Just What Is Marriage Anyway?

Alan Hirsch is a senior consultant for the UCLA School of Law's Williams Project on Sexual Orientation Law and Public Policy.

The Massachusetts Supreme Judicial Court's decision to protect same-sex marriage is destined to become conservatives' rallying cry against "judicial activism" -- liberal judges who disregard the judiciary's limited role.

But, legally speaking, the decision in this case -- in which seven homosexual couples sued the state in an effort to receive the right to marry their longtime companions -- is in fact conservative.

Conservative judging involves paying close attention to precedent. In this case, the Massachusetts high court appropriately sought guidance from U.S. Supreme Court decisions, including one in June that struck down an anti-sodomy law in Texas.

And an older Supreme Court case, which the Massachusetts court consulted, offered even clearer guidance. In 1967, in the aptly named Loving vs. Virginia, the court struck down laws banning interracial marriage, saying people should be allowed to choose their marriage partner free from the moral qualms of others. As the court put it, "Under our Constitution, the freedom to marry, or not marry, a person of another race resides within the individual and cannot be infringed by the state."

Does this conclusion lose force if we substitute "the same gender" for "another race"? The Massachusetts court thought not, and for good reason.

Opponents of same-sex marriage reject the interracial analogy on the ground that marriage, by definition, involves a man and a woman. This argument is empty. It invokes the statutory definition of marriage, but that definition is precisely what the gay litigants challenged. Marriage can be redefined -- must be redefined -- if it violates the Constitution.

That's what happened in Loving, when the court effectively redefined marriage to include interracial couples.

Some argue that the concept of same-sex marriage is a departure from the traditional understanding of what constitutes the institution of marriage -- but as late as 1950, in many states that understanding entailed a man and woman of the same race. By the time Loving was decided, 16 states still maintained that definition.

Precedent aside, some will insist that the Massachusetts court overstepped its bounds by essentially rewriting the marriage statute.

Just two weeks ago, a New Jersey Superior Court judge rejected a claimed right to same-sex marriage on precisely that ground. Judge Linda Feinberg wrote: "The redefinition of rights is not properly accomplished through an equal-protection challenge in the courts. Rights are defined by the Legislature, not the judiciary."

The suggestion that a Legislature's determinations of public policy are immune from court challenge contradicts doctrine established by the Supreme Court 200 years ago in Marbury vs. Madison.

Nor is the definition of marriage somehow exempt from the courts' power of judicial review -- as Loving makes clear. The Supreme Court redefined marriage because the definition in Virginia and many other states violated a cherished constitutional ideal: equal protection of the laws.

Massachusetts trotted out several state interests, including the desire to promote certain moral values and have children raised in an optimal setting. These same interests were present in 1967 when Virginians felt that interracial marriage was immoral and a defective setting for raising children.

Massachusetts also argued that the ban on same-sex marriage reflected the essential link between marriage and procreation. This state interest could conceivably distinguish same-sex marriage from interracial marriage, but it's not an interest rationally related to Massachusetts' marriage statute. Neither Massachusetts nor any other state conditions marriage on ability or interest in procreation.

The Massachusetts decision employs the most accepted tools of judicial reasoning -- precedent and analogy. It extends to gay couples a right that flows out of Supreme Court decisions.

That's not radical. Quite the reverse.

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