The Reading

from the majority decision of the

Massachusetts Supreme Judicial Court

in the case of

Hillary Goodridge & others vs.

Department of Public Health

        Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children. Marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same sex couples.

        We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. . . .

        The plaintiffs are fourteen individuals from five Massachusetts counties. As of April 11, 2001, the date they filed their complaint, the plaintiffs Gloria Bailey, sixty years old, and Linda Davies, fifty-five years old, had been in a committed relationship for thirty years; the plaintiffs Maureen Brodoff, forty-nine years old, and Ellen Wade, fifty-two years old, had been in a committed relationship for twenty years and lived with their twelve year old daughter; the plaintiffs Hilary Goodridge, forty-four years old, and Julie Goodridge, forty-three years old, had been in a committed relationship for thirteen years and lived with their five year old daughter; the plaintiffs Gary Chalmers, thirty-five years old, and Richard Linnell, thirty-seven years old, had been in a committed relationship for thirteen years and lived with their eight year old daughter and Richard’s mother; the plaintiffs Heidi Norton, thirty-six years old, and Gina Smith, thirty-six years old, had been in a committed relationship for eleven years and lived with their two sons, ages five years and one year; the plaintiffs Michael Horgan, forty-one years old and David Balmelli, forty-one years old, had been in a committed relationship for seven years; and the plaintiffs David Wilson, fifty-seven years old, and Robert Compton, fifty-one years old, had been in committed relationship for four years and had cared for David’s mother in their home after a serious illness until she died.

        The plaintiffs include business executives, lawyers, an investment banker, educators, therapists, and a computer engineer. Many are active in church, community, and school groups. [note: Four of the couples are Unitarian Universalists.] They have employed such legal means as are available to them – for example, joint adoption, powers of attorney, and joint ownership of real property – to secure aspects of their relationships. Each plaintiff attests a desire to marry his or her partner in order to affirm publicly their commitment to each other and to secure the legal protections and benefits afforded to married couples and their children.

        [The decision concludes:]

        The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or whoa re believed to be) homosexual. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.

The Sermon

[the “other”]

        There are a lot of terrible challenges we face in the world today. There are millions of people in the world who are malnourished, even starving, with no shelter, and little hope of anything better. There is, not unrelated to that hopelessness, terrorism which threatens violence anywhere at any time. There is war. There is tyranny.

        In America, we also have crises in hunger, in education, in security. The family is in jeopardy: we have a high divorce rate; we have appalling rates of spousal abuse and abuse of children. In the face of all of this, wouldn’t you think that most people would have better things to worry about than the fear that couples of the same sex may be finding happiness together. And yet, for many leaders on the religious right, this is the supreme threat that must be addressed, the one into which they are pouring tons of energy and big dollars. The reason is, of course, that they know there is an audience out there that responds passionately to the homosexual threat. It always helps group solidarity to have an evil “other” out there to fear.

        Overall, surveys indicate that Americans oppose marriage between same sex partners by 2-1. For Evangelicals, the ratio is 8-1 opposed, while for mainline Protestants and Catholics, the number is more like 5-4. The reality is that homosexuality is far more frequently addressed from Evangelical pulpits than others. According to the Pew Center on Religion and Public Life:

The clergy in evangelical churches focus considerably more attention on homosexuality and address it far more negatively than do ministers and priests in other denominations. Two thirds of evangelical Protestants who attend church services at least once a month say their ministers speak out on homosexual issues, compared to only about half of Catholics and just a third of mainline Protestants.

[Jesus]

What is fascinating about this is that nowhere in the Bible is Jesus quoted as having addressed homosexuality in any way, while it is clear that he clearly condemned divorce, which the Evangelical clergy for the most part ignore. He also is alleged to have said:

everyone who has looked at a woman with lust has already committed adultery in his heart. If your right eye causes you to sin, tear it out and throw it away; it is better for you to lose one of your members than for your whole body to be thrown into hell. . .

        I do not see many evangelical clergy missing their right eyes, and you will not convince me that they have never looked at a woman with lust.

        It is true that Jesus is quoted as having said:

from the beginning of creation God made them male and female. For this reason a man shall leave his father and mother and be joined to his wife and the two shall become one flesh. So they are no longer two but one flesh. Therefore what God has joined together, let no one separate.

        No one would suggest that heterosexual unions have not always been the basic familial relationship, or would anyone deny that they are the basis of species survival. That is not the question. Given that the Hebrew Bible does condemn homosexual relations, it is of significance that Jesus did not make any mention of them. Advocating heterosexual marriage is not the same as condemning same sex marriage. Nonetheless, the Bible is frequently cited as the reason for opposing same sex marriages.

[Christianity on marriage]

        The reality is that the Christian Church, for some time, denigrated marriage in general. The ideal that the church taught was celibacy - for all. Marriage was only the alternative for those too weak to maintain the ideal; it was second best.

