An Unfinished Revolution


By Leonard Fein

Published March 19, 2004, issue of March 19, 2004.
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The reputation of politicians these days is not exactly in good health. Some of us view politicians — the more so those at the state and local level — cynically all the time, and all of us view them cynically some of the time. But like the waters of the Red Sea parting, the debate in the Massachusetts state legislature sitting in constitutional convention on the matter of same-sex marriage revealed dry land, the soaking waters of cynicism held back. The debate was thoughtful, dignified and, above all, a testament to how very far we have come as a society in a very short time.

Just yesterday, it seemed, support for “civil unions” — that is, for the rights of gay couples to enjoy full legal protection save only the right to marry — was considered radical. Yet today, here in the Commonwealth of Massachusetts, the debate has shifted dramatically forward: Civil union is seen as the fallback position if the legislature fails to follow the decision of the state’s Supreme Judicial Court, which held that the state constitution, unless amended, requires that gay couples be allowed to marry.

The president of the United States would have us believe that this mischief is the product of “some activist judges.” Should the constitutional convention fail to propose a constitutional amendment, the president will have to amend his accusation to include “activist state legislators” — or, more likely, simply dismiss Massachusetts (along with, no doubt, its junior senator, John F. Kerry) as outside the American mainstream.

Rarely has a non-issue become so controversial an issue as has gay marriage. The assertion that the special status of marriage has to do with its procreative possibilities is easily shown to be a piece of nonsense: No penalties are imposed on childless couples, and we even allow people on their deathbeds to marry. The claim that the marriage of a man and a woman is, in some fundamental sense, a sacred act is belied by the statistic that half such marriages end in divorce. The argument that marriage is hallowed by time, that we dare not tinker with so venerable an institution, is a fraud, the ban on interracial marriages having been so recently declared unconstitutional, the treatment of women as their husbands’ chattel still the law in many nations, the custom in others. Plainly, marriage is an evolving institution.

Yet, for all the unprincipled posturing and for all the utterly sincere opposition, the fact is that the most unlikely people now tumble over each other to assure the rest of us that they have nothing against homosexuality or lesbianism per se, going so far as to tell us that we must respect and even love our brothers and sisters who have chosen partners of their own sex. Even President Bush, in his statement on the matter, asks for a federal constitutional amendment that will leave “the state legislatures free to make their own choices in defining legal arrangements other than marriage.” And Sean P. O’Malley, the Roman Catholic archbishop of Boston, writes that “the church wants all people to live in harmony and mutual respect and to have everyone’s legitimate civil rights guaranteed.”

So before we lament the fact that a majority of our fellow citizens oppose same-sex marriage, we ought to pause for a moment of celebration. We have taken a very long step toward the kind of inclusiveness that a free society such as ours loudly and proudly proclaims. In fact, a majority of Americans, so the polls tell us, now favor civil unions.

The celebratory pause over, the rest of the journey will plainly not be easy. Civil unions are not enough, not by a long shot. We have the federal Defense of Marriage Act, authored by then U.S. Rep. Bob Barr, who has had three marriage licenses, and signed into law by Monica Lewinsky’s special friend. The act specifically exempts the states from the requirement that they honor marriages performed in another state. And we have a growing number of states that have chosen to define marriage in its traditionally restrictive way.

There are those who fear a “slippery slope,” who tremble at the prospect that if we say “yes” to gay and lesbian marriage today, we will be pressed to endorse polygamy or incestuous marriages tomorrow. I imagine that similar arguments were raised in California in 1948, when a Mexican-American woman and a black man were denied a marriage license until, finally, the state’s Supreme Court overturned the prevailing law. The slippery slope that in fact we face in the debate over same-sex marriage is that of isolating gays and lesbians, denying them the full protection of the law and the full dignity of acceptance. Say “yes” to civil unions only, and, in the current context, you may as well require gays and lesbians to wear, say, a pink armband.

Archbishop O’Malley wants gays and lesbians to feel comfortable in the church. In the course of the constitutional convention debate, one Massachusetts state legislator, a Catholic, citing the archbishop’s words, reminded him of Psalm 137, which asks, plaintively, “How shall we sing the Lord’s song in a foreign land?” Insofar as the church asserts, whether explicitly or implicitly, that the relationship between a man and a woman is more precious than the committed relationship of two men or of two women, it renders the church a foreign land to same-sex couples.

The Psalm that he and we all will surely one day cite is not 137 but 96: “Sing unto the Lord a new song, Sing unto the Lord, all the earth.”

Leonard Fein’s most recent book is “Against the Dying of the Light: A Father’s Story of Love, Loss and Hope” (Jewish Lights, 2001).

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