Constitution as a charter of governance for every person properly within its reach. 'Our obligation is . . . not to mandate our own moral code."" 22

That claim must be tested. As everyone knows, Marshall found the exclusion from marriage rights for homosexual couples to be "incompatible with the constitutional principles of respect for individual autonomy and equality under law." 23 As a remedy, the court "refined the common-law meaning of marriage. in light of evolving constitutional standards." 24 The court stayed its judgment for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion." 25

As Justice Robert J. Cordy points out in his dissent, "only by assuming that ‘marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry.'" 26 In other words, Marshall had to first envision "marriage" as encompassing homosexual couples before she could conclude that their exclusion violated the "right to marry" or that the exclusion was "invidiously discriminatory." This is a case of Lewis Carroll's Queen of Hearts: "Sentence first-verdict afterwards." 27 It turns out that the redefinition of the common-law meaning of marriage was not just the remedy but the basis for the circular conclusion that constitutional rights were violated.

Further, changing the common-law definition of marriage is, by its nature, judicial legislation. It is not in the Commonwealth's Constitution. And so we have it: One unelected judge imposing her values on the commonwealth and the nation. A few years ago, at the time of her confirmation hearing, dissenting Justice Martha B. Sosman testified:

No one elected me to anything and no one has asked me to run the commonwealth from my courtroom. Making the law... is not in my job description. Nothing in our constitution, state or federal, gives Martha Sosman or any other judge the power to inflict her own agenda, political or social, on the people of this commonwealth. I not only believe in judicial restraint, I practice what I preach.28

True to her words, Sosman dissented in Goodridge. In her dissent, she writes:

[T]he opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach.29

Now that the Supreme Judicial Court has issued its decree, what's next? Basically, the same recourse as was had in Hawaii and Alaska-amending the state constitution. With this difference: Massachusetts' procedure for state constitutional amendment is cumbersome, requiring repeated votes of the legislature and the public. The state constitution could be amended no earlier than 2006. This process could not be completed before the expiration of the 180-day period that the SJC gave the legislature to "to permit [it] to take such action as it may deem appropriate in light of this opinion." 30 That would require another favorable vote during the next legislative session (2005-2006) from the members of the legislature (both houses convened in constitutional convention) on the Marriage Amendment that was first approved on March 11, 2004, as well as approval from the voters by referendum in November, 2006.31

Lawrence v. Texas, which the U.S. Supreme Court decided in the summer of 2003, invalidated state anti-sodomy laws on grounds that "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. . . . The liberty protected by the Constitution allows homosexual persons the right to make this choice." 32 In so ruling the

22 798 N.E.2d at 948 (quoting Lawrence, 123 S. Ct. at 2480 (citations omitted)).

27 LEWIS CARROLL, ALICE'S ADVENTURES IN WONDERLAND 108 (Roger Lancelyn Green ed., Oxford Univ. Press 1971) (1941).

28 Dwight G. Duncan, Judicial Restraint in Massachusetts, 29 MASS. L. WKLY 11 (2000).

29 798 N.E.2d at 981 (Sosman, J., dissenting).

30 Goodridge v.

Dep't of Pub. Health, 798 N.E.2d 941, 970 (Mass. 2003).

31 See supra note 7 and accompanying text.

32 123 S.Ct. 2472, 2478 (2003).

Supreme Court overturned its 1986 decision in Bowers v. Hardwick.33 Most significantly, the Court held that moral disapproval of homosexuality did not constitute a legitimate state interest: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." 34 Even Justice O'Connor, who did not join in the substantive due-process overruling of Bowers, agreed with the majority on that point.3

35

Of course, the majority opinion by Justice Kennedy deliberately eschews its implications for marriage: "The present case .. does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." 36 Justice O'Connor in concurrence goes further: "Texas cannot assert any legitimate state interest here, such as. . preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." 37

In dissent, Justice Scalia begs to differ: "But 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." 38 He concludes:

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . . This case 'does not involve the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. 39 The majority opinion in Lawrence supports Justice Scalia's contention. Early in the majority opinion, Justice Kennedy writes that because the statutes "seek to control a personal relationship that. is within the liberty of persons to choose without being punished as criminals," the State or a court should not attempt "to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." 40 This sounds remarkably like John Stuart Mill's harm principle, that limitations on a person's liberty are justified only in order to prevent harm to someone." .41 Of course, there is the additional phrase "or abuse of an institution the law protects." There is no authority given for this dicta, and it has the feel of being rigged for the occasion, to reserve for another day the matter of homosexual marriage.

