Gay Marriage in Massachusetts

TERENCE SMITH:

Last month, the Massachusetts Supreme Court ruled 4-3 that the state's ban on same-sex marriage was unconstitutional. The court ordered the state legislature to come up with a solution within 180 days. The ruling intensified a national debate, prompting a proposed constitutional amendment in the U.S. Senate defining marriage as a union between a man and a woman.

For a sampling of editorial opinion from across the country on this issue, we are joined by four editorial page editors: John Diaz of the San Francisco Chronicle; Bruce Dold of the Chicago Tribune; Michael Ryan of the Augusta Chronicle in Georgia; and Virginia Buckingham of the Boston Herald. Welcome to you all.

John Diaz, your editorial applauded the Massachusetts Supreme Court ruling. I wonder why. What was your reasoning that caused you to take that position?

JOHN DIAZ:

Well, Terry, I think the Massachusetts Supreme Court was really doing what a court is supposed to be doing, and that's really looking at the legal foundations behind the discrimination that there was in the treatment of same-sex and heterosexual couples in Massachusetts.

I really think at this point that gay marriage is inevitable, that the legal arguments for this type of discrimination are unsustainable and you look no further than the U.S. Supreme Court, which used very similar reasoning in striking down the Texas sodomy laws, namely saying that you cannot draw a distinction — the state is not in a position to draw a distinction between heterosexual and homosexual conduct as well as the rights and responsibilities they have.

TERENCE SMITH:

Virginia Buckingham in the Boston Herald you took the opposite tact — why?

VIRGINIA BUCKINGHAM:

The court clearly oversteps its bounds here. This is a legislative matter that is being debated, has been debated and there is no consensus and it's in the laboratories of democracy that this issue needs to be decided and now they have sparked a political furor and unfortunately I think we're going to end up with a constitutional amendment at the state level, potentially at the federal level because of the court overstepping its bounds.

TERENCE SMITH:

Bruce Dold what do you think of that argument in essence that the court went too far too fast?

BRUCE DOLD:

I think if you read the opinions, the majority, and this one barely crept over the finish line if you look at that time, three Justices signed one opinion. The fourth Justice found a narrower view of it although he signed on to the remedy. The majority I thought was on pretty strong ground on saying that the state does have an obligation to provide equal protection under the law in matters of inheritance and matters — in all of the matters that come under the law.

Where they seemed to get adventurous was in telling the legislature, the only remedy for this is to redefine marriage. Even the majority acknowledged they were saying that this is a fundamental change in something that had been recognized by societies for centuries. The dissenters I thought had a pretty good argument that — you read the dissents; you don't find any argument, any criticism of gay relationships. They take a traditional conservative view that the court should not be stepping into this, that the courts have a narrow definition of what they're supposed to do; and in this case they're trampling all over what the legislature's role is supposed to be.

TERENCE SMITH:

Michael Ryan, your paper, the Augusta Chronicle, is firmly against gay marriage even against civil unions. I wonder what you think of the arguments that John and Bruce have just made in the opposite direction.

MICHAEL RYAN:

Well, we think the court overstepped its bounds like Virginia said. Even the court opinion itself acknowledges the fact that they're ignoring not only the state law and the legislative intent behind it, but hundreds of years of common law.

We think it erred in five areas. First of all it basically said the government has no business regulating marriage and that's just silly. Second of all it's the judicial equivalent of Madonna kissing women on MTV. It's trying legitimize a lifestyle that most Americans oppose. Third it could ironically hurt the gay cause by attempting to force it on the public unwilling. Fourth, you're looking at an uncharted path here, the court's opinion talks about the great benefits of marriage but at the same time, its own ruling is going to affect marriage in ways nobody understands. The fifth one is that we're just talking about a judicial takeover of American life. Judges all across the country are overturning laws, overturning public votes and substituting their own judgments for that of ours and the elected representatives we send to office. Despite your opinion on gay marriage, that should bother you.

TERENCE SMITH:

John Diaz, I wonder what you think of Michael Ryan's five points, particularly the last on judicial activism.

JOHN DIAZ:

Well, I think ultimately first of all that this will be decided by the courts because really when you talk about equal treatment, equal protection, civil rights, that it really ought not to be something that's subject to popular whim of the day.

Certainly societal attitudes are changing. This issue has gained a great deal of velocity. As recently as 1989 in this city San Francisco voters rejected a domestic partners ordinance. Now California as of 2005 is going to basically give all rights of marriage to domestic partners with the exception really of joint tax returns. … But I think the comparison that we draw here is with civil rights and segregation, where you can't just look at history and what society and culture say, but is there really a legal foundation for this kind of discrimination?

TERENCE SMITH:

Virginia Buckingham, what about that argument John makes, that the courts are the right place to decide matters such this?

VIRGINIA BUCKINGHAM:

There is not even a comparison to be made between this striking down of discriminatory laws banning interracial marriages and gay marriages. This isn't about discrimination. SJC [Supreme Judicial Court] in Massachusetts basically said this is about reformulating the basic definition of marriage and that's where they went too far. That is clearly a matter for legislatures, and judges aren't legislators. They're not chosen by the people to represent them in a deliberative body.

