The Claim That “Civil Rights Should Not Be Put To A Vote” Ignores How Civil Rights Are Born 

Whether you start this in a court or you start this in a legislature, ultimately to succeed we have to convince Americans that it is wrong to exclude same-sex couples from marriage.  Matthew Coles, ACLU's Lesbian Gay Bisexual Transgender Project [4]

[A]s Rev. Dr. Martin Luther King, Jr. explained, no minority can succeed without the assistance of the majority.  Mary Bonauto, Attorney for Plaintiffs in Goodridge case [5]

In short, African Americans made progress in the 1960s because a majority of white Americans wanted them to.  Prof. Jack M. Balkin, Yale Law School  [6]

MassEquality, a leading supporter of same-sex marriage in Massachusetts, titles an online fact sheet, “Why people’s rights should not be put to a vote.”[7]  The title begs the question.  Where do “people’s rights” come from in the first place?  In our system of democracy, civil rights come through the people who directly, or through their elected representatives, vote to create civil protections.  As conceded by supporters of same-sex marriage, they ultimately have to convince average Americans that a claimed right deserves civil status.   That is how democracy works.

The origin of civil rights

There are different types of rights—such as natural, human, fundamental, inherent, inalienable, substantive, “positive,” customary, personal, communal, procedural, and contractual.  A “civil” right is one that the citizenry adopts through some civic process in order to direct civil authorities to protect it.  “Civil” rights may or may not be rooted in or correspond to natural, human, fundamental, or inherent rights, which arise apart from government.  But even rights regarded today as fundamental, such as the freedoms of religion, speech, assembly, and so forth, to be practically enforced as civil rights in a democracy, had to be ratified initially through democratic means, the form by which our system of self-government operates. 

As one author wrote around the time of the debate over the 14^th Amendment’s ratification: 

There is a tendency, . . . to forget that rights are and can be real, only as they are established in the civil and political organization.  They are slowly, and only with toil and endeavor, enacted in laws, and moulded in institutions.  It is only with care and steadiness and tenacity of purpose that those guarantees are forged which are the securance of freedom, and they are to be clinched and riveted to be strong for defense and against assault.[8]

Before civil rights can be threatened with being “taken away,” they have to exist.  In a democracy, a civil right comes into legal existence through the democratic process.  Such a right, or more properly its civil status, is voted into being as part of constitutional documents or amendments, or enshrined in legislation, what the philosophers call “positive” or written law.  Either the people directly at the ballot or the people’s elected representatives at the statehouse reach a consensus about what the law will protect as a civil right, and formalize this consensus in a new amendment or statute.  Popular enactments are the official recordings, so to speak, of a majority’s backing for a particular rights claim.

Thus, the people, acting through Congress and constitutional conventions in the states, had to approve our nation’s Bill of Rights and successive additions such as the 14^th Amendment before the rights declared therein became binding.   The same democratic process occurred in Massachusetts, whereby voters in the towns first called for, and then ratified the Declaration of Rights as part of our state constitution.  New rights must be approved at the ballot by Massachusetts voters before they are added as constitutional amendments.

The rule at work here is, of course, “the consent of the governed.”   At the root of democracy is the individual or representative vote, the way that citizens exercise their consent.  To gain civil status, therefore, a claimed right must be consented to, that is voted on, by the people directly or through their elected representatives.

So it makes no sense to argue that rights claims should not be put to a vote when it is precisely a popular or representative vote to which civil rights owe their civil existence.  In a democracy, claimed rights become enforceable as civil rights through the democratic process.  A necessary link exists, therefore, between a right’s civil status and democracy.  

As will be argued below, neither direct nor representative democracy has elevated same-sex marriage to the status of a civil right in Massachusetts.  So the issue here is not about putting civil rights to a vote, but about voting to create a civil right in the first place. 

The ballot initiative is a civil right

The connection between democracy and the creation of civil rights is so fundamental that the people in Massachusetts enjoy a civil right to consider basic questions at the ballot.  Article 48 of the state constitution, approved by legislators and ratified by the voters in the early 1900s, empowers “a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection” through an initiative petition.[9] 

According to the Massachusetts Supreme Judicial Court (SJC), the civil right to petition the voters allows for “public debate [to] be focused on whether some laws, or the Constitution, ought to be amended to conform with the current expectations and wishes of the people.”[10]  The civil right to initiate ballot questions recognizes that the people, not the courts or the legislature, are sovereign when it comes to determining what the law ought to be.

Thus, regarding the courts, the SJC has affirmed that the people may use “the initiative process to amend the Constitution prospectively, thereby changing the substantive law to be applied and effectively ‘overruling’ the precedential effect of a prior court decision interpreting it.”[11]  Just because a court rules one way does not prevent the people from amending the applicable law to change the underlying value judgments that the courts must subscribe to and apply in the future.[12]

Similarly, regarding the legislature, the SJC has explained that the civil right to initiate ballot questions offers “a means by which the people could move forward on measures which they deemed necessary and desirable without the danger of their will being thwarted by legislative action.”[13]  Article 48 sets up a process that involves the legislature only to “ensure that initiative amendments submitted to the people for approval have at least a reasonable amount of public support, as reflected by the favorable votes of at least one fourth of the legislators elected to the General Court.”[14]  The legislators have a constitutional duty not to use parliamentary tricks or delays to avoid taking “final action,” that is, an up-or-down roll call vote on whether to send an initiative petition to the ballot,[15] since the initiative is “the people’s process.”[16]

Indeed, “[t]he principle of the initiative and referendum in its purity means that the people of this Commonwealth may have such laws and may have such a Constitution as they see fit themselves to adopt.”[17]  That is, the people, acting as sovereign, retain the civil right to address basic social questions at the ballot, over and against the opinions of their servants in government. 

