Massachusetts Same-Sex Marriage Ruling: Kmiec vs. Hirsh

Introduction: Two Views on the Massachusetts Ruling

The opinion piece "Two Views on Court's Ruling" (2003) presents the differing perspectives of legal analysts Douglas W. Kmiec and Alan Hirsh regarding the Massachusetts Supreme Court's decision to extend the legal definition of marriage to include same-sex couples. In the section entitled "Judges Overstepped Role," Kmiec argues that the Massachusetts ruling "tears at the institution of family upon which all else depends." Despite his position as a constitutional law professor at Pepperdine University, Kmiec's stance is based on personal opinion and a questionable moral framework rather than on legal fact and precedent. Kmiec also argues that the decision was wrong because it was made by "judges who assume they are wiser than their fellow citizens."

Hirsh, however, finds that "legally speaking, the decision in this case is in fact conservative." In his piece "Ruling Is Conservative," Hirsh anticipates arguments like those of Kmiec, citing Marbury v. Madison to demonstrate that the Massachusetts Supreme Court did not overstep its role. Massachusetts had recently become the first state to allow same-sex couples to legally marry and enjoy the full benefits thereof. The decision was — and remains — immensely controversial, as is evident in the opinion articles of Kmiec and Hirsh. The Massachusetts Supreme Judicial Court decision also sparked a wave of ballot initiatives in other states during the 2004 federal election, all of which passed at the polls. Moreover, the Massachusetts decision was unique: although similar decisions had been reached in Alaska and Hawaii, both states subsequently amended their constitutions to reinstate bans on same-sex marriage. In 2000, California residents passed Proposition 22, which defined marriage as a union between one man and one woman. The views expressed by Kmiec and Hirsh in "Two Views on Court Ruling" reveal that the Massachusetts decision was a just one.

Kmiec's Claim That the Court Overstepped Its Role

Kmiec's opinion is flawed for several reasons. First, the Massachusetts Supreme Court did not overstep its boundaries through the ruling; as Hirsh points out, it was presenting valid and necessary legal challenges to existing laws. Hirsh states, "The suggestion that a legislature's determinations of public policy are immune from court challenge contradicts doctrine established by the Supreme Court 200 years ago in Marbury v. Madison." The Massachusetts Supreme Court may have acted boldly, but it did so justly and within the boundaries of the law. Moreover, as Hirsh notes, the Massachusetts ruling was based on "the most accepted tools of judicial reasoning — precedent and analogy."

In formulating their decision, the Massachusetts Supreme Court looked to many prior cases in which courts had defined and redefined marriage. For instance, in 1967, the Supreme Court case Loving v. Virginia reversed extant bans on interracial marriage: "The Court struck down laws banning interracial marriage, saying people should be allowed to choose their marriage partner free from the moral qualms of others." Hirsh notes that the Massachusetts decision essentially substituted "the same gender" for "another race," thereby establishing through analogy that the ban on same-sex marriage is unconstitutional. Furthermore, Hirsh notes that "the Massachusetts Supreme Court appropriately sought guidance from United States Supreme Court decisions, including one in June that struck down an anti-sodomy law in Texas." The Massachusetts decision, like earlier rulings regarding interracial marriage, upholds the equal protection clauses of the United States Constitution. As Hirsh puts it, "The Supreme Court redefined marriage because the definition in Virginia and many other states violated a cherished constitutional ideal: equal protection of the laws."

Equal Protection and the Analogy to Civil Rights History

Kmiec's second major logical fallacy in "Judges Overstepped Role" concerns his claim that equal protection of the laws, as set forth in the United States Constitution, does not apply to gay citizens. His argument is eerily reminiscent of the pre-abolition and pre-women's suffrage eras, during which Black Americans and all women were prevented from enjoying the full rights and privileges of citizenship. Kmiec writes, "Accepted principles of equality have long taught that only those similarly situated must be treated similarly." Slavery was supported by precisely this point of view. Slavery, and after abolition, segregation, were based on the "accepted principle" that Black Americans were not to be "similarly situated" to white Americans and that equal protection of the laws therefore did not apply to them. Similarly, the prohibition on women voting or holding office was grounded in the "accepted principle" that women were inferior — or at least not "similarly situated" to men — and were intellectually incapable of participating in civic life.

The so-called "accepted principles of equality" that Kmiec invokes were certainly not accepted by all persons. Even when accepted by the majority, these principles of "equality" were objectively and legally unjust, prejudicial, racist, and sexist. Evolving social and political forces around the turn of the twentieth century led to constitutional amendments expressly affirming that African Americans and women are in fact "similarly situated" to white men and therefore deserving of equal protection. Such amendments fundamentally altered the "accepted principles of equality" — today it would be unthinkable to prevent a woman from voting. The Massachusetts ruling on same-sex marriage simply but legally extends these "accepted principles of equality" to gay and lesbian citizens. In Massachusetts, gay couples must now be "treated similarly" because they are "similarly situated."

Conclusion: Rationality, Cultural Institutions, and Equal Rights

Kmiec states that defining marriage as a union between a man and a woman is based on "rational belief." Yet his article demonstrates that there is no rationality in that belief whatsoever. There is nothing rational about the claim that only heterosexual marriage makes "intimate sexual activity orderly and socially accountable," nor in the implication that gay citizens are not "similarly situated" to straight citizens. Kmiec refers to the Massachusetts decision as if it were a contagion he hopes can be prevented from "spreading nationwide." This statement passes a personal — perhaps religious — judgment and conflates legality with private moral conviction.

Kmiec states that marriage is a "cultural institution," which is true — but cultural institutions are not necessarily just or legal. Slavery, too, was a cultural institution, one whose supporters considered themselves fully rational in defending it. It was rational, after all, for plantation owners to extract free labor. Likewise, restricting the roles of men and women in the workplace and barring women from liberty and justice were once "cultural institutions." The government has no place enshrining cultural institutions in law when those institutions conflict with constitutional guarantees; its role is to uphold legal and political rights. The Massachusetts ruling, far from being a "mistake," was a legal and moral advance. The 2004 election results demonstrated that much of the nation still had a long way to go before equal rights would be extended to all of its citizens.