As everyone who hasn’t been living in a cave knows by now, the Massachusetts Supreme Judicial Court ruled in the case of Hillary GOODRIDGE & others] vs. DEPARTMENT OF PUBLIC HEALTH & another that the state’s Constitution prohibited the limitation of marriage to heterosexual couples. This has, predictably, set off a “culture wars” battle that is likely to rage through this year’s elections and beyond. The Massachusetts Court has been vilified and praised to the skies.

What’s really going on here?

This is one of the difficult situations in which ethics (systems of determining right from wrong), morality (formal sets of values and principles declaring what is right and wrong) and law ( legislated mandates declaring what a society will and will not permit) are all pulling in different directions, and the courts have to sort things out.

The initial challenge is an ethical one. Gay couples want the same rights as heterosexual couples, and by classic reciprocity principles, this is something all citizens can understand:

We would want the same thing, and thus the gay couples have the Golden Rule on their side. Two other modes of ethical analysis are not, at least not unequivocally. The moral systems of many Americans declare homosexual relations to be an absolute wrong, and thus conduct that should not and cannot be approved by legislation. So there is an absolutist analysis that opposes gay marriage, and a utilitarian analysis that says it is wrong as well. That analysis concludes that the institution of marriage, the stability of the family, and the welfare of society generally will suffer if marriage is expanded to include same sex couples; in classic utilitarian terms, the unequal treatment of gays is necessary to ensure a larger societal good.

The Court opinion disposes of the latter argument decisively by pointing out that it is pure speculation, and hardly different in persuasiveness than earlier arguments predicting societal disaster if inter-racial marriages were permitted. The real tension in the decision comes from its rejection of the legislature’s embrace of a dominant public morality, quoting the recent U.S. Supreme Court in Lawrence v. Texas (striking down sodomy laws) that its “obligation is to define the liberty of all, not to mandate our own moral code.” This language has provoked thoughtful attacks accusing the both courts of denying the role of morality in legislation. For clearly, a society’s laws must reinforce and express public morality; that’s what laws do. As attorney Alan Charles Raul pointed out in a Washington Post op-ed piece:

“In a republican form of government, which the Constitution guarantees for the United States, elected officials are meant to set social policy for the country. They do so by embodying their view of America’s moral choices in law. (This is a particularly crucial manner for propagating morality in our republic because the Constitution rightly forbids the establishment of religion, the other major social vehicle for advancing morality across society.) In reality, legislatures discharge their moral mandates all the time, and not just in controversial areas such as abortion, gay rights, pornography, and the like.”

This is true. But Raul and his fellow critics are wrong to read the courts as denying this. What the courts are saying is that morality must sometimes yield to the over-arching ethical principles that form the foundation of American democracy. Those principles include the right of all citizens to benefit equally from the laws, to be treated the same as other citizens, and to share equally in the benefits of living in America. Undeniably, marriage is one of those benefits; the Massachusetts Court makes that argument persuasively. Homosexuality is no longer illegal, so gay couples are full citizens with all the rights of full citizens. The court is saying that Americans (specifically citizens of Massachusetts) have agreed to one set of principles and values, and while they are free to adopt whatever moral system they choose, it cannot be expressed in law and public policy if it violates those core principles. This is consistent with judicial treatment of other core rights. We may find books or movies or song lyrics immoral, but the principles of free speech prevent us from banning them. We may find a gathering of American Nazis immoral, but they have a constitutional right to assemble.

The absolute condemnation of homosexuality has old roots: it arose from the classic “if everybody does it” standard, at a time in antiquity when the survival of a tribe, a race, or a community depended on procreation between men and women, and plenty of it. If “everybody” was homosexual, society was doomed, so it made sense to evolve strict taboos against the conduct. But while the taboo is still strong, the primary reason for it has disappeared. There is no threat of diminishing population; quite the opposite. And as the elimination of legal sanctions and the Gay Rights movement have made gays more visible in society, Americans now find that they have gay co-workers, friends, classmates and neighbors, and that they are, simply, people. In the absence of any concrete documentation of factors justifying the withholding of equal treatment under the law for gay citizens, the court in Goodrich has clarified a hierarchy of values, starting with the Massachusetts Constitution.

It was the right approach.

A constitutional amendment is the correct remedy for those who want to pursue it. Americans can then debate whether the moral absolute against homosexuality should trump the broad and universal rights articulated in the state and federal constitutions.

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Related Link:

• http://www.socialaw.com/sjcslip/sjcNov03c.html