It is not difficult to divorce nowadays, for instance, but it
is harder to do than simply to file a change of address, whereas
members of gay unions at present can separate without recourse to
law. It will require a generation of adjustments, assuming that
the courts in Massachusetts and New Jersey prevail in this, to
know exactly what will be won or lost. But the commotion at the
moment is over the nominal point: Can the courts pronounce that a
marriage can be entered into by members of the same sex?
It was immediately understood, after the 2003 ruling of the
Massachusetts Supreme Judicial Court in Goodridge v. Department
of Public Health, that a solution embodying the popular will may
need to be achieved through a constitutional amendment. The same
arguments that prevailed early in the week in New Jersey will
certainly be used in arguing before the Supreme Court. And that
court is certain to confront, sometime soon ahead, the question
whether individual rights extend to the right of gay persons to
contract a "marriage" as defined by law and common practice.
President Bush has acknowledged the implications of the New
Jersey ruling, and the fever that built up three years ago is
reignited. There are men and women in America who have no designs
to limit the movements of gay Americans, but who believe that
notwithstanding this, there are sanctuaries that are naturally,
and organically, reserved for traditional arrangements between
men and women. There is something ranging between innocent
frustration and raw fury over the proposition that a society of
equal rights is required to disregard those characteristics that
make up a married couple. Mr. Bush may elect to launch a movement
for a clarification of the Constitution.