Jay R. Kaufman

March 20, 2004

The debate about same-sex civil marriage and a proposed "defense of marriage" amendment to the Massachusetts Constitution finds us at some of the great crossroads of our democracy:

• the line between church and state;
• the interactions of the three separate and co-equal branches of government; and
• our dual commitment to majority rule and the protection of minority rights.

It also finds us at a time of dramatic social change. While we all respect and appreciate traditional families and traditional family values, the reality is that our families and our values are in flux. More than half of the marriages in Massachusetts end in divorce. The statistics about infidelity, abandonment or abuse are sobering, and for each statistic there are people who are hurt. Fewer than one third of the households in Massachusetts are of the traditional "Ma and Pa and the kids" flavor. Many of our children are living with a single parent, with one or both parents remarried (and therefore having as many as four parents and step parents), or in households with two adults not joined in marriage - some heterosexual partners, some same sex partners.

Like it or not, the times they are a changin'. Change is rarely easy and it is almost never painless. And we need to ask ourselves whether this isn't a strange, indeed the wrong, time to consider putting into the Constitution - our sacred and fundamental social compact - a definition of marriage that doesn't speak to today or to tomorrow.

Let this be clear: Our debate is about civil marriage, about the state's legitimate and proper interest in social order and stability. Nothing we are debating or will decide, touches on any religious definition of marriage. We are not addressing - nor should we address - what any religious institutions believe or do about love, marriage, divorce, sex, or sexual orientation. However, given the number of same-sex couples and families headed by same-sex couples in Massachusetts today, we are - and should be - asking whether there isn't the same public purpose in the order and stability of gay and lesbian relationships that there is in heterosexual relationships. This may be a new and challenging question, but, in these changing times, it demands an answer.

One way to steady ourselves in this time of dizzying change is to look ahead. Look to the world our children will inherit. A generation or two from now, our children will ask: "What was the big deal?" They are growing up with classmates and cousins living in same sex households. Their friends, colleagues, and some of them will have fallen in love and married. Some will go on to become Ma and Pa. Some will go on to be Ma and Ma, some Pa and Pa.

And yet, we don't need to wait a generation. That reality is with us today. Just look around your community, your family. It is true in the Massachusetts legislature. We are not debating an abstraction. We are debating the lives of our colleagues, elected by their constituents, even as I was. Am I supposed to look them in the eye and tell them that they and their families are second class citizens?

At its heart, our debate is primarily about justice. Martin Luther King, Jr. said "the arc of history bends towards justice." On November 17, 2003, the Massachusetts Supreme Judicial Court's decision in the Goodridge case gave us a big push along that arc.

Some have accused the Court's majority of inappropriate judicial activism. I profoundly disagree. Courts, under our Constitution, are here to serve as a check on legislative action and, in this case, legislative inaction. Largely because of an abuse of power by the House leadership, the legislature had, for nearly a decade, failed to take action on a number of bills filed to address the rights and responsibilities of single sex couples and their children. The plaintiffs in the Goodridge case, having been failed by their elected officials in the pursuit of justice, turned to the courts. The SJC, in turn, heard the evidence and rendered a decision. Those who like the decision call it justice; those who don't decry activist judges. It is always that way with judicial decision, but the Court was just doing what the Constitution required of it. It is worth remembering, too, that deToqueville and the Federalist Papers make it clear that the courts (of the three branches of government) are the best hope of protecting minority rights in a democratic system based on majority rule. Many, if not most, of the great advances in civil rights in our nation's history owe a great deal to the courts. The Civil War gets some credit too, of course, but I'll take the courts (even when I disagree with the decision) over arms.

"The arc of history bends towards justice." Our choice now is to embrace that movement, accept it along with whatever misgivings, uncertainties and discomforts we may feel, or resist and fight the tide of history, the bend of the arc.

We have been at crossroads like this before. As we expand our definition of "We" in "We the people," there will always be voices that say "well we, but not them." We need only to look at our nation's history to find examples.

Representative democracy was an experiment in 1776. Many, perhaps most, believed that it was dangerous, unnatural to allow what John Adams called "the rabble" to elect - or become - leaders.

A century later, some - even most - argued that it was unnatural to allow women to vote.

Many resisted the 1954 U.S. Supreme Court's "Brown v. Board of Education" decision. They said it just wasn't natural to expect black and white children to learn and grow together.

Many resisted the more-recent and long-overdue abandonment of bans on interracial marriage. They said that marriage between people of different races was unnatural.

Thanks to the SJC's decision, we are at the frontier of the next great expansion of rights. I welcome the opportunity to be part of this momentous advance. I have been deeply moved and am deeply grateful to the many people on both sides of this issue who have shared their thoughts, fears, pains and dreams with me. I understand and appreciate how challenging - even threatening - the idea of gay marriage is to some. But to have one set of standard for the rights and responsibilities of one group and another set for a second group is inherently discriminatory.

While proponents of a Constitutional amendment banning same-sex marriages may not, and in fact almost certainly do not, have an intention to discriminate in their hearts, discrimination does not have to be intended to be felt or to be real. The legislative debate has featured many eloquent voices speaking to the pain of discrimination. If you have been discriminated against, as many of my colleagues have, you know whereof you speak. Because of discrimination, my own family tree has festering wounds where limbs ought to be. Am I sensitive to discrimination? How could I be otherwise?

Those who have known discrimination are the canaries in the mine. And we're gasping. We look at the proposed Constitutional amendments before us and we feel the air getting dangerously thin or toxic. Gay and lesbians will be the first to suffer, but if the air is thin or dangerously polluted for some, it is thin or polluted for all.

Our forebears, the authors of the Massachusetts Constitution, look down on us across the generations. They ask whether we are prepared, for the first time since they took up their quills, to write discrimination into our Constitution. Happily, they made sure that amending the Constitution is a cumbersome process, protected (to the extent it can be) from the tyranny of the majority and the passions of the day. It requires that two separately-elected legislatures pass judgment on proposed amendments, and only if both pass identical provisions is the proposed amendment put on the ballot for a public referendum. Representatives and Senators, meeting in Constitutional Convention, are required to exercise judgment and only put on the ballot those amendments that serve our citizenry - majority and minority - and Commonwealth. In my estimation, the amendments that we have been considering do not meet this test. I cannot vote to amend the Constitution to discriminate against a minority group in our midst.

To those who argue, based, I believe, on a misunderstanding of American history and the nature of representative democracy, "just let the people vote," I reply that it is my responsibility - moral and Constitutional - to exercise judgment. The legislature is the court of first judgment; and it is the court of second, reconsidered, judgment. It is not a pass-through agency for Constitutional amendments.

I have the awesome responsibility to exercise judgment and cast votes on the civil rights issue of our day. There can be no doubt that these are votes that history will long note and judge. It is an honor beyond measure to be part of this process, and an honor, beyond measure, to cast my vote for justice.