'Equal' does not mean 'same'
IN ITS NOV. 18, 2003, decision, the Supreme Judicial Court declared legal measures excluding same-sex couples from "marriage" to be unconstitutional. The court, however, did more than extend the use of the word "marriage" to the union of same-sex couples; it declared that there is "no rational reason" involving societal interests for the differential treatment of same- and opposite-sex couples.
The court's 52-page ruling is a densely documented history of Massachusetts marriage law and reasons justifying, supporting, or dissenting from the court's majority view. But the critical substance of the judgment is found in those few pages where the court argues that there is "no rational reason" for the historic differential treatment of same- and opposite-sex couples, suggesting rather that "the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual." How sound is that argument?
The court examines three possible reasons for differential treatment, and the most important is the relationship between marriage and procreativeness. The court acknowledges "one unbridgeable difference between same-sex and opposite-sex couples." How does the court reason its way to the conclusion that the procreativeness of the physical expression of love and self-giving of opposite-sex couples is not a reason that justifies its differential treatment from that of same-sex couples?
It does so by first citing a Superior Court judge's assertion that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." And it then declares this statement to be "incorrect."
The court's argument goes that if this were correct, our laws should require applicants for a marriage license to attest to their ability and intention coitally to conceive children and should make fertility and consummation a condition of marriage, and in this way should deliberately "privilege" heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family.
But, the court argues, since civilly legal marriage is not dependent for its existence on fertility or consummation and marriage licenses are issued without regard for procreative ability or intention, the rationale for disparate treatment based on procreativeness collapses.
What this argument conceals is a massive supposition -- a straw man the court itself placed in the defendant's field, namely, that "marriage is procreation" and that actual procreation is the "sine qua non" of every marriage.
In short, having assumed that any relationship to procreativeness would have to mean actual child bearing in every instance of marriage, and having recognized how contrary to fact this position is, the court then freed itself to define marriage without any reference or relationship whatsoever to procreativeness. "It is the exclusive and permanent commitment of the marriage partners, not the begetting of children, that is the sine qua non of civil marriage." "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
Mistakes in argument do not invalidate court decisions. And words themselves have no a priori, permanent meaning. But the issue here is not words; it is about realities -- the relationships the words stand for. Words mean what we agree they shall mean, but mustard is still not a bird, as Alice reminded the duchess, and the difference between same- and opposite-sex relationships merits them significantly different roles in human life without either being relegated to a second-class example of the other.
Two scholars recently suggested that the court itself has left open the avenue to resolve these dilemmas. These scholars read the court as having ruled only that the Department of Public Health did not provide a reason justifying the current statute. If court precedent prevents the court from reconsidering its own faulty reasoning in the Goodridge decision, the court's willingness to examine the full range of reasons should allow it to stay its order until the Legislature has time to reenact and litigate a statute in which reasons for differential treatment are expressed anew.
What the court and the Commonwealth should want to avoid at all costs is to let stand an order that "marks a significant change in the definition of marriage . . . as understood by many societies for centuries" that has been issued on the basis of reasoning that is clearly specious.
The Rev. J. Donald Monan is chancellor and former president of Boston College.