More tellingly, later on, the opinion magisterially quotes what Scalia calls the "famed sweet-mystery-of-life passage." "42 "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."43 If states or courts should not attempt "to define the meaning of a relationship," because that interferes with "liberty,"44 then who is to say what marriage means? Not only can we write our own vows, we can be as creative as we wish. Then the kicker: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” 45 "These purposes" refers back to "the most intimate and personal choices a person may make in a lifetime," which in turn refers back to "personal decisions relating to marriage, procreation, contraception, family relationships, childrearing and education." 46 As such, Justice Kennedy has implicitly forced the recognition of homosexual marriage.

Gay-marriage advocate Prof. Laurence Tribe of Harvard Law School agrees with Scalia's assessment: "Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time." 47

One remarkable feature of the majority decision in Lawrence is its reliance on foreign and international precedent. For example, the decision of the European Court

33 478 U.S. 186 (1986).

34 Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)). 35 Id. at 2487 (O'Connor, J., dissenting).

36 Id. at 2484.

37 Id 487-88 (O'Connor, J., concurring).

38 Id. at 2496 (Scalia, J., dissenting).

39 Id. at 2498.

40 Id. at 2478.

41 JOHN STUART MILL, ON LIBERTY 21-22 (Longmans et al. eds., 1999) (1869).

42 Lawrence, 123 S. Ct at 2489 (Scalia, J., dissenting).

43 Id. at 2481 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)) (emphasis added).

44 Id. at 2478.

45 Id. at 2482.

46 Id. at 2481.

47 Laurence H. Tribe, "Lawrence v. Texas: The Fundamental Right' that Dare Not Speak Its Name," 117 HARV. L. REV. 1894, 1945 (2004).

of Human Rights in Dudgeon v. United Kingdom, 48 that laws proscribing sodomy were invalid under the European Convention of Human Rights, is cited to disparage the Bowers decision, even though Bowers was subsequent to Dudgeon.49 Justice Kennedy also noted that "[o]ther nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries." 50

Justice Scalia is withering in his criticism of this reliance on foreign authority: "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is . . . meaningless dicta. Dangerous dicta, however, since this Court . . . should not impose foreign moods, fads, or fashions on Americans.'

"51

The fact remains that foreign precedent influenced a majority of the U.S. Supreme Court in Lawrence. Let us look north at how our closest neighbor is dealing with the issue of recognizing homosexual marriage, for Goodridge concurred with the Court of Appeal for Ontario in its remedy of "refin[ing] the common-law meaning of marriage." 52

On June 10, 2003, the Court of Appeal for Ontario, in the case of Halpern v. Canada, declared "the existing common law definition of marriage to be invalid to the extent that it refers to 'one man and one woman.' ""53 The Court reformulated "the common law definition of marriage as the voluntary union for life of two persons to the exclusion of all others," ordered the decision to have immediate effect, and the Clerk of the City of Toronto to issue marriage licenses to the Couples.54

The Court of Appeal for Ontario, in reaching this dramatic decision, accepted the holding of a lower court, which found that the definition of marriage was discriminatory under section 15 (1) of the Canadian Charter of Rights and Freedoms in a manner not justified under section 1 of the Charter. 55 Courts of Appeal in both British Columbia and Quebec have reached similar rulings.56

For our purposes, one of the most interesting constitutional arguments, made by the intervenor Association for Marriage and the Family in Ontario (the "Association") against recognizing homosexual marriage concerned the meaning of the word "marriage" in the Constitution Act, 1867. The Association argued that because the Canadian federal government was given exclusive jurisdiction over "marriage and divorce," it must follow that "as a constitutionally entrenched term, this definition of marriage can be amended only through the formal constitutional amendment procedures." ."57 The Ontario Court of Appeal found this argument "without merit" because, among other reasons, "to freeze the definition of marriage to whatever meaning it had in 1867 is contrary to this country's jurisprudence of progressive constitutional interpretation." 58 The Court continued: "[A Constitution] must... be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers." 59 "In our view," the Court then concluded, 'marriage' does not have a constitutionally fixed meaning. Rather, . . . the term 'marriage'. . . has the constitutional flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures." 60

This is a significant statement, particularly because the manner of "progressive constitutional interpretation" there exemplified is similar to the method employed in Lawrence, whose penultimate paragraph reads as follows:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact

48 45 Eur. Ct. H.R. (ser. A) (1981).