The existence of the civil right to initiate ballot questions in Massachusetts reinforces the principle that behind every authentic civil right there should be a democratic vote, since it is ultimately the people that establish the laws by which they are governed.

The History Of Civil Rights In Our Country Affirms That The Courts’ Role Is To Apply, Not To Create, Civil Rights Protections.   

Today, the court has transformed its role as protector of individual rights into the role of creator of rights.  Justice Francis X. Spina, dissenting in Goodridge case [18]

As one State House wag in Massachusetts put it, "We used to have government of the people, by the people and for the people, now we're getting government by four people!" Prof. Mary Ann Glendon, Harvard Law School [19]

Opponents of letting the people vote on the definition of marriage act as if same-sex marriage is already a civil right.  They point to the SJC ruling in the Goodridge case where four out of seven unelected justices redefined marriage to allow same-sex couples to obtain marriage licenses.  However, as will be explained below, the Goodridge ruling lacked the requisite democratic foundation.  The same-sex marriage claim endorsed in that case never gained civil rights status through a vote of the people.

The democratic basis for civil rights is evidenced in our country’s political history.  Contrary to the assertions of some, the judicial role is not to enforce social change by making new law, but to apply the law that the people have adopted.  The courts must rely on direction from the political arena in the form of constitutional amendments or civil rights statutes, either directly commanding the courts to protect a claim as a civil right, or signaling that a particular group deserves heightened constitutional protection.  Civil rights for racial minorities, and for women, for example, have been created through the democratic process, not the courts. 

In short, when it comes to civil rights, the people lead and the courts follow.  A brief survey in the areas of rights for racial minorities and women is instructive.

Racial discrimination

Chief Justice Margaret Marshall, author of the SJC’s same-sex marriage ruling in Goodridge, once boasted in an interview that the courts have the power to stamp out various practices they deem to be evils “with one stroke of the pen of a judicial opinion.”[20]  Marshall mentioned as proof an early Massachusetts court proceeding referred to as the “Quock Walker case” and reputed to have abolished racial slavery in the Commonwealth.[21] 

Yet, as her interviewer noted, “most of the historians who have studied the [Walker] case have concluded that the Massachusetts court didn’t end slavery with a righteous bang.  Instead, the practice lost popular support and gradually withered away.  Slaves simply wandered off, won their freedom from sympathetic juries, or were given it by their masters.  No grand stroke of the judicial pen was necessary.”[22]

Also, Marshall’s interviewer continued, “[m]uch of the [Goodridge] opinion’s moral weight is borne by a historical analogy between gay marriage and interracial unions.”[23]  Marshall referred in Goodridge to a 1948 California Supreme Court decision, Perez v. Sharp, which struck down a state ban on interracial marriage.[24]  Yet,  

The parallel between Perez and Goodridge is not a perfect one, however.  Behind the California decision stood the equal protection clause in the 14^th Amendment, which Congress passed to ensure full citizenship for black Americans after the Civil War.  The Massachusetts Declaration of Rights, with its ringing statement that ‘All people are born free and equal,’ has strong guarantees of liberty and equality.  But no state or federal law passed expressly to guarantee gay people full rights stands behind Goodridge.[25] 

Contrary to the grandiose perspective of Chief Justice Marshall, the national history of civil rights for racial minorities necessarily begins not with the courts but with the enactment of the 13^th, 14^th, and 15^th amendments to the U.S. Constitution in the 1800s, barring government discrimination on the basis of race.  Other landmark major civil rights enactments by Congress include the Civil Rights Acts of the 1870s, 1964, and 1968.  These and numerous state counterparts were majoritarian expressions of democracy, penalizing private racial discrimination in a host of contexts including employment, public accommodations and housing.[26]

As described by the U.S. Supreme Court in the first case to apply the 14^th Amendment, the primary intent behind the Amendment was “to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.”[27]  A similar objective lies behind the legislative adoption of numerous civil rights acts guaranteeing racial minorities equal treatment by various private actors.[28] 

As vehicles for the democratic establishment of a civil right not to be discriminated against on the basis of race, the civil rights amendments of the 1800s, and subsequent federal and state statutes expressly banning racial discrimination in particular areas, handed the courts their marching orders.  Subsequent landmark Supreme Court decisions on race, including Brown v. Board of Education as discussed separately below, thus owe their authority not to the power of judges, but to the will of the people.

Sex discrimination

The same subordination of the judiciary to democracy is found in the context of sex discrimination.  In 1920, women gained the right to vote through the democratic enactment of the 19^th Amendment to the U.S. Constitution.[29]  Subsequently, Congress and the states have created specific civil rights protections guaranteeing equal treatment of men and women in particular areas.

In 1972, a plurality opinion of the U.S. Supreme Court, calling for heightened constitutional scrutiny of laws discriminating on the basis of sex, observed that “over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications.”[30]  Cited were the Civil Rights Act of 1964, the Equal Pay Act of 1963, both of which added sex to the other prohibited classifications, and a federal Equal Rights Amendment (ERA