Notes From D. R.

This November marks the fifth anniversary of one of the most controversial rulings in Massachusetts history: Goodridge vs. Department of Public Health, the Supreme Judicial Court ruling which held that the state Constitution permitted same-sex couples to have marital rights equal to those of heterosexual couples.

The ruling set off months of acrimony, and made Massachusetts the Baghdad of the American culture war. The controversy over same-sex marriage has largely settled down, but those who were fiercely opposed to the ruling are still chagrined by the initial decision.

I opposed the Goodridge ruling not because I felt society would crumble into ashes if same-sex couples were granted marriage rights, but because I felt the court had overstepped its bounds. I had no quarrel with previous rulings on gay and lesbian rights, such as the 1999 Baker v. Vermont ruling and the 2003 Lawrence v. Texas Supreme Court case. However, I regarded Goodridge as the new Roe v. Wade—a judicial overreach that would needlessly divide the country and raise partisanship to intolerable levels.

Five years later, it’s not clear that Goodridge has had a Roe-like effect. To be sure, the ruling played a role in John Kerry’s loss of the 2004 election to President Bush, but it appears as though the national anger over the ruling has gradually ebbed since then.

Why has same-sex marriage subsided as a major cultural issue in America? Perhaps people are less worked up now about same-sex marriage because of the fallout from another culture-war flashpoint—the 2005 Terri Schiavo drama. America gave a collective thumbs-down to the social conservatives who sought to preserve Schiavo’s life, and it can be argued that many of the folks who objected to the social right’s actions in the Schiavo matter decided to reject the cultural-conservative vision on other matters—like the definition of marriage.

Older Americans are still generally uneasy about same-sex marriage, but for Americans under the age of 35, the issue is largely settled; there is little opposition to “marriage equality” in this age bracket. It’s difficult to envision these Americans—who have spent their entire lives in a social atmosphere marked by a libertarian view of same-sex relationships—suddenly, or even gradually, altering their views on same-sex marriage. Thus, within 25 to 30 years, it’s quite likely that a majority of Americans will be in favor of “marriage equality.”

Despite my opposition to the Goodridge ruling, it’s hard to see how the social tide can be turned back. The gay rights movement is to under-35 Americans what the civil rights movement was to baby boomers—a chance to fix historical wrongs. Matthew Shepard’s death galvanized these young Americans, just as Emmett Till’s murder shocked the conscience of those who came of age in the 1950s and 1960s. For those under the age of 35, Goodridge is as profound—and as positive—as Brown v. Board of Education was for an earlier generation.

In a perfect world, Goodridge would not have been a court ruling but a legislative decision—one as earth-shaking as the legislative decisions that gave birth to the 1964 Civil Rights Act. We don’t live in a perfect world, but there’s no way around the fact that for many Americans, the ruling was a way to make society a little less imperfect.

Has the sky fallen as a result of the ruling? No, but that should not have been the argument in the first place. Opposition to Goodridge should have always been predicated on legal, not social, grounds.  In a “progressive” state such as Massachusetts, the social arguments against same-sex marriage were going to fall on deaf ears: those who claimed that the traditional family would be imperiled by the ruling should have known that their assertions would be dismissed as paranoid proclamations. One ought not to sell things that others will not buy.

Am I still bothered by Goodridge? As a supporter of judicial restraint, I don’t think I can ever fully endorse the court’s decision. However, I must concede that the spirit of the ruling is in accord with the previous rulings I supported. The four judges who ruled that the state’s Constitution granted same-sex couples the freedom to marry did so out of a sincere desire to render null and void anything that smacked of second-class citizenship in the Commonwealth. One can disagree with the Court’s decision—but how can one attack the Court’s aims?