Marriage Without Gender
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In January of 2004 the Massachusetts Supreme Judicial Court catapulted the issue of same-sex marriage onto the national front pages and into the presidential election by declaring – within Massachusetts and based on a distinctive provision in the Massachusetts constitution – that restricting the legal sanctions of marriage to mixed-gender couples was no longer acceptable. The ruling was notable for what it did not say as much as for what it did: it referred to the legal benefits and responsibilities of marriage, not to marriage itself, and it deferred to the legislature on the specific form that any remedy should take. That ambiguity and deference to legislative authority allowed mainstream conservatives, and even President Bush, to moderate their reaction and leave open the possibility for compromise rather than conflict. In early February the legislature, after deliberation and negotiation, requested an a priori ruling on whether a specific gender-neutral civil union proposal would meet the court’s requirements.
Alas, rather than honoring that legislative compromise by either blessing it or suggesting how it might be appropriately modified, the court undercut any possibility of further cooperation by wholly rescinding their earlier deference to cultural norms and legislative authority, declaring that nothing short of “marriage” itself met their criteria. While the original ruling comprised a solid majority of the court, the latter was decided by one vote and accompanied by a vigorous dissent, thus guaranteeing not only a political fight over marriage but a political fight over the role of the courts as well. The legislature quickly took up debate on a constitutional amendment at the state level to revoke the court’s jurisdiction over marriage, and discussion of such an amendment at the national level became part of the election year miasma.
This essay was sent to the Boston Globe for publication prior to the start of debate on the constitutional amendment, in hopes of influencing it. It was not published.
- 8 February 2004
There was once a word which described a particular joyous frame of mind – a state, according to Webster’s, of being “excited with merriment”; of “manifesting [and inspiring] sportiveness or delight”. It had synonyms, of course – words like “carefree”, “cheery”, “merry”, “lively”, “fun-loving” – but none of them alone encapsulated the entirety of the concept, the combination of internal ebullience with external inspiration, the combination of joy and exhilaration and passion, in the way that word did. Using that word one could communicate simply and directly the elemental nature of that experience, and the listener would immediately not only have an understanding of the outward form but an archetype of all that it might imply. The word was shorthand for a multitude of emotions and behavior; without it one could only fully describe the concept using an array of other almost-words to surround what it was and fence off what it was not.