The Supreme Judicial Court of Massachusetts effectively abolished the institution of marriage last week. It didn't say that in its decision holding that same-sex couples had a right under the state constitution to marry in a civil ceremony. Chief Justice Margaret H. Marshall, author of the majority opinion, insisted that the court was doing exactly the opposite -- reinforcing "the importance of marriage to individuals and communities" by extending it to gay and lesbian couples. The traditional notion that marriage is supposed to be a union between a man and a woman is just plain irrational, she wrote, like the anti-miscegenation laws that used to bar marriages between people of different races.
Problem is, a union between a man and a woman isn't a restriction on marriage like an anti-miscegenation law. It is what marriage is. Or, more properly, it is what marriage has been deemed to be for as many millenniums as human beings have walked the Earth on two legs. It is not, as some people assume, just a religious definition mandated in the Bible or the Koran. It is implicit in the Twelve Tables of Roman law, from 450 BC, which defined a woman's rights when her husband managed her property, and in the Code of Hammurabi, written in 1750 BC, which said that a man must execute a marriage contract when he took a wife, or "that woman is not his wife."
To put it bluntly, marriage is gender discrimination. It is an institution that by its nature restricts one's choice of partners. To say, as Marshall did, that marriage is something else -- a government blessing for one's romantic commitments, for example -- is to abrogate the very idea of marriage.
There are reasons why formally and publicly recognized unions of men and women constitute the world's oldest and most enduring social institution. By keeping, or at least attempting to keep, sexual activity and procreation within the family, marriage fosters the stable emotional and financial conditions that are best for the raising of children; parents focus their energy and resources upon their offspring and each other. Marriage also protects women financially and emotionally after their years of childbearing and peak sexual attractiveness have passed. It creates powerful kinship networks that transcend personal feelings -- witness "The Sopranos" -- and provides incentives for the accumulation and orderly transmission of property.
Where the family has withered, the modern welfare state has failed abysmally at providing viable substitutes. Furthermore, both common sense and sociological research tell us that the specifically gendered components of a marriage partnership, the masculine and feminine sensibilities that a husband and wife each brings to bear, are key. Nearly everyone agrees that, although many single parents and homosexual couples manage to raise children admirably, young people as a whole do best living with one parent of each sex.
The Massachusetts decision was predictable. For at least 30 years, American society, along with Western society in general, has been systematically weakening the institution of marriage in the name of personal freedom and happiness. We have made it easy to walk out of a marriage, via no-fault divorce. We treat cohabiting couples as though they were legally wed. We have concluded that women don't need men. We have created a right not to have children, via abortion, and also a right to have children using eggs and sperm from hither and yon. We have concocted a right not to share our property with our spouses, via the prenup, and a right to have sex with whomever we please, starting in adolescence. In short, we have made marriage contingent, unstable and subjective in terms of commitment.
Weddings reflect this. They have turned from solemn exchanges of vows into overblown advanced-level debutante parties for the bride, with -- oh, yeah, almost forgot -- a groom somewhere. (Brides even dress like debutantes, having traded in their lace dresses and veils for strapless ball gowns and tiaras.) The one thing that has remained untouched throughout this transformation -- this breaking of the iron triangle of marriage, sex and procreation -- is the plethora of legal privileges and benefits, private and public, that have grown up around marriage. These range from income tax deductions to homestead exemptions to medical insurance coverage to inheritance and community property rights.
Not surprisingly, many gay and lesbian couples have reasoned that, given the ill-defined contours of heterosexual arrangements these days, they too deserve to get in on the boodle. After all, they work hard and pay their taxes like the rest of us, and by hook, crook and surrogate, some of them manage to produce children. If I were gay, I'd probably be wondering: Why should I have to hire a lawyer to write me a will when my property would pass automatically to my housemate and kids if I were a hetero?
If the Massachusetts ruling stands -- that is, if the citizens of Massachusetts fail to go through the laborious procedure of amending their constitution to overrule it -- the fallout could be enormous. In her majority opinion, Marshall declared that in being denied legal marriage, gays and lesbians in the state were "excluded from the full range of human experience." UCLA law professor Eugene Volokh argues that other groups that are also currently "excluded from the full range of human experience," as Marshall put it -- polygamists and adults who engage in consensual incest, for example -- may some day be in court raising their pleas to get married, too. And as Volokh, who supports same-sex marriage as a legislative proposition, points out, on what grounds could a court that has defined a ban on gay marriage as irrational not find a ban on polygamy equally irrational?
Given Marshall's reasoning -- that everyone is entitled to have the experience of marrying whomever he or she likes -- why should the fact that you happen to be married to someone at the time make a difference? Why can't you marry your sister if you think she's the one? Or your mother? Or for that matter, your dog? The decision also promises to widen the social fissure, mostly class-based, between those who still take marriage seriously and the professional and intellectual elite that believes the Massachusetts ruling is long overdue. (It is hardly coincidental that the 14 gay and lesbian plaintiffs who joined the suit all seemed to be lawyers, investment bankers, therapists and educators.)
But the real fissure that may ensue is likely to be the one between wishful thinking and reality. Thirty years ago, when we liberalized divorce, experts assured us that everyone involved would benefit, especially children, who would be happier now that their parents were happier. Studies now indicate nearly unanimously that divorce is devastating for children. We now know how desperately children, especially boys, need fathers. With the Massachusetts decision recognizing same-sex gay marriage, we have embarked on yet another grand experiment that erases the definition of marriage as it has existed from time immemorial. We should be thinking twice.