Society has steadily accommodated widespread adoption and childrearing by same-sex couples, the sympathetic portrayal of homosexuality in popular culture and the extension of employment and other benefits to same-sex couples (as one-third of Fortune 500 companies already do). But remember, until the Supreme Court ripped abortion policy away from legislatures -- arenas of persuasion -- America was more or less amicably adjusting conflicting views: In the five years before Roe vs. Wade (1973), 16 states with 41 percent of America's population liberalized abortion laws. After courts put abortion policy -- as they may yet put marriage law -- largely beyond political debate in the states, bitterness became constant.
Amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.
Opponents of same-sex marriages argue, inter alia, that such marriages will weaken marriage and injure society's interest in stable family units. Proponents argue, inter alia, that giving same-sex couples the choice of marriage, with its presumption of permanence expressed in a network of responsibilities and privileges, will reform not only homosexual life but society as a whole by strengthening the virtues that marriage is supposed to sustain.
There is inadequate evidence to confirm either proposition. And there is no evidence that either the Massachusetts court or the U.S. Supreme Court realize how far the logic of their recent rulings goes. Taken together, the rulings point toward a constitutional right to, among other things, polygamy.
Last June, the U.S. Supreme Court, overturning Texas anti-sodomy laws, spoke of a need to respect ``autonomy of the self ... (in) certain intimate conduct.'' The Massachusetts court, taking its bearings from that ruling, cited ``respect for individual autonomy'' -- emphasis added -- when defining marriage simply as ``the exclusive and permanent commitment of the married partners to one another.''
The binary idea of marriage -- friends and foes of gay marriage agree it is an institution involving couples -- arose because there are two sexes. But if the meaning of marriage and the right to marital status is sufficiently defined with reference to ``autonomy of the self ... (in) certain intimate conduct,'' what principled, nonarbitrary ground is there for denying the right of marriage to, say, a threesome whose members insist that it is necessary for their self-fulfillment through intimacy?