49 Lawrence, 123 S. Ct. at 2481.

50 Id. at 2483 (internal citations omitted).

51 Id. at 2495 (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990 n. (2002) (Thomas, J., concurring) (denying certiorari).

52 Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

53 172 O.A.C. 276, 308 (2003).

54 Id. at 383.

55 See id.

56 EGALE Canada Inc. v. Canada, [2003] 13 B.C.L.R.2d 1; Hendricks v. Quebec, [2002] R.J.Q. 2506

59 Id. at 288 (quoting Southham Inc. v. Hunter, [1984] S.C.R. 145, 155 (Can.)).

60 Id.

serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.61

If constitutional "liberty" did not historically entail sodomy, well, now it does. If marriage in Canada did not historically extend to same-sex couples, well, now it does. Of course, Canada's Constitution Act explicitly mentions "marriage." The United States Constitution nowhere mentions "marriage," and the right to marriage has been teased out of the "Due Process Clause."

What about the argument that this matter is best left to state law? Jonathan Rauch, writing in the Wall Street Journal, formulated just such a federalism argument:

For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home. . . . Same-sex marriage should not be a federal issue.62 Rauch's claim of exclusive state jurisdiction over the terms and conditions of marriage is false, however. It runs afoul of Loving v. Virginia, 63 which said states had no power, under our Federal Constitution, to prohibit interracial marriage. "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." 64 Loving also called marriage "one of the vital personal rights essential to the orderly pursuit of happiness," 65 thus protecting it from infringement by state law.

In addition to finding the antimiscegenation law a deprivation of liberty without due process, Loving found that the law violated the equal protection clause of the Fourteenth Amendment.66 Lovingis a favorite case of advocates of same-sex mar riage. Just as you should be able to marry the person you love regardless of race, the argument runs, you should be able to marry the person you love regardless of sex or sexual orientation.67 Of course, if the proponents of this argument are correct in predicting a decision along these lines by the United States Supreme Court, then the right to same-sex marriage will be required by the Federal Constitution, notwithstanding state constitutions or state and federal laws to the contrary. The only way of decisively defeating such an outcome would be by means of a federal constitutional amendment such as the Federal Marriage Amendment.

The claim of exclusive state jurisdiction over the incidents of marriage also is contradicted by Griswold v. Connecticut, 68 which said that states had no constitutional power to prohibit the use of contraceptives within marriage. It runs afoul of those federal cases that refer to a "fundamental right to marry" and strike down stateimposed conditions on its exercise, such as Boddie v. Connecticut 69 and Zablocki v. Redhail.70 Zablocki called the right to marry of "fundamental importance" and a "part of the fundamental 'right of privacy' implicit in the Fourteenth Amendment's Due Process Clause."71 While the opinion acknowledged that not all regulation of the incidents of marriage was necessarily subject to "rigorous scrutiny" and that "reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed," 72 that characterization did not apply to the state-imposed requirement that existing child support obligations be met before a person was allowed to marry, which was declared unconstitutional.73 Similarly, Turner v. Safley 74 invalidated on constitutional grounds a state prohibition on prison inmates marrying.

61 123 S. Ct. 2472, 2484 (2003).

62 Jonathan Rauch, Leave Gay Marriage to the States, WALL ST. J., July 27, 2001, at A8. 63 388 U.S. 1 (1967).

64 Id. at 12 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).

65 Id.

66 Id.

67 See e.g., Andrew Koppelman, Why Discrimination Against Lesbians & Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 284 (1994) (using Loving's result to argue by analogy that "just as interracial couples cannot be made to suffer any legal disadvantage that same-race couples are spared, gay couples cannot be made to suffer any legal disadvantages that heterosexual couples are spared. Lesbians and gay men must be permitted to marry.").

68 381 U.S. 479 (1965).

69 401 U.S. 371 (1971) (striking down a required divorce filing fee for indigents).

70 434 U.S. 374 (1978) (striking down state requirement that child support obligations be met before being allowed to marry).

71 Id. at 384.

72 Id. at 386.

73 Id. at 388 (applying strict scrutiny to the Wisconsin statute at issue).

74 482 U.S. 78 (1987).

