In his column "Judicial Overreach," Paul Starr argues that the recent Massachusetts decision was not only blind to the political reaction but also unpersuasive. Here, Phineas Baxandall responds.
Paul Starr's discussion of gay marriage and political tactics recognizes the perils of pushing Americans to use the "M-word." There is another farsighted solution that he does not mention.
The Massachusetts Supreme Judicial Court has a point that the state lacks a valid basis to discriminate about marriage versus civil unions on the basis of sexual orientation. But Starr rightly observes that feelings about marriage are deeply personal and steeped in tradition. The most sensible solution would grant legal equality by getting the state out of the business of distinguishing which civil unions should be called marriage. The state should recognize the rights and obligations of any two adults to form a civil union. End of story. Let people decide within their own circles whether to call it dating, going steady, or marriage.
There's precedent for this. Motherhood is a category that is arguably even more intimate and traditional than marriage. In the face of changing norms and reproductive technologies, the state got out of the business of deciding who should have that M-word. We're left scrambling with terms like "birth mother," "biological mother," and "primary caregiver." Sure, the state assigns child custody in a divorce or looks at DNA if babies get switched at the hospital. But not "mother."
In the long term, there would also be political benefit. The Massachusetts court has galvanized the religious right while driving a wedge between progressives who feel uncomfortable and those like myself whose instincts are to see this as a civil-rights issue. Starr is correct that the separate-is-unequal argument is harder to make with gay civil unions than with underfunded black schools. Getting the state out of the business of choosing who can use the M-word would turn the tables by ultimately splitting the libertarian and the Christian right. Ultimately it will be the only way to be both legally sound and politically savvy.
— Phineas Baxandall, John F. Kennedy School of Government, Harvard University