And I think the people ultimately are going to have the say here. A constitutional amendment is likely going to be on the ballot in Massachusetts, potentially across the country as well and that's as it should be. There should be a consensus of the people on where this question ultimately should come out.

And at this point there is no moral consensus on whether same-sex marriage is right or wrong. There is more of a consensus whether benefits and legal protection should be afforded to same sex couples. I think polling data would show you most Americans are comfortable with that. Again, I think by pushing it to the next level where people aren't comfortable at this point really does risk a backlash.

TERENCE SMITH:

Bruce Dold the polls are interesting. A recent one by the Pew Research Center says that nearly 60 percent of the respondents that they talked to oppose gay marriage. What is does that tell you about this argument where it stands in societal terms?

BRUCE DOLD:

I'll give you a little snapshot of the politics on this. I'm at a newspaper that is traditionally conservative — we've supported civil unions; we have also endorsed legislation to prohibit discrimination based on sexual orientation. I'm in a state, Illinois, the Democrat who's a governor, the Democrats run the House, the Democrats run Senate, they couldn't get a vote this year on the discrimination legislation. And civil unions that's not even on the table. That's not even under discussion here.

So, you know, I do think there is going to be a tremendous and unfortunate backlash to this kind of ruling. The comparison is often made to when the Supreme Court struck down interracial marriage in 1967. I think there is a big difference there. At that time there were only 15 states that prohibited interracial marriage. That's where the country was going. There isn't a single state that has endorsed a gay or same-sex marriage here. The great majority of states have blocked it. So this isn't a case where the court is ahead of the parade. It's about three blocks ahead of the parade and I do think you're going to see a huge backlash.

TERENCE SMITH:

Michael Ryan, Virginia mentioned the idea of a constitutional amendment on this either at the state or federal level. Is that necessary?

MICHAEL RYAN:

Well, it may be. You would think the framers would be aghast at that notion, but it appears to be and if we get this continued judicial activism it may be the only way to get around it.

It strikes me — the key to this whole thing is whether this is a legislative duty. And the question there is, is there a compelling state interest in regulating marriage? Well, there seems to be a compelling interest in getting God out of the Pledge of Allegiance. There seems to be a compelling interest in getting the Ten Commandments out of public view; there seems to be a compelling interest in getting scholarships away from theology students, but there is no compelling interest in procreation furthering the species. I don't think that's quite the case.

TERENCE SMITH:

John Diaz I wonder what you think of that and really who should make this decision, courts, legislatures, religious organizations, who should decide what marriage is or should be?

JOHN DIAZ:

Well, I think fundamentally it does go to a constitutional question. In fact, in the dissent in the Texas sodomy case Justice Scalia basically laid out one of the reasons that he was in dissent was he saw when the state no longer is no longer may making the moral distinctions — that it then becomes — it takes away the foundation for other types of discrimination.

I really think in response to the previous comments that the framer would be aghast at the idea of a constitutional amendment to restrict the rights of gays and lesbians to marry. If you look at our history of this country, our Constitution and its amendments have really been to either preserve or expand the rights of Americans, not to restrict them. Of course prohibition, our last attempt to constitutionally regulate morality, was the last example and I think a pretty example of why it's perilous territory.

TERENCE SMITH:

Michael Ryan, going back to you on that point of the framers being aghast, that's not the way you meant it?

MICHAEL RYAN:

I think they would be surprised that they wouldn't want their Constitution tinkered with to begin with, but they would be surprised we need do it in this case. It seems to me that marriage being defined as a union between a man and woman would have been as obvious on the wigs on their heads.

TERENCE SMITH:

Virginia Buckingham, this is now in the lap of the Massachusetts state legislature, and they're under an order to come up with something in six months or less. What should they do?

VIRGINIA BUCKINGHAM:

Well, they're all confused and rightly so. I mean, they're looking at this gigantic court decision that's very ambiguous about what they actually need to do. The attorney general and governor both said they think the language allows a civil union type structure to be put forward and passed by the legislature. And that may be where they go.

The speaker of the house said today that maybe the legislature will do nothing. Just throw back to the courts and let the court, again, be more direct about what they're actually ordering. For sure it's going to be the hot political issue in Massachusetts around the country for the foreseeable future.

TERENCE SMITH:

Well let's ask Bruce Dold around the country or at least Middle West is it a hot political issue or is it likely to become one?

BRUCE DOLD:

I think it's going to be a very tough issue for Democrats because I think they recognize that Republicans are largely of one mind on this and Democrats are not, they're split right down the middle. And, in fact, you have Democratic presidential candidates that are against this and a Republican president who's very much against it. So the Democrats end up kind of waffling trying to appease two constituencies; one constituencies that is very much opposed to same-sex marriage and another one that's sort of for it. So, yes, I think it's — it's the kind of issue that becomes a wedge issue, that becomes an issue that gets you away from fundamental questions of the economy and national security and winds up being a tough one — really a loser for Democrats.

TERENCE SMITH:

Well it's clearly one that isn't going away. Thank you, all four for you views and your papers' views very much.