The Federal Constitution, then, has expanded the circle of those who can legitimately marry under state law (people of opposite races, prisoners, deadbeat dads, those unable to pay courts for a divorce from a previous spouse), while also changing the understanding of what marriage entails (the right to contraception and the unilateral right of the woman to abort 75). It is at least forty years too late to claim that marriage is exclusively a state matter, or that "the power to set the terms and conditions of marriage. . has been reserved to the states." 76

Finally, I would like to note the problematic consequences for religious freedom that will follow the judicial imposition of a new understanding of marriage. In accordance with a legal opinion I co-signed with other law professors regarding the proposed Massachusetts constitutional amendment,77 to the extent a right to samesex marriage is read by courts into the Constitution, either state or federal, “it gives wide-ranging license to judges to enforce a new social norm on organizations touched by the law-which, as a practical matter, includes almost all organizations of any significance. Most significantly, churches and other religious organizations that fail to embrace civil unions as indistinct from marriage may be forced to retreat from their practices, or else face enormous legal pressure to change their views. Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status,78 academic accreditation,79 and media licenses,80 and could face charges of violating human rights codes or hate speech laws." 81

Mr. CHABOT. Mr. Kurtz, you are recognized for 5 minutes.

STATEMENT OF STANLEY KURTZ, HOOVER INSTITUTION, HARVARD UNIVERSITY

Mr. KURTZ. Thanks very much, Mr. Chairman.

The best way to judge the effects of gay marriage is to look at the countries where it already exists. Scandinavia has had a system of marriage-like same-sex registered partnerships for over a decade now. The Netherlands has had a system of registered partnerships for 8 years, and full and formal gay marriage for 3 years. And in every one of these countries, marriage is in crisis.

In Scandinavia, marriage is dying. A majority of children in Sweden and Norway are now born out of wedlock. Sixty percent of

75 Roe v. Wade, 410 U.S. 113 (1973).

76 Rauch, supra note 18.

77 Memorandum dated March 5, 2004 to Massachusetts Catholic Conference concerning Legal Analysis of the Finneran-Travaglini Amendment. The memorandum was signed by Prof. Mary Ann Glendon of Harvard Law School, myself, Professors Scott FitzGibbon and Thomas Kohler of Boston College Law School, Professor Gerard Bradley of the University of Notre Dame Law School, and Professor Robert Destro of the Columbus School of Law, the Catholic University of America.

78 Bob Jones Univ. v. U.S., 5561 U.S. 574, 586 (1983) (“an institution seeking tax-exempt status must. not be contrary to established public policy").

79 Trinity Western Univ. v. College of Teachers (British Columbia), 2001 Carswell BC 1016 (Sup. Ct. of Canada) (reversing decision of the College of Teachers to deny accreditation to Trinity Western University based on its code of conduct prohibiting homosexual behavior).

80 CKRD re Focus on the Family, Canadian Broadcast Standards Council, CBSC Decision 96/ 97-0155 (Dec. 16, 1997) (finding that radio station CKRD-AM violated the Canadian Association of Broadcasters' Code of Ethics in broadcasting a segment of the Focus on the Family radio program on Feb. 9, 1997), available at http://www.cbsc.ca/english/decisions/decisions/1997/ 971216i.htm.

81 See, e.g., Liam Reed, "Legal Warning to Church on Gay Stance," Irish Times, at 1 (Aug. 2, 2003) (Irish Council for Civil Liberties warning that Roman Catholic Church teaching on homosexual unions could violate Ireland's 1989 Incitement to Hatred Act); "Gay Group Sues After Sermon," Washington Post, at B7 (Jan. 3, 2004) (lawsuit alleging "slander and incitement to discrimination" filed against Cardinal Antonio Maria Ruoco Varela after comment in sermon_suggesting that same-sex marriage would bring down the country's social security system); Levin v. Yeshiva, 754 N.E.2d 1099 (N.Y. 2001) (finding private university housing policy distinguishing between married and unmarried couples to constitute sexual orientation discrimination in violation of city human rights ordinance); see also Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67 (Cal. 2004) (ruling that Catholic Charities do not fall within the religious exemption of a statute requiring contraceptive coverage as part of employee health insurance plans and are not constitutionally protected from application of the statute); Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003) (upholding Connecticut's exclusion of Boy Scouts from state employee workplace charitable campaign due to organization's policy on homosexual scoutmasters).