Just What Is Marriage Anyway?

Douglas W. Kmiec is professor of constitutional law at Pepperdine University.

The high court of Massachusetts has declared that gays have a right to marry under that state's constitution. In doing so, Massachusetts has placed itself at odds with the vast majority of states, including California, which reserve marriage to a husband and a wife. Californians passed Proposition 22 in 2000 by a margin of 61% to 39% to provide that "only marriage between a man and a woman is valid or recognized in California."

The Massachusetts opinion reveals, again, that too many members of the judiciary are willing to say: We, the judges, rule.

When Alaska and Hawaii courts reached a similar conclusion a few years ago, the people of both states promptly reasserted themselves by constitutional amendment. Vermont avoided direct conflict with its people by mandating the legislative creation of a homosexual "civil union."

The Massachusetts ruling is likely to have national consequence because, in redefining marriage, it assumes same-sex licenses will be issued within 180 days. Reserving marriage to a man and a woman has never been premised on mean-spirited exclusion. It is the rational belief based on millenniums of experience that marriage is a cultural institution, not merely a lifestyle choice. Marriage promotes procreation, ensures the benefits of child rearing by the distinct attributes of both father and mother and makes intimate sexual activity orderly and socially accountable. That not every marriage is blessed with children hardly meant, until now, that states had to fashion laws for the exception rather than the rule.

As a cultural matter, unless reversed by the people of Massachusetts by constitutional amendment, Tuesday's decision further embeds the highly self-centered notion of marriage as merely gratifying the desire for intimacy. Of course, abiding friendship has always been necessary for a good marriage, but to find, as the Massachusetts court did, that marriage is merely a long-term, permanent commitment while expressly rejecting as its essential aspect the begetting and moral formation of children is to severely injure community by elevating self over obligation to others.

Massachusetts has declared the thinking of all the nation -- except itself -- to be irrational. In doing so, it denies that marriage fosters an accountability to family. Construction of a family through marriage forms a bond between husband and wife and thereby invites natural kinship and an interconnectedness that is irreplaceable.

As a legal matter, Congress has anticipated the Massachusetts aberration. In 1996, President Clinton signed the Defense of Marriage Act, or DOMA. It defines marriage, for purposes of federal law, as the union of a man and a woman and affirms that no state is required to recognize a same-sex marriage contracted in another state.

On its face, DOMA seems constitutionally well drafted, capable of preventing the Massachusetts mistake from spreading nationwide. Congress has express authority under the U.S. Constitution to enact laws concerning the "effect" of out-of-state rulings. It is also well-settled law that although recognition is generally given to out-of-state marriages, they need not be recognized if they violate a strong public policy of the receiving state.

But does well-settled law or cultural tradition count any longer? Certainly, it is possible to envision a federal court being pressed to rule that DOMA or California's Proposition 22 or the equivalent laws in the majority states are an expression of irrational animus contrary to principles of equal protection. Marriage is the "primary weave in the social fabric," as the dissenters in the Massachusetts' case eloquently wrote. What's more, accepted principles of equality have long taught that only those similarly situated must be treated similarly. However, the gay marriage ruling illustrates that neither law nor moral discernment is much defense against judges who assume they are wiser than their fellow citizens.

The Massachusetts ruling tears at the institution of family upon which all else depends. It is not about the ability of same-sex couples to live together or be intimate with each other. It is about saying that such intimacy is all a marriage is. It is wrong as a matter of law and policy -- as has been expressed by the people.

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