision opens a whole new door into civil marriage, wrote the Massachusetts court's chief justice, Margaret Marshall -- but as a former anti-apartheid activist in South Africa, she presumably knows from personal experience that defending traditions because people have done things a certain way their whole lives isn't a very convincing argument.
More about hysterical defenses of so-called tradition shortly. First, I want to address the two most common questions I've heard in the last 24 hours: Is this a final ruling or does the Massachusetts legislature have to approve same-sex marriages? And will Massachusetts marriages be valid across the United States?
The first question is easy to answer: This is very much a final ruling, utterly unlike the Vermont Supreme Court's 1999 decision in Baker v. State, which instructed the legislature to make its gay and lesbian citizens equal but didn't specify how. Vermont lawmakers did the least possible to satisfy that ruling: They passed a civil-unions law but declined to throw open the doors of marriage to same-sex couples. The civil-unions law declared that same-sex couples could receive all the state benefits that married couples enjoy. But there was a problem. According to the 2000 U.S. census, Vermont law governs 608,827 people (and sundry cows). So a few thousand same-sex couples got the responsibilities and protections -- important ones, to be sure -- covered by state law, but because they don't get to use the word marriage, their unions don't trigger any federal protections. These protections include the ability to pass on Social Security benefits and federal pensions to a spouse, as well as the "full faith and credit" clause of the U.S. Constitution, which requires states to recognize one another's contracts. As a result, if, say, a lesbian couple from Vermont drives to New York and one partner is killed in a car crash, her widow would not necessarily be able to take charge of her dead spouse's body to ship home for burial. (And, yes, gratuitously cruel though it may sound, lesbian and gay survivors have indeed been told that they cannot take charge of a dead partner's corpse and that a blood relative must be found instead.)
Some people have wondered whether the 180-day stay that the Massachusetts court imposed on the ruling will let lawmakers wriggle out of fully opening marriage to same-sex couples -- that is, whether the legislature could, like its counterpart in Vermont, come up with a compromise that stops short of full equality for gays and lesbians. The answer is simple: No. The 180-day deadline is partly procedural -- it leaves time for the state attorney general's office to challenge the ruling on technical grounds (which the office has said it will not do) -- and partly a courtesy to the legislature. During the next six months, lawmakers may (note that key word) change the state's marriage laws to conform with the court's decision. Mary Bonauto of Gay and Lesbian Advocates and Defenders, the lead lawyer in the case, says that, for example, the legislature could amend the state's consanguinity laws to make explicitly clear that a woman may not marry her father or brother or her mother or sister. But whether or not the legislature acts, marriage licenses will be issued starting in mid-May. (My guess is that ocean-view Provincetown wedding venues are rapidly being booked, and that same-sex weddings will quickly begin moving down the Cape to Truro, Wellfleet and beyond.)
Of course, the legislature could start the process of changing the state constitution to restrict marriage to heterosexual partners. But that would be procedurally complex, and the earliest that a constitutional amendment could appear on a statewide ballot would be 2006. More important, Bay State voters are against such a measure. A poll conducted this past summer by the firm Decision Research found that 55 percent of Massachusetts residents favor civil-marriage rights for same-sex couples; 77 percent, meanwhile, oppose altering the state constitution to deny such rights to lesbians and gay men. Over the next three years, as folks see that nothing changes when the two gals or two guys next door get married -- no locusts, no plagues -- those numbers should only increase.
Which brings us to the second question: Will same-sex marriages performed in Massachusetts be recognized elsewhere in the country? It's a complex question because recognition of marriage is not a onetime-only event. Challenges will come up bit by bit, in one federal agency and state court and hospital room after another. Many different officials will have to decide if same-sex marriage is valid in their square inch of bureaucratic or legal territory. And those answers will differ from one jurisdiction to another.
My guess is that immigration will be one of the first fronts for a marriage challenge. Binational same-sex couples have a particularly difficult lot in the United States. If Mark falls in love with Volker, a German, and Volker loses his job, the fact that the men own a house together won't stop Volker's residency permit from expiring. Binational couples desperate to stay together will now race to Massachusetts to get married -- and then throw their marriage licenses at the Immigration and Naturalization Service. The whole scenario could well end with a federal court challenge to the Defense of Marriage Act (DOMA), which says that, for federal purposes at least, marriage is limited to one man and one woman. Such a challenge could be derailed if Congress passes a bill sponsored by Rep. Jerrold Nadler (D-N.Y.) that would allow same-sex partners to sponsor a foreign-born partner for residency in the United States.
There will also likely be a federal challenge on the issue of taxes. After Hillary and Julie Goodridge -- the lead plaintiffs in the Massachusetts lawsuit -- get married this May, will they file their federal taxes jointly in the spring of 2005? Those couples who do will be poised to challenge the federal DOMA as well.
