Does marriage matter?

Posted: Nov 27, 2003 12:00 AM
The swirl of opinion that came in after the ruling of the Massachusetts Supreme Judicial Court tells its own story, which is that the judicial arm has achieved a moral standing not even dreamed of by Cotton Mather, or mere popes and rabbinical councils. Witness the failure of the two major political parties to take corporate positions on gay marriage.

The Republicans, reflecting the 75 percent of their members who disapprove of the ruling, have criticized it but have not gone so far as to call formally for a constitutional amendment. There is talk of an amendment, but talk also of the unwisdom of traveling in that decisive way. And on the other side, 52 percent of Democrats disapprove of gay marriage, but there is certainly no talk of constitutional intervention by any Democratic candidate for president. This is substantially owing to the training we have had over three generations to the effect that the court is the moral arbiter of behavior. Democracy's temple.

There are lines of a political character drawn. The Defense of Marriage Act (1996) specifically relieves the states from constitutional full-faith-and-credit obligations in the matter of same-sex marriages. Andrew Sullivan, the Catholic gay activist writer, hails the Massachusetts decision warmly and informs his considerable constituency that all that is established by the Massachusetts ruling is that in that state, gay marriage must be sanctioned. This does not mean that Utah has to sanction it, because the Defense of Marriage Act successfully makes its way across the divide of Article IV of the Constitution. We have then an opportunity for the full bloom of federalism: gay marriages in those states that go along, forbidden where forbidden.

A qualifying legal point derives from the opinion itself. What the court narrowly (4-3) ruled was that the language of the state constitution of Massachusetts simply forbids the kind of distinctions that are enforced by limiting marriage to two-gender participants. The Commonwealth has 180 days in which to contrive language that is not discriminatory, but -- is. The Constitution might say that marriage is a union between two people who can create a third person. A different approach would be to distinguish between the nature of benefits conferred on couples who take on the burdens of raising children and those who do not; though there would surely arise a Philadelphia lawyer conjoining with another Philadelphia lawyer to find something constitutionally objectionable in the very idea.

Dramatic revisions are coming up from the fever swamps of the anthropologists, who are saying: Why not just forget the institution of marriage? After all, 26 percent of Americans live alone, and about half of those who marry proceed to get divorced. So why not a market solution to the whole business? Let the parties who decide to cohabit for more merely than a night, or even a month, devise an agreement of sorts having to do with how property should be distributed if they break up. Oh yes, if there were children, how would custody be arranged? All the business about paying the bills and visiting rights -- couldn't a thoughtful arrangement be made here, suited to the different personalities of the participants?

"In the last five years," says Carol Sanger, who teaches family law at Columbia Law School, "there's been much less written on 'why do we need marriage; it's an oppressive relationship,' and much more on alternative forms of marriage."

Indeed we do not know how exactly the major political parties will come down on the question. David Blankenhorn, president of the Institute for American Values, ruminates that what we know as the institution of marriage originated about 5,000 years ago in Mesopotamia, "when males were brought into the (mother-child) family." But that was done, back then, without reference to the Massachusetts Supreme Judicial Court, and its status is therefore properly in abeyance.