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December 18, 2003

Flawed Logic

From colonial times Massachusetts followed the English common law definition of civil marriage as “a voluntary union for life of one man and one woman, to the exclusion of all others.” With the decision of the Supreme Judicial Court last month in the case of Goodridge et al vs. Department of Public Health that definition was changed. Marriage in Massachusetts is now “a voluntary union of two persons as spouses to the exclusion of all others.”

State statutes presently prohibit polygamous marriage, marriage between those of too close consanguinity, and marriage by those not of age. However, the law does not expressly prohibit same-sex marriage. But even if it did, such a statute would be overruled by Goodridge, which was decided on the basis of a constitutional right.

The primary legal basis for the Court’s decision is Article 1 of the Declaration of Rights of the Massachusetts Constitution. It provides:

“All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”

The Court recognized the authority of the state to create and regulate civil marriage through exercise of the police power. However, the court also ruled that the right to marry is constitutionally protected. Thus, any government intrusion into this right, as a minimum, must not be “arbitrary or capricious” if it is to pass constitutional muster.

The Court’s opinion then proceeded to attack the objections to same-sex marriage as insubstantial and thus failing to be more than “arbitrary and capricious.” One assertion, that the requirement for marriage was restricted to heterosexual couples in order to provide a “favorable setting for procreation,” came under especially harsh attack.

While the Court acknowledged that “most married people have children together,” they assert that the “procreation” argument nonetheless fails because the licensing law does not require applicants to “attest to their ability or intention to conceive children by coitus.” Also, the Court objects that people incapable of reproduction are still able to get married.

This argument is specious on its face. A mere declaration of procreation has no more certainty than the promise to “love and cherish till death do us part.” It was quite enough to know that a man and woman living as husband and wife would very likely beget children. The Court acknowledges the common sense of this assumption.

In fact, most married couples are undoubtedly more likely to have children than they are to avoid divorce. This truth vitiates the Court’s assertion that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is sine qua non of civil marriage.”

The clear intention of the Court’s opinion is to elevate the status of same-sex relationships to that of heterosexual marriage. But this objective cannot be accomplished without denigrating the authority of the state to control marriage. Do applicants for a polygamous marriage now have the civil right to receive a license? Do applicants for a marriage that would otherwise be barred because of consanguinity now have a civil right to a license if they can establish that one of them is incapable of procreation?

Certainly, homosexuals deserve the respect and protection from violence due all individuals. However, with tortured logic, the state Supreme Judicial Court now asserts that society must also recognize the validity of same-sex marriage.

 

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