The Massachusetts Supreme Judicial Court’s 4-3 ruling, in Goodridge v. Department of Public Health, that the Massachusetts constitution—if not the federal Constitution—requires the state to allow same-sex marriages has thrown nearly everyone into a good old-fashioned tizzy. The Massachusetts court somehow discovered that it was “arbitrary” and “capricious” and therefore legally impermissible to limit the legal benefits of marriage to heterosexual couples. In response, some are urging an amendment to the U.S. Constitution declaring that marriage can only occur between two people of opposite sex; some are trying to get the Massachusetts legislature to repudiate the reasoning of its court; and many more are wailing, gnashing their teeth, and decrying the low moral state into which the culture and the judiciary have fallen. All of this is understandable, but the truth is that, in the Anglo-American system, marriage has always had an uneasy relationship with secular law, and, to the extent that the Massachusetts decision reminds us of this, there might actually be something to be said in favor of the decision.
Consider the words of Sir William Blackstone, writer of the classic Commentaries on the Common Law of England (1765-68), the book that was second only to the Bible in circulation in early 19th-century America. Blackstone was no champion of homosexual “marriage,” but he understood that the common law’s relation to marriage was simply to confirm its use as a means of combining the property and personal rights of husband and wife, with control placed (albeit supervised to a limited extent) by the law in the hands of the husband. The wife was to be provided for and entitled to one-third profit from her husband’s lands during her life if he predeceased her, and the law would intervene if the husband failed to perform his duties. Except for her “paraphernalia,” which included her ceremonial jewels, most of her property could be disposed of by her husband, and, while the marriage endured, she was incapable of entering into contracts or even of testifying against her husband in court. This did not bother Blackstone, who essentially believed that the arrangement was in the best interests of both husband and wife—especially the latter, since “So great a favorite is the female sex of the laws of England.” Even so, Blackstone regarded the aspects of marriage supervised by the secular law as not the essence of the institution. Indeed, he opens his discussion of marriage by remarking that “Our law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience.”
In colonial and early republican America, marriage was rarely regulated by the law, and the curiously named institution, unknown in England, of “common-law marriage” (whereby the law would recognize a man and a woman as husband and wife if they lived as such for an extended period of time) took hold. The consequence of this was simply to render their issue “legitimate” in the eyes of the law and to allow husband, wife, and children whatever benefits the law accorded, especially the ability to inherit property if spouse or parent died intestate. By the middle of the 19th century, however—probably because of the influence of some theorists who argued that the unit of loving Christian husband and wife was a basic building block in a good republic—the language of the law shifted to speak in terms of the contribution marriage made to morals rather than to property rights. In Reynolds v. United States (1878), the U.S. Supreme Court, in the course of a decision upholding the prohibition of polygamy, declared that
Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.
Polygamy tended to lead in most societies to despotism, and so, the court held, it was inconsistent with the needs of America.
This period was a sort of golden age of judicial patriarchy waxing eloquent about the married state of husband and wife, how it was the natural one for women, and how it accorded with divine plans. Said Justice Bradley, in a U.S. Supreme Court case upholding Illinois’s power to bar women from the practice of law: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” “The constitution of the family organization,” he went on, “which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.” Thus, for Bradley, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adopted to the general constitution of things, and cannot be based upon exceptional cases.” Bradley’s views, which were probably shared by a majority of men at the time, made sense in an era when even the Supreme Court could confidently declare, as it did in Church of the Holy Trinity v. United States (1892), quoting the earlier words of New York’s influential Chancellor James Kent, that “The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice . . . We are a Christian people, and the morality of this country is deeply engrafted upon Christianity.” Moreover, the Supreme Court noted in Church of the Holy Trinity that, “It is also said, and truly, that the Christian religion is part of the common law . . . These and other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”
The Old Testament ostensibly leaves open the possibility of polygamy, but the New Testament appears to have been interpreted as binding on the U.S. Supreme Court (and thus the country) in its suggestion that marriage is only between one man and one woman. These days, however, one risks universal excoriation if he tries to argue that the United States is a “Christian nation,” as Mississippi Gov. Kirk Fordice discovered a few years back. The story of the law in the second half of the 20th century is, in part, a repudiation of Christian concepts and their replacement by a set of notions designed to promote “self-actualization” or the maximum achievement of individual freedom—freedom from the regulation of the state and its imposition of traditional morals. Goodrich is simply the latest case to follow this trend.
Beginning in the 1960’s, the U.S. Supreme Court found in the Establishment Clause license to bar mandatory prayer and Bible-reading in the public schools. In the name of individual freedom, the states endorsed “no-fault” divorce, so that virtually any dissatisfied party could walk away from a personally unfulfilling marriage. At about the same time, any social stigma to having children outside of wedlock began to vanish, so that, by the end of the 20th century, more than half of the children in some ethnic and racial groups were not born to married parents, and the figure for the entire society was hovering around 25 percent. The nuclear Christian family, endorsed by 19th-century law, was dying.
At the same time, the U.S. Supreme Court began to discover that there was a “right of privacy,” as one notable decision put it, that emanated from penumbras somewhere around the First, Fourth, Fifth, and Ninth Amendments, and that this meant that no state could prohibit married adults from purchasing contraceptives. This was followed by the infamous Roe v. Wade (1973) decision, which extended the right to privacy to prohibit states from barring early-term abortions. This “right” was eventually expanded to prohibit all “undue burdens” on abortions at any time during pregnancy, to permit at least some partial-birth abortions, and, most recently, in Lawrence v. Texas (2002), to bar criminal penalties for consensual homosexual sodomy. Justice Scalia, in his dissent in Lawrence, stated that the Supreme Court “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” It was no surprise that Goodrich cited Lawrence in its opening paragraphs. Scalia lamented that the Supreme Court was, in his words, “largely signing on to the so-called homosexual agenda.”
