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Jewish World Review Dec. 1, 2003 / 6 Kislev, 5764

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Culture and What Courts Can't Do | When Massachusetts' highest court asserted that same-sex marriage is a right protected by the state's constitution and entailed by recent U.S. Supreme Court reasoning about the U.S. Constitution, the president vowed to "do what is legally necessary to defend the sanctity of marriage." His vow implied two empirical premises for which conclusive evidence is lacking.

One is that law can do what the culture — immensely powerful and largely autonomous — has undone.

The other is that the social goods and individual virtues that marriage is supposed to buttress are best served by excluding same-sex couples from the culture of marriage, lest that culture be even more altered than it recently has been.

More than 40 percent of first marriages in the United States end in divorce. Cohabitation by unmarried heterosexual couples has risen rapidly, from 523,000 in 1970 to 4.9 million today. Procreation outside of marriage, although the seedbed of millions of individual tragedies and myriad social pathologies, has lost much of its stigma now that 33 percent of births — including about 60 percent of births to women younger than 25 — occur to unmarried mothers.

So the "sanctity" of American marriage is problematic. The crucial question is: Because the public meaning of marriage — the reason there are laws about it — is procreation and child rearing, what would be the consequences of altering the public meaning of marriage by including same-sex unions?

The rapid decline of a foundational social institution such as marriage in the past four decades and the attendant rise of social disorder usually correlate with some immense event, such as war.

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But the decline of marriage — and the rise of what are no longer called illegitimate births — has occurred during four decades of mostly peace and prosperity.

Some reasons for this are unclear; others seem impervious to legislative remedies. Therefore one cannot confidently assert the consequences of expanding or preemptively restricting the definition of marriage. But one near certainty is that establishing the right to same-sex marriage by judicial fiat rather than democratic persuasion will retard and perhaps reverse growing tolerance of homosexuality.

Society has steadily accommodated widespread adoption and child rearing by same-sex couples, the sympathetic portrayal of homosexuality in popular culture and the extension of employment and related benefits to same-sex couples (as one-third of Fortune 500 companies already do). But remember, until the Supreme Court ripped abortion policy away from legislatures — arenas of persuasion — America was more or less amicably adjusting conflicting views: In the five years before Roe v. Wade (1973), 16 states with 41 percent of America's population liberalized abortion laws. After courts put abortion policy — as they may yet put marriage law — largely beyond political debate in the states, bitterness became constant.

Amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.

Opponents of same-sex marriages argue inter alia that such marriages will weaken marriage and injure society's interest in stable family units. Proponents argue inter alia that giving same-sex couples the choice of marriage, with its presumption of permanence expressed in a network of responsibilities and privileges, will reform not only homosexual life but society as a whole by strengthening the virtues that marriage is supposed to sustain.

Evidence is inadequate to confirm either proposition. And no evidence suggests that either the Massachusetts court or the U.S. Supreme Court realizes how far the logic of their recent rulings goes. Taken together, the rulings point toward a constitutional right to, among other things, polygamy.

Last June the U.S. Supreme Court, overturning Texas's anti-sodomy laws, spoke of a need to respect "autonomy of the self . . . [in] certain intimate conduct." The Massachusetts court, taking its bearings from that ruling, cited "respect for individual autonomy" — emphasis added — when defining marriage simply as "the exclusive and permanent commitment of the married partners to one another."

The binary idea of marriage — friends and foes of gay marriage agree it is an institution involving couples — arose because there are two sexes. But if the meaning of marriage and the right to marital status is sufficiently defined with reference to "autonomy of the self . . . [in] certain intimate conduct," what principled, nonarbitrary ground is there for denying the right of marriage to, say, a threesome whose members insist that it is necessary for their self-fulfillment through intimacy?

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