        Back in 1972, when I had my first sabbatical, I was earning my diploma in psychiatric social work at the University of Southampton in England. One of the members of the congregation in Bedford was getting married to a Englishman in Bournemouth, and I was invited to participate in the ceremony. I began with a reading about how marriage had evolved among people as a way in which we find satisfaction in intimacy. The Church of England minister followed my words with his reading about how marriage was created by God primarily as a way of keeping us from fornicating, and to populate the earth.

        Dave Lantz, just this morning, gave me an e-mail he received from his brother-in-law, which is relevant to our subject. It purports to be from a recent letter to the editor in Tennessee:

The actions taken by the New Hampshire Episcopalians (Inducting a Gay Bishop) are an affront to Christians everywhere. I am just thankful that the church’s founder, Henry VIII, and his wife Jane Seymour, and his wife Anne of Cleves, and his wife Katherine Howard, and his wife Catherine Parr are no longer here to suffer through this assault on traditional Christian marriage.

                 [I can’t figure out why two of his wives were left out.]

        Christianity does not have a long history of a romantic view of marriage. Marriage has been, in our patriarchal society, a chattel relationship in which the female has been dominated by– in truth, owned by – the male. Women in this culture have not long had the right to own property or to inherit property from their husbands. It has been their traditional duty to obey their husbands and bear children. If the Family Research Council [the leading opponents of homosexuality] had its way, we would return to those “good old days” when “men were men, and women knew their place.”

[threats to marriage]

        The spiritual ancestors of those who predict that same sex marriage will destroy the concept of marriage, predicted that giving women the vote would also destroy marriage – and many of their descendants would agree that it has. The right of women to divorce men who abused them is also seen by them as a detriment to the institution of marriage. After all, Jesus only said that men could divorce, and then only for unchastity on the part of their wives.

        Marriage in the beginning of the 21^st century is very different from marriage in the beginning of the 20^th. Most of us would say that it has changed for the better. Many of those in the Evangelical churches would view those very same changes as being for the worse.

[pleasure]

        The fundamental issue regarding same sex marriage is the issue of the nature and place of pleasure in human sexuality. There are people who firmly believe that the pleasure of sexuality is justified only when it is centered on procreation. The Family Research Council acknowledges that some heterosexual couples do not intend to have children, but they say their marriages are legitimate anyhow because at least pregnancy is a possibility - they “might change their minds. Birth control might fail. . . [W]e still recognize childless marriages because it would be an invasion of a heterosexual couple’s privacy to require that they prove their intent or ability to bear children.”

        The growing acceptance of homosexuality is a sign in their eyes of a belief that sexual pleasure should not be restricted in any way. They say:

The entire “gay liberation” movement has been but a part of the larger sexual liberation movement whose fundamental tenet is tha5t anybody should be able to have sex with anybody they want any time they want.

        One need not go very far back in time to the point at which there were laws which prohibited people of different races from marrying – in fact it was only in 1948 that California became the first state in which such laws were rejected – it was not until 1967 that the US Supreme Court struck them down in the remaining states. Those who opposed interracial marriage were just as convinced in their evil,, and just as passionate in their opposition, as are the opponents of same sex marriage today. In fact, at our Association’s General Assembly in Salt Lake City in 1999, the Mormon representative on a panel of clergy discussing marriage said that his church still had not resolved the problem of “inter-species marriage” by which he said he meant marriage between whites and blacks.

        There are two dimensions of this issue: the practical and the symbolic.

[practical issues]

        The practical is pointed to by the benefits that our laws provide to married couples. Our society promotes marriage. Even the defendants in the Massachusetts case, the Department of Public health, acknowledged that there are “hundreds of statutes” related to marriage and to marital benefits. These include joint tax filing, tenancy in the entirety, automatic rights of inheritance, evidentiary rights, qualification for bereavement leave, hospital visitation, family members preference for making medical decisions, and a variety of rights regarding child custody.

        The Family Research Council points out that many, although not all, of these can be addressed through legal means other than marriage. The kind of “civil union” that Vermont has enacted addresses many, but not all of these. Needless to say, the Family Research Council finds even that recognition offensive because they recognize it as a step along the path to equality.

[the symbolic dimension]

        There are many moderates who believe that it is that process, recognition of “civil union,” that is the answer. Most of the Democratic candidates for president affirm that option – wanting to avoid offending those who see same-sex marriage as a threat. Only Al Sharpton, Dennis Kucinich, and Carol Mosely Braun support same sex marriage.

