Tomorrow will be the day that the first legally recognized and legally equal gay marriages take place. What a great day! It’s been a very controversial issue, of course, and lots of people who should know better have weighed in on the issue with lots of ignorant comments. For example, the Massachusetts policy does not mean that gay marriage has been federalized (Massachusetts law extends only to Massachusetts, just as Louisiana’s Covenant Marriage Law doesn’t have to be implemented in Nebraska). And importantly, the Massachusetts court decision is not based simply on an interpretation of the U.S. Constitution, but on the Constitution of the Commonwealth of Massachusetts, Article VI of which states:
“No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.”
Article CVI states:
“All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”
It’s hardly a stretch to interpret Article VI as forbidding making marriage available to heterosexual couples but denying it to homosexual couples. Article CVI could also be so interpreted, but doing so is a bit strained, whereas Article VI is quite clearly relevant to the issue of same-sex marriage. In the state of Massachusetts, on the grounds of the constitutional prohibition of “particular or exclusive privileges,” homosexual couples will be allowed to enter into the same legal relationship as heterosexual couples. And in so doing, they will be enabled to engage in “seeking and obtaining their safety and happiness.”
A discussion of the issue will take place at the Cato Institute on Monday, May 17. You can watch it or listen to it live or check it out on the Cato archives later. It will feature Jonathan Rauch, author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, and Michael S. Greve of the American Enterprise Institute and Genevieve Wood of the Family Research Council.