It might be closer to the truth, though, to say that the majority of the Lawrence Court had signed on to unbridled individual discretion and a refusal to allow legislators to make any moral judgments whatsoever. This seemed to be the message implied by the Goodrich court, when it quoted the U.S. Supreme Court’s dubious language from Planned Parenthood v. Casey (1992)—invoked again in the majority opinion in Lawrence—that “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.” As Notre Dame law professor Gerard V. Bradley put it in his critique of the passage, “the justices wish to be seen as affirming the right of each person to make up his own moral universe, but to affirm it without making any moral commitments of their own. As if taking the view that everybody can, or should, or should be thought to, inhabit his own world were all ‘neutral’ propositions.” “Making up one’s world,” Bradley astutely notes, “is existentially impossible, no more empirically available than a unicorn. Of course, some people believe in unicorns.”
The majority of the justices on the U.S. Supreme Court, and the majority of the justices on the Massachusetts Supreme Judicial Court, then, are hunting unicorn. As columnist John Leo remarked, “The Massachusetts decision depicted marriage as an intimacy choice for individuals.” Dazzled, perhaps by their visions of unicorns, the four Massachusetts justices simply lost sight of the fact that marriage is about more than simply the carnal desires or the individual dignities of two persons. As Leo explained, “Procreation and child rearing, central to a prevailing view of marriage for most of Western history, pretty much disappeared in the decision.”
The unreflecting, perhaps self-deluding, embrace of unbridled individualism is bad enough, but, following the Massachusetts court’s ruling, there was a bevy of howls about how it is improper for mere one-person majorities of state or federal courts to alter hundreds of years of belief, tradition, or morals by judicial fiat. Leo lamented:
Why do judges behave this way? One reason is “landmarkism.” The loudest applause from the legal academy tends to come after a far-reaching allegedly progressive decision unsupported by public opinion, and with no real basis in the U.S. Constitution or case law. No judge gets to be admired by the legal and media elites by simply following law and precedents. No glamour there.
For whatever reason, the four Massachusetts justices seemed to have taken leave of their senses. As Roger G. Wilkins wrote in Meridian, the Massachusetts majority had forgotten the traditional purpose of marriage: “The bearing, rearing and acculturation of children are social interests of surpassing importance.” Denying what now can be achieved in the petri dish, Wilkins argued that “Procreation requires a coupling between a man and a woman. Here, if not in constitutional law, not all sexual relationships are equal.” Refusing to bow to the Massachusetts court’s reading of the social-science data, Wilkins argued that
[T]he common experience of mankind—documented by a growing mountain of research—demonstrates that the best environment for the rearing and training of a child is within a stable marriage between the child’s biological father and mother. These simple facts, as true today as they were thousands of years ago, provide more than ample grounds for the specialized treatment—and social benefits—conferred upon marital unions.
Wilkins conceded the Goodridge majority’s view that limiting marriage to possibly conventional procreative partners “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently . . . inferior to opposite-sex relationships,” but he stoutly maintained that “A homosexual ‘marriage’ will never produce a child. Henceforth, however, we all must officially ignore this fact.”
“Gay marriage” advocates could counter Wilkins’ argument with their own studies, which claim that homosexual partners could rear adopted—or, for that matter, cloned—children just as well as heterosexual couples can, and we can expect such an argument to be made with increasing frequency in the future. The real question that needs to be addressed is whether the decision about the definition of marriage should be left to the courts or to the people. For four decades, conservatives have railed against justices usurping the legislative function, but this seems to have had virtually no effect in the area of sexual relations, intimate association, or the “right to privacy.” As long as Senate Democrats can employ the filibuster, there will be no U.S. Supreme Court justices placed on the bench who do not sign on to the “mystery passage” view of individualism and morality.
A federal marriage amendment is still possible, of course, and it is even conceivable that, by the time you read this, the Massachusetts legislature will have authorized “civil unions” for homosexual couples, conferring all the benefits of marriage (but the name) on their arrangements, thus preserving something of tradition. The lesson of Goodrich and Roe and Lawrence, however, is that this country may now be embarking on a few decades in which the law will not allow governmental action to be taken in the name of traditional morality. Those who seek to preserve that morality will only be able to do it through their private associations—their churches, their families, and their independent schools. The nature of the uneasy compromise is suggested by the fact that the same Supreme Court that declared that consensual homosexual acts could not be punished as a crime did recently protect the purported First Amendment “right of association” of the Boy Scouts of America to exclude practicing homosexuals from Scout leadership. This “right of association” is an extratextual creation, something like the “right of privacy,” but the Court has been just as firmly committed to it over the same decades.
No power on earth seems capable of restraining our judges, unless it is the force of elite public opinion. That opinion still pays lip service, at least, to the free exercise of religion (expressly guaranteed by the Constitution) and to the importance of private property and private association. Perhaps it is time to go back to the view that marriages and families and the sacred bonds that unite husbands, wives, and children can best flourish in a relationship severed from the state, one that does not depend on a capricious judiciary or political process. There has been no consistent treatment of marriage over time. Perhaps it is wrong to use the government to dictate the details of this precious institution, and perhaps marriage needs to return to the Church. Cultures evolve, and not always for the better. American law follows cultural trends, but American law has wisely (at least up until now) sought to permit a maximum of individual freedom to associate not only for economic ends but for spiritual ones. The Court’s articulation of myopic individualism, for the time being, is balanced by its understanding that the most important individual right is to gather in association. Taking advantage of that understanding may be the best thing that we can do for marriage.