On February 4, 2004, the Supreme Judicial Court of Massachusetts declared that the state legislature may not offer "civil unions" instead of marriages for same-sex couples. This ruling comes on the heels of a November ruling that made barring gay and lesbian couples from marrying unconstitutional. This historic move by the Massachusetts judicial system guarantees that the first state-recognized same-sex marriages in U.S. history can take place beginning mid-May. Now, the Massachusetts legislature is left with no alternative but to seek an amendment to the state constitution that would establish marriage as an opposite-sex institution. However, even if this amendment is approved, the voters of the state need to ratify it in a referendum which cannot be held before 2006. So, the state will be required to issue marriage licenses to same-sex couples beginning May 18.
While this ruling is an obvious victory for the proponents of same-sex marriages, there are obviously many opponents who believe that this ruling is just another example of activist judges legislating from the bench. President Bush finds this ruling troubling, commenting that it breaches the "sanctity of marriage." Conservatives around the country are outraged at the court's ruling because it potentially contradicts the majority opinion in this country. It is important to remember, however, that majority opinion should not always be the guiding principle of a country. There was a time when majority opinion tacitly supported slavery and segregation.
In fact, there is sufficient reason to remember Brown v. Board of Education (1954), one of the landmark Supreme Court cases in American history. This ruling overturned Plessy v. Ferguson (1896) and ended segregation by recognizing that separate is inherently unequal. Massachusetts Chief Justice Margaret H. Marshall understood the parallels between segregation and the proposal of civil unions when she wrote, "The history of our nation has demonstrated that separate is seldom, if ever, equal." If same-sex couples can enjoy the protections, benefits and obligations of civil marriage, then there is no reason to call it anything but marriage. If civil unions are allowed to exist, then the country will revert to a time when "separate but equal" was considered a fair and logical concept.When Plessy v. Ferguson was ruled, the lone dissenter -- Justice John Harlan -- noted with incredible foresight: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." More than a century later, the rights of another group of citizens are being threatened and some of the same arguments are being presented. History should be evidence enough that creating a second-class of citizens leads to nothing but hatred, oppression and injustice. The principle is the same: When people fear something, they want it removed from their experience. Sometimes, that means that blacks cannot eat at the same restaurants. Other times, it means that same-sex couples cannot get married legally. Massachusetts' Supreme Court has recognized these parallels and should be applauded, not admonished, for its foresight and courage.
Ultimately, this is an issue of the sanctity of marriage. It depends on how marriage is defined and the role marriage is perceived to possess in society. Some claim that marriage should lead to the creation of a familial unit, optimal for raising children. This definition stems from the basic fear that children being raised in a same-sex marriage will tend to "become" homosexual. There is no empirical evidence that this fear has any validity, but even if it did, is the creation of more homosexuals in society something that the state can or should prevent? Personal opinions and judgments are the prerogative of every citizen. The state, however, should have only one consideration: the protection of equal rights under the constitution.
The debate about same-sex marriages should not become a debate about homosexuality. Whether one approves or disapproves of homosexuality, it would be unjust to deny same-sex couples the same rights and protections of marriage. By banning same-sex marriages, this country essentially would cast a moral judgment on homosexuality. The idea that marriage should be between a man and a woman is inherently religious. America is not a theocracy, so religious sentiment has no place in the government's functioning. It took nearly 60 years for the injustice of Plessy v. Ferguson to be recognized. And, finally, someone recognized the injustice of illegal same-sex marriages. Perhaps the Massachusetts Supreme Court is being activist, but sometimes only activism catalyzes progress.
