Massachusetts Supreme Judicial Court Holds Ban on Same Sex Marriage Unconstitutional: "Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law." (ruling) (see also here and here (Nov. 18) and some good news articles here)

How do we judge such a decision? One important thing to do is to note that it is a state law decision, one that factored in state constitutional commands and practices. For instance, other states do not have similar anti-discrimination laws and acceptance of same sex couple adoptions. Or they might have explicitly anti-homosexual clauses in their constitutions (as Hawaii, recently amended, does). Likewise, there is a fear that such rulings will spread, like some kind of contagion (horrors!). Thus, the latter link argues that it will encourage a federal marriage amendment (aka a federal marriage discrimination amendment), which will inhibit legislative and societal change. Of course, there is no guarantee (especially given the Defense of Marriage Act) that other states will have to accept gay marriages authorized by other states, and even Massachusetts can amend its constitution to stop state decisions of this sort. But, yes, hysteria is a possible consequence, especially in areas where anti-gay religious sentiment dominates.

Rulings such as these make sense and use reasonable application of basic constitutional themes. The best way to go is a "take it slow" technique, and the Court did give the state six months to respond. Furthermore, Massachusetts is a fairly liberal state (Vermont, where this also basically occurred, is libertarian; Hawaii is liberal as well), so it has that going for it as well. Still, it is troubling when a major change of this sort occurs via a 4-3 ruling, the minority arguing that child rearing concerns are valid enough to justify the classification and that equal deprivation is not a violation of equal protection (both men and women must marry the opposite sex and no matter what sexual orientation you are, you can marry). I find such reasoning a tad bit specious (to put it mildly), but remember Loving v. Virginia (laws against miscegenation are unconstitutional) was unanimous.

We also have the "slippery slope" sort of arguments that we heard when the Supreme Court barred laws against homosexual sodomy. Mostly tedious though broadly reasonable in a "taken to its logical conclusion, if the world actually worked that way" way. For instance, "see, anti-discrimination laws, including the ERA, can be read to justify and/or assist homosexuals, including homosexual marriage." Yes, one stone of the wall and only the concurrence focused on equal protection of sex/gender. The concurrence was correct to argue that discrimination by sexual orientation usually results in discrimination by sex, partly because the latter is based on sexual stereotypes. It is not a broadly accepted view all the same.

As to the argument that now multiple marriages and incestuous marriages, explain to me how discrimination by sexual orientation is valid comparably as discrimination by those two criteria. For instance, where is the acceptance and anti-discrimination laws of such conduct? Yes, some religions (such as dissident Mormon sects) support polygamy and some forms of incest are rather tenuous (how about fifth cousins?), but it does not take too much to differentiate them from same sex relationships. Many support a basic right of privacy or individual liberty, even those against homosexual marriage, even though it might taken to its logical conclusion involve consensual use of drugs. Protections would be mightily limited if slippery slopes ruled the day, no matter what side you are on. [For instance, if you are against abortion, why allow it for woman's health?]

Massachusetts' constitution logically was read to ban discrimination. The state was given six months to adapt, though apparently (see today's discussion of the case here) there is not enough time to amend the document, which is troubling. All the same, the ruling was a good one, though the response might not be. All the same, naive as it might be, I share the sentiment of the concurrence:

"I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court's authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do."

[Update: Looking at the news coverage, we find out that: "President Bush denounced Tuesday's ruling. 'Marriage is a sacred institution between a man and a woman,' he said in London. 'Today's decision ... violates this important principle.'" This was not surprising, but even if you agree with it, look at it a bit closely. Is it really the state's role to determine what is "sacred?" I don't think so. Does the President think those religions that do feel same sex marriages are 'sacred,' are wrong and have no right to be honored by the state? Does he have a set of guidelines to determine what is and is not sacred? Just curious. As the ruling said, when it boils down to it, we are talking about a licensing statute. The sacred nature of the marriage is a private religious matter, one arguably often not present is marriages today or in the past.]