The third likeliest challenge, and one that will be fought in state rather than federal courts, will come over child custody. Many heterosexual divorces result in child-custody decrees saying that, if children are staying overnight, the parent may not have an "unrelated adult" in the house (unless the parent has remarried). If someone gets divorced, comes out as gay or lesbian, and subsequently falls in love, that person may be forced to choose between his or her children and his or her partner. What happens when post-divorce parents come to Massachusetts to get married, then go home and tell the court that now they can have their children and their partner stay with them?
Regarding custody questions, and many others, decisions will vary by state and by judge. Civil marriage is generally invoked in four situations: disease, disaster, dispute and death. If someone dies while owning a house in another state, will that state recognize his or her marriage for the purpose of letting a partner take control of the house? If two people get married in Massachusetts and then move to another state where they have a nasty split, will a family-law judge recognize their marriage for the purpose of giving them a divorce?
The answer? "Yes" in some places, sometimes, for some purposes -- and "no" in others. Marriage recognition will be a complicated patchwork of insult, victory and challenge for years to come.
That said, I am certain that Massachusetts marriages will eventually be valid throughout the country -- and that same-sex marriages will someday be performed in every state. It's impossible to predict how many years that will take. But public opinion is moving to our side much faster than any lesbian or gay activist I know ever imagined it would, even five years ago.
Which brings us to those outraged sputterings. Don't believe the propaganda that says marriage has always been a static, solid pillar of society. Marriage has always been a social battleground, hotly contested, its rules shifting for each era and economy, each culture and class. The only thing that's remained static about marriage is its name -- and the kind of vitriol it inspires whenever there's a change to its rules.
Let's start with the example of Horace Greeley. Like many pundits of his era, the mid-19th-century journalist and politician argued that legal divorce violated marriage's very definition as a union that joined two people for life. "There may be something better than Marriage; but nothing is Marriage but a solemn engagement to live together in faith and love till death," he argued. "Why should not they, who have devised something better than old-fashioned Marriage, give their bantling a distinctive name, and not appropriate ours?" In Greeley's mind -- and the minds of many a little more than a century ago -- Ronald Reagan, Bob Barr, John Kerry and so many other divorced and remarried politicians would have been outright polygamists.
Farther back in time, a 9th-century religious figure, St. Bernardine of Siena, in keeping with Catholic Church doctrine that sex was acceptable only for procreation, warned against contraception, whether through coitus interruptus or drinking a tea made of the herbs pennywort and rue. "It is better for a wife to permit herself to copulate with her own father in a natural way than with her husband against nature," he argued, while also noting -- equal-opportunity guy that he was -- that it "is bad for a man to have intercourse with his own mother, but it is much worse for him to have intercourse with his wife against nature."
At the turn of the last century, when contraception was an issue as hot as same-sex marriage is today, Teddy Roosevelt said that using contraception "is worse, more debasing, more destructive, than ordinary vice . . . not a whit better than polygamy." And in the 1930s, warning that contraception would soon be legalized, a New York archbishop wrote, "Religion shudders at the wild orgy of atheism and immorality the situation forebodes" (thus clearly predicting the 1950s).
Opponents of interracial marriage made similarly dire predictions. In 1872 a Tennessee judge wrote that if another state's mixed-race marriage were recognized in the Volunteer State, "We might have in Tennessee the father living with his daughter, the son with the mother, the brother with his sister. . . . The Turk or the Mohammedan, with his numerous wives, may establish his harem at the doors. . . . Yet none of these are more revolting, more to be avoided, or more unnatural than the case before us." Many other southerners threatened -- quite against the evidence in their own backyards -- that mixed-race marriages would produce sickly, mentally weak or infertile children.
Do all these prophecies of doom sound familiar? They should. Threats of incest, polygamy, orgiastic immorality and, of course, that perennial favorite, the destruction of the first-born -- these are the curses traditionally invoked when the rules of marriage change. Listen closely to their words and you'll hear that angry doomsayers are leveling an implicit threat: If you disobey me, you and your children will wither, and all civilization will collapse.
That didn't happen when society changed the rules of civil marriage -- that baggy, pluralist, one-size-fits-all legal idea -- on questions of divorce, contraception and race. Nor will it happen when Hillary and Julie Goodridge get married in Massachusetts.
The doomsday crowd's argument is, and has always been, very much like my nephew's new pet phrase: Marriage has been this way my whole life! Well, sure -- but that doesn't make it right. Because some of us have been waiting our whole lives for the right to marry.
E.J. Graff, the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution, is a visiting scholar at the Brandeis Women's Studies Research Center and a Prospect contributing editor.
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