Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council. This article appeared in First Things on January 3, 2014.
November 18 marked the 10th anniversary of the landmark decision by the Supreme Judicial Court (SJC) of Massachusetts which resulted in that state becoming the first to issue civil marriage licenses to same-sex couples. In Goodridge v. Department of Public Health (440 Mass. 309), the court declared, Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.
Chief Justice Margaret H. Marshalls ruling for the Court got just about everything wrong (as the three dissenting Justices in the 4-3 decision made clear in three separate opinions). Justice Francis X. Spina pointed out that individual rights were not even at stake: There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing partner of the opposite sex.
Justice Robert J. Cordy described succinctly the rational basis for limiting marriage to opposite-sex couples, noting that an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.
The late Justice Martha B. Sosman (herself a liberala former Planned Parenthood board member) made the important distinction between what the law permits and what it requires. The fact that there are exceptions to the rule of marital procreation, she wrote, does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits. Justice Cordy also identified what the Court was actually doingusing the liberty and due process clauses as vehicles merely to enforce its own views regarding better social policies.
With so many errors of law, logic, and procedure, what could Marshalls Goodridge opinion have gotten right? Only one thingshe acknowledged that what the Court had done was nothing less than change the very definition of the word marriage.
Marshall wrote, Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.
Reviewing the history of marriage law in the Commonwealth of Massachusetts, she acknowledged that the Legislature . . . incorporated the common-law definition of marriage into the first marriage laws nearly three centuries ago, and declared clearly, We have recognized the long-standing statutory understanding, derived from the common law, that marriage means the lawful union of a woman and a man.
Justice Sosman (the liberal dissenter) was equally clear in her explanation of one rational basis for keeping marriage as the union of a man and a woman:
It is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences.
Why does this matter? It matters because it directly contradicts the way advocates of gay marriage, ten years later, almost always try to frame the issue at stake. They would have us believe that the issue is the right to marry, or access to the institution of marriagea right or access which homosexuals are arbitrarily denied because of who they are.
The framing of the issueas a matter of definition, or as a matter of equality of rights or access to marriageis important for another reason. It makes a huge difference in the results of public opinion polls on the issue. The media has largely accepted the line that a majority of Americans now support same-sex marriage. That is true, however, only if one looks at polls which frame the issue in terms of rights, equality, and participation in marriage.
Polls that frame the issue more honestly, as a question of the definition of marriage, produce a very different result. No less than seven national polls taken from 2011 through 2013 have shown that clear majorities of Americans oppose changing the definition of marriage. For example, when asked a question in the abstract, Americans support the traditional, one-man one-woman definition of marriage by almost two-to-one. A poll in April 2013 asked, Do you support or oppose a measure defining marriage as between one man and one woman? 60 percent said they would support such a measure, while only 32 percent said they would oppose it.
Even when the impact on same-sex couples is expressly mentioned, opposition to changing the definition of marriage remains strong. A June 2013 poll asked, Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples? Only 39 percent said they would approve of such a redefinition, while 56 percent said they would oppose it.
The issue is not Who may marry? or marriage equality, no matter how ubiquitous that meme has become. The true issue is, What is marriage? or marriage redefinition.
Anyone who doubts that need only look to the Court where it all began.