Courts and Same-Sex Marriages

In a close 4-to-3 decision allowing same-sex marriages, the Massachusetts high court has touched off a national debate over whether other states must eventually honor the marriage license of any gay couple from the Bay State.

The debate is likely to focus in part on the balance of power between the courts and legislatures, and on whether judges can create a wholly new constitutional right just for gays while at the same time altering the tradition of civil marriage between opposite sexes that's been licensed by elected governments for centuries.

Since 1995, 37 states have passed laws affirming that civil marriage can be defined only as the union of a man and woman. Other states may now rush to enact similar measures, even as some in Congress try to amend the US Constitution to define marriage in traditional terms.

Ultimately, the US Supreme Court could be asked to decide if the Constitution's "full faith and credit" clause forces states to honor any marriage license from another state. That's been untested in the high court.

In the meantime, the debate has been usefully framed by the winning and losing opinions in the Massachusetts decision, which centered on this question: Can judges challenge a legislature's authority in granting marriage licenses if there's been no discrimination based on an individual's sex?

The majority compared the rule against same-sex marriages to old laws that prevented marriages between whites and racial minorities. "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason," in not giving gay couples - and their children - the benefits and protections of marriage, the majority wrote.

But does a state really discriminate against a gay individual by saying he or she can marry only someone of the opposite sex?

The marriage law "creates no distinction between the sexes, but applies to men and women in precisely the same way," the minority wrote. "Similarly, the marriage statutes do not discriminate on the basis of sexual orientation."

The two sides differed on whether civil marriage is a right that courts can define, or simply an institution created by state statute that a legislature could, if it wanted to, simply repeal (or as in Vermont's case, call by another name, civil unions).

The majority in the Massachusetts decision didn't clearly assert that marriage is a fundamental right, perhaps knowing that legislatures have created civil marriage from the outset. The minority, meanwhile, noted that the legislature's power to regulate marriage for social purposes is exercised with equal protection to both sexes.

Judges and lawmakers in the US should not get trapped into a debate over whether marriage is a state's way to protect society's interest in procreation. Clearly, that question has been settled: Legislatures do regulate marriage.

Rather, they should settle whether the issue of same-sex marriage should be decided in the public arena of legislative action or in the private chambers of a few judges.

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