The Supreme Judicial Court of Massachusetts, that state’s highest court, decided this month that the state’s constitution does not forbid same-sex civil marriages. It therefore paved the way for legal recognition of gay and lesbian marriages there. The decision has already heightened the national debate concerning same-sex marriages. And if at least one similar long-ago ruling from the same court is any indication, it’s going to provoke a long, protracted, bitterly contested debate along one of the central fault-lines of democratic government — and will be decided many years from now by courts rather than by the voters.
More than two centuries ago, in a landmark case resembling the one on same-sex marriage, the Massachusetts supreme court ruled that slavery was unconstitutional in the Bay State. Although it would be several more years before all slaves in Massachusetts would be set free, the Commonwealth v. Jennison case of 1783 ensured that slaves could successfully sue their masters for freedom. Then as today, Massachusetts judges addressed a tension at the center of this nation’s legal and political system: the delicate balance between majority rule and individual rights.
In both instances, a majority of Americans opposed the courts’ decisions. The 1997 federal Defense of Marriage Act defines marriage as a union between a woman and a man. Recent polls indicate that more than half of the public is against same-sex marriage and only about a third in favor. Likewise in the late eighteenth century, given that only three northern state legislatures begrudgingly passed gradual abolition measures in the 1780s, itís safe to say that most late 18th-century voters were unwilling to give up slavery.
Massachusetts courts have thus, in two striking cases, shown themselves to be willing to swim against the popular tide. They have seemingly challenged the will of the majority, the fundamental source of authority in a democracy.
In another parallel between the two cases, the court in each instance decided by referring to the Massachusetts constitution’s first article, guaranteeing “inalienable rights” to all citizens. The presiding judge in the crucial 1783 slavery case stated forcefully that the state constitution’s first clause declared “that all men are born free and equal.” Slavery, the judge argued, directly contradicted the principle that all people should enjoy legal freedom and equality.
Similarly, the current chief justice of the Massachusetts Supreme Judicial Court, Margaret H. Marshall, pointed to the same sentence, writing that the state constitution “affirms the dignity and equality of all individuals.” She reasoned that the state cannot deny some pairs of citizens (two men or two women) the same rights it accords to others (a woman and a man).
By abolishing slavery in 1783 and upholding same-sex marriages in 2003, the Massachusetts Court reaffirmed another of the most dearly held American beliefs: that everyone should be equal in the eyes of the law.
What the old conflict over slavery teaches us about the current debate over same-sex marriages is that the country may be in for another long, long controversy. Although by the early 19th century all the Northern states had committed at least to eventual emancipation, slavery’s Southern supporters clung tenaciously to their “peculiar institution,” further entrenching it in their society, their economy and their legal systems into the 1860s. And it wasn’t until the 1960s that a growing national consensus, fueled in large part by court decisions, finally forced many states to eliminate laws that essentially made African Americans second-class citizens.
While the debate over same-sex marriages may last less than 200 years, it may still be a long time before popular opinion on the issue coincides with how judges define the rights of individuals to civil marriage. Already, both proponents and opponents of same-sex unions are digging in, using the same kinds of contentions employed to attack and defend slavery: quoting the Bible, invoking the Declaration of Independence and the federal Constitution, citing the latest scientific and social research and making claims about human nature.
Commonwealth v. Jennison and its long aftermath also indicate that, regardless of when or if agreement between majority opinion and jurisprudence ever occurs, the matter most likely won’t be settled by voters or their elected representatives. Southern states retained slavery for another eighty years after the Massachusetts decisions and seceded from the Union in 1861 rather than give up the right to enslave.
The battle over same-sex marriage won’t result in a civil war. But like other such emotionally charged issues involving conflicts between individual rights and the popular will, this one will probably be settled in the courts rather than at the ballot box.
So, whatever side of the same-sex marriage debate you’re on, feel free to get ready to shout your opinions from the rooftop to convince your fellow citizens. But don’t hold your breath waiting for them to agree with you.
Andrew M. Schocket is author of “Founding Corporate Power in Early National Philadelphia” and director of American Culture Studies at Bowling Green State University.
