Dec. 24, 2003
How many legs does a dog have if you call its tail a leg? That
familiar fable, often attributed to Abe Lincoln, comes to mind when we
contemplate the redefinition of marriage by the Massachusetts Supreme
In a 4-3 decision released November 18, the court acknowledged
that for three centuries Massachusetts defined civil marriage as stated
in Black's Law Dictionary: "the legal union of a man and woman as
husband and wife." The court then arrogantly determined that there is
no "rational basis" for such a restrictive definition, which it said
reflects a "destructive stereotype" about the instability of same-sex
couples and their inability to procreate.
After pontificating in like vein for several pages, the court
ordered that at the end of 180 days Massachusetts will have a new
definition of marriage: "We construe civil marriage to mean the
voluntary union of two persons as spouses, to the exclusion of all
That formula not only redefines marriage, but also spouse.
Although spouse is a gender neutral word, federal law states the
obvious: "The word spouse refers only to a person of the opposite sex
who is a husband or a wife."
With five months to go before the Massachusetts decision becomes
final on May 16, it's time to consider how such a radical change in the
meaning of a word by one state will affect or be affected by the laws
of Congress and the other 49 states, all of which adhere to the
definition of marriage that Massachusetts just abolished.
Take one example. The Internal Revenue Code has provided since
1948 that "a husband and wife may make a single return jointly of
income taxes." If Massachusetts law no longer recognizes the federal
meaning of husband and wife, then Massachusetts couples, including
opposite sex couples married after May 16, will no longer be entitled
to file a joint federal income tax return.
Gay advocates want same-sex couples to claim the 1,049 benefits of
marriage under federal law (referring to the 1,049 federal laws in
which marital status is a factor, according to a 1997 General
Accounting Office report). But what is likely to happen instead is
that opposite-sex couples married in Massachusetts after the effective
date will lose those same 1,049 federal benefits.
The 1,049 federal laws recognize and were intended to support
marriage as the union of husband and wife, not the union of "two
persons." In our federal system, Massachusetts may well be free to
abolish the concept of husband and wife within its borders, but it is
not free to label the civil union of "two persons" as a marriage
entitled to federal recognition.
Once the highest court of a state declares that a husband and wife
are no longer needed for a valid marriage, then whatever unions it
creates are not real marriages, no matter what the state chooses to
call them. A dog doesn't have five legs even if you call its tail a
leg, and Massachusetts couples will have to get married in another
state in order to be assured of a marriage that other states and the
federal government will recognize.
To try to avoid the consequences of what Massachusetts House
Speaker Tom Finneran said is a decision that has "legal, moral, and
social considerations for 270 million Americans, not just 6 million
people in Massachusetts," the state senate has asked the state supreme
court for an advisory opinion about whether gay civil unions might be
an acceptable substitute for gay marriage.
The senate's request deceptively refers to its proposal as "civil
unions," but in fact it is identical in every respect to the court's
redefinition of marriage as the "union of two persons." The senate's
proposal does not merely create a separate legal category giving civil
unions the benefits of marriage as does the law that Vermont Governor
Howard Dean signed in 2000.
The proposed Massachusetts bill states categorically that a civil
union is "equivalent to marriage and shall be treated under law as a
marriage," and that "all laws applicable to marriage shall also apply
to civil unions." The bill states that "the term marriage as it is
used throughout the law shall be construed to include marriage and
This proposed Massachusetts bill further declares: "It shall be an
unlawful practice for any person to discriminate on the basis of a
person's being joined in a civil union rather than a marriage." Note
the broad sweep of the restriction placed on "any person."
Logic dictates that if a civil union is no less than a marriage,
then marriage is no more than a civil union. In either case, this
legal status should not be recognized as valid outside of
Massachusetts, and if opposite-sex couples want to be recognized as
married by the federal government and by the other 49 states, they will
have to travel to another state to pronounce their marriage vows.