Same-Sex Marriage as a Civil Right

The decision of the Connecticut Supreme Court to legalize same-sex marriage is a welcome step forward in the struggle to advance the cause of American civil rights. Though it has already (and predictably) been attended by conservative complaints about "legislation from the bench," the decision is in the best tradition of constitutional jurisprudence and faithful to our nation's most basic values. This was noted most forcefully by historian Joseph Ellis (New York Times, February 29, 2004) in the wake of a parallel verdict by the Massachusetts Supreme Court. Of the principles encoded in that state's constitution by its author, John Adams, Ellis wrote:

[L]ike Jefferson's more famous formulation of the same message, Adams framed the status of individual rights in absolute and universal terms. Certain personal freedoms were thereby rendered nonnegotiable, and any restrictions on those freedoms were placed on the permanent defensive. At the very birth of the republic, in effect, an open-ended mandate for individual rights was inscribed into the DNA of the body politic, with implications that such rights would expand gradually over time.

In 1848, for example, the women at Seneca Falls cited Jefferson's magic words to demand political equality for all female citizens. In 1863 Lincoln referred to the same words at Gettysburg to justify the Civil War as a crusade, not just to preserve the Union, but also to end slavery. In 1963 Martin Luther King harked back to the promissory note written by Jefferson to claim civil rights for blacks. Now the meaning of the mandate has expanded again, this time to include gay and lesbian couples wishing to marry. With all the advantages of hindsight, it now seems wholly predictable that America's long argument would reach this new stage of inclusiveness.

In Ellis' formulation, the recognition of same-sex marriage rights is an organic development of the intrinsic evolutionary trajectory of our ongoing American Revolution. This assertion finds corroboration in the work of Gordon S. Wood, who wrote in his masterful The Radicalism of the American Revolution:

The republican revolution was the greatest utopian movement in American history. The revolutionaries aimed at nothing less than a reconstitution of American society. They hoped to destroy the bonds holding together the older monarchical society-kinship, patriarchy, and patronage-and to put in their place new social bonds of love, respect, and consent. (page 229)

The radicalism of the American Revolution was to celebrate and give priority to all forms of self-definition and social station rooted in personal autonomy and freedom of choice. Institutions that kept the individual locked into hierarchical structures beyond his or her control-the monarchy, the nobility, the established church-were rejected in favor of liberal safeguards that empowered people to determine their own place in the community and the world. Among the institutions most impacted by these revolutionary currents was the family. Membership in one's natal family was not a matter of personal choice, and thus not only did family ancestry diminish in importance in the revolutionary American society, but a whole series of systemic reforms were embraced that decreased the power of the family over the individual. Consequently, marriage increased in importance as a foundation of one's social and civic identity. Marriage is the only kinship relation that is truly elective, thus marriage has evolved in American law and politics as the paramount familial bond- surpassing all others in intimacy and legal cogency. No U.S. official or institution would allow two spouses to be kept apart by their parents or siblings, for this would be to privilege an involuntary relationship over one forged by a couple's own free will.

Conservative critics typically complain that the legalization of same-sex marriage will "alter" the age-old definition of marriage that has remained unchanged for eons. This is pure fallacy, however. Marriage has been evolving profoundly and constantly within our society and as a result of our republican Revolution. The very fact that the marriage bond in America is first and foremost forged by each spouse's declaration of intent (the fabled words "I do"), and that it can be undone by a reversal of that same intent (among the earliest developments in American family law was a liberalization of the institution of divorce) marks a radical break with the manner in which marriage operated as an institution for most of human history. This principle, moreover, has not been a constant in American history, but has evolved by stages and degrees as our republic has developed. As recently as 1993 spousal rape was not considered a prosecutable crime in many states, a vestige of the old, illiberal doctrine that marriage was a bond rooted in procreational biology rather than mutual affection and consent. The recognition of the rights of same-sex couples to enter the marital bond embodies the same imperative that has impelled the evolution of American marriage as an institution throughout the nation's history: the preservation of individual dignity and personal autonomy (in the words of the Declaration of Independence, the right to "life, liberty, and the pursuit of happiness").

The most recent decision in Connecticut is a progressive unfolding of this imperative, but it will no doubt engender vehement resistance. Unfortunately, this year's Democratic presidential candidates are committed to the shopworn triangulation that opposes same-sex marriage but embraces "civil unions." At this late hour it is unrealistic to expect Barack Obama and Joe Biden to flip-flop on this issue, and economic issues so overwhelm the discourse of this electoral cycle that consideration of same-sex marriage is not likely to achieve much traction. Political tidal forces are bringing this issue to a head, however, and it will not long be possible for politicians on either side of the aisle to prevaricate. It can only be hoped that Democrats will stop running from their political convictions in this regard, and will embrace the position that clearly occupies the downhill slope of history: that same-sex marriage is a civil right, and one that should be safeguarded for all citizens throughout our American Union.