It's not clear who should have been celebrating when the Massachusetts Supreme Judicial Court ruled in early February that the state has to provide gay couples the right to marry and nothing less. The decision barred the Massachusetts legislature from adopting a law authorizing "civil unions" in which "spouses" would have "all the same benefits, protections, rights and responsibilities under law as are granted to spouses in a marriage." Not enough, the judges declared, guaranteeing that Massachusetts legislators would put before the state's voters a constitutional amendment reversing the court's decision and galvanizing conservatives across the country to add a ban on gay marriage to the federal constitution.
Meanwhile, New Jersey enacted a law allowing same-sex (and other) couples to enter into "domestic partnerships" that carry most of the rights and obligations of a marriage. The New Jersey statute isn't actually as broad as the Massachusetts civil-union legislation would have been. But it passed with little opposition, nobody is threatening to overturn it, and it represents a great advance for equal rights. Nothing prevents these provisions for gay couples from being expanded, perhaps eventually extending to same-sex marriage -- that is, as long as no amendment to the contrary gets adopted nationally.
American public attitudes toward gays and same-sex relationships have undergone a transformation over the past decade, and they continue to evolve. At this point, however, surveys show substantial majorities of Americans opposed to gay marriage, with the public closely divided over civil unions that would equalize rights to pensions, hospitalize visitations, and other benefits. Changing the terms from "marriage" to "civil unions" is more than a cosmetic touch; it shifts public discussion from a vocabulary of faith to a vocabulary of fairness. By ruling out civil unions, the Massachusetts judges prevented defenders of equal legal rights for gays from framing the issue in terms that maximize their chances of gaining majority support.
The contrasting developments in Massachusetts and New Jersey illustrate the risks of turning to the courts to leapfrog public opinion in a democracy. Even though courts may be called "supreme," the people can overrule them, and on same-sex marriage they already have. After supreme courts in Alaska and Hawaii approved gay marriage, constitutional amendments in those states overturned their decisions. In contrast, Vermont's highest court gave the legislature the option of authorizing civil unions, and that legislation -- signed by Howard Dean -- seems likely to survive.
What was wrong with the Massachusetts decision, however, was not simply that it was blind to the likely political reaction. It was also unpersuasive. In its February "Answer" to the legislature, the court determined that civil unions would carry a stigma of inferiority -- a judgment about their symbolic meaning -- without any evidence about how civil unions would have developed in practice. States create legal rights and obligations, and civil unions would have equalized those. The administrative categories of government, however, are only one of many elements -- and not necessarily the most powerful -- in shaping social understandings. People create their own symbolism through ceremonies such as weddings and other practices, and nothing in the law authorizing civil unions would have prevented gays from investing the unions with all the symbolism of a marriage.
The Massachusetts judges and religious conservatives are joined in a kind of antagonistic cooperation. They agree that constitutional law ought to settle the question of same-sex marriage and are forcing Americans to deal with the issue in those terms. But the case for leaving controversies to politics and legislation, rather than fixing them in constitutional principle, is especially strong where public sentiment is fluid and highly charged. Legislation has the virtue of allowing for negotiation among elected representatives; a legislative compromise may be incremental, the losing side is more likely to accept the outcome, and the result may be both more stable and legitimate in the eyes of the public. The wide acceptance of New Jersey's domestic-partnership law exemplifies these advantages.
When reformers get into the habit of relying on lawyers and judges, they not only risk a self-defeating political reaction but may also lose the facility for building a majoritarian politics. That is surely one of the things that went wrong with American liberalism in the mid-20th century, and it would be a disaster to repeat that mistake. The Massachusetts court decision couldn't have come at a worse time, reinforcing the president's argument for conservative judges and handing Republicans an election issue. If an amendment to the U.S. Constitution to ban gay marriage succeeds, the Massachusetts decision will go down as one of the great examples of judicial overreach in our history.
Note: The online version of this column includes language that was cut from theprint magazine because of limited space when it went to press on February 10. No other changes were made.
Read an afterword to this column.
Paul Starr is a co-editor of the Prospect.
