The Right Coast

December 25, 2003
Tushnet on Same Sex Marriage
By Michael Rappaport

Eve Tushnet has an interesting piece arguing against same sex marriage and the Massachusetts Supreme Court decision holding that the state constitution requires that same sex marriage be recognized in the state. The logic of her argument against same sex marriage -- that marriage is about protecting children -- seems to suggest that it is problematic for gay couples to adopt or have children. This is a premise that is often omitted from social conservative arguments against same sex marriage, but would appear to be an important part of that argument.

Concerning the Massachusetts Supreme Court decision, Tushnet has this to say:
    ...The Massachusetts court is saying to citizens, "You all go ahead and vote for the laws. Then we'll tell you what you really voted for. Don't expect it to look much like what you thought you agreed to." The rule of law requires that laws be predictable and stable--that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon. The Massachusetts court (like the Supreme Court in Roe v. Wade) has ignored this principle.

    The funny thing is, this bait-and-switch approach to judging may be turned against the Goodridge decision itself in the future. As UCLA law professor Eugene Volokh (who supports same-sex marriage) has pointed out, the language the majority used in its decision gives no good reason to bar polygamy or adult incestuous marriages. If marriage is simply about commitment, well, obviously we can make commitments to more than one person. And we can make commitments to people who are already members of our families - for example, siblings. Why should these commitments not be recognized in law as marriages?
The point in her first paragraph seems undeniable. The point in her second paragraph, however, seems naively academic. If the judges were motivated by consistency, then Tushnet might be right. But they are not: they are motivated by the belief 1) that same sex marriage should be allowed and 2) it is discriminatory for such marriages not to be allowed. It may be discriminatory that polygamy is prohibited, but the judges do not think it should be allowed (nor is there a strong political movement in favor of it), and therefore one should have no worry that it will be protected.