        In fact, the handbook for “Celebrations of Commitment” which our congregation offers to couples has noted:

While our nation and state deny lesbian and gay couples the option of legal marriage, this congregation and other congregations in the Unitarian Universalist Association believe that loving, committed, mutually supportive relationships between any two individuals are to be valued and supported. Toward this end, the ministers of this church perform ceremonies of holy union for lesbian and gay couples. Although services of union do no result in any legal privileges or responsibilities, they serve lesbian and gay couples desire to publicly affirm their commitment to one another and to celebrate that commitment with family and friends. After the ceremony, couples are presented with a certificate which affirms that they have been joined in holy union. The procedure for setting up a service of holy union is the same as for weddings. The service selections in this booklet are equally appropriate for union ceremonies or weddings.

        I began my preparation for this sermon several weeks ago, convinced that this was the appropriate position to take. Encountering the reasoning offered by Marvin Ellison in his book, Same Sex Marriage: A Christian Ethical Analysis[Pilgrim Press, 2004], I have come to read that paragraph differently. The difference has to do with the second dimension of marriage, after the legal one: it is recognition. Ellison quotes Jonathan Rauch who wrote, “To be prohibited from taking a spouse is not a minor inconvenience. It is a lacerating deprivation.” Ellison observes:

Marriage advocates, in noting the vibrancy of same sex relationships in their racial, economic, and cultural diversity, contend that LBGT [lesbian, bisexual, gay and transsexual] people have every right to use the same vocabulary that non-gays use to speak of love, family, and commitment. Legal activist Evan Wolfson writes, “It is the vocabulary of love, equality, and inclusion.”

Ellison quotes a GLAD (Gay and Lesbian Advocates and Defenders) publication which offers three reasons that marriage matters.

First, marriage is “a major building block for strong families and communities.” Second, marriage is the access point for hundreds of protections and benefits from state and federal governments. Third, marriage is a basic right of citizenship, and to be denied the right to marry means that “gay men and lesbians will continue to fall short of the status of full citizenship, marking them and their children with a stamp of inferiority.”

He also quotes Robert Williams, who asserts that separate rituals for blessing same-sex unions means:

We would still have marriage” for some people and something else for others. The implication is that the “something else” is something less . . The notion of separate but equal inevitably creates unequal institutions.

        I find that reasoning very persuasive. I hereby repent of having advocated, through the language I have used, that same-sex couples should settle for something second-class in comparison to the recognition given to heterosexual couples. The definition of marriage as something only for differently sexed couples is no more sacred than that definition including only those couples in which the female agrees to obey, to be subservient to the male, or those couples who are of the same race, both of which were historically seen as essential elements.

[judicial activism]

         The decision of the Massachusetts court has been attacked as yet another example of judicial activism, like Brown v. Board of Education, and Roe v. Wade. And it is true. Giant steps toward racial equality stemmed from the Supreme Court’s willingness to bite the bullet in the Brown decision on “separate but equal” schools. It didn’t “solve” the problem, but it held our feet to the fire. Likewise the decision in Roe accelerated the acceptance of abortion, even though it motivated some resistance. In both cases, courts looking at the ideals articulated by our constitution, found contemporary practice lacking. So too, does the Massachusetts decision.

        The Massachusetts court has challenged the legislature to come up with means of implementing its decision. Opponents hope that an amendment to the Massachusetts constitution will obliterate the decision, even though it would take years to implement. Interestingly, the AP reports that two polls taken since the decision predicts that the voters in Massachusetts would reject such an amendment - a majority support the court’s decision.

        As I noted earlier, that is not the position of a majority of Americans, some of whom were shocked when the US Supreme Court ruled in June that sodomy laws outlawing homosexual love-making were unconstitutional. Justice Scalia, who of course opposed that decision, predicted that same-sex marriage would be next. A constitutional amendment was introduced in the US House of Representatives that would define marriage only as the union of a man and a woman. In response to the Massachusetts decision, a similar amendment was introduced in the US Senate, just before the Thanksgiving recess. This would be the first amendment designed to further the cause of discrimination against some Americans

[what will we do?]

        There was debate back when this congregation voted to declare itself one that intentionally welcomed people who were gay, lesbian, bisexual and transgendered. We lost a couple of members in the process. What was most moving to me was the way in which one member, who was opposed to the concept, became one of its staunchest advocates after hearing from members of the gay and lesbian community how cruel was the discrimination which they experienced in this community. He decided that this was an issue on which we must take a stand.

        I believe this is the next step. We need to engage in the public debate over the full recognition of same sex couples. Sometime in the past couple of months, I read a review of the tv show, Queer Eye for the Straight Guy, which suggested that what was needed was for straight folk not only to be entertained by the openly queer guys, but to be willing to stand up for them and their equality. I suspect that most of us will be on the edge of conversations in the coming months about the appropriateness or lack thereof, of the recognition of marriage between people of the same sex. We will have a choice whether to speak out, or to remain silent in the face of disagreement. To remain silent will be to support discrimination. To speak out requires courage. May we find the strength to speak from our heart and from our convictions on behalf of those who are the victims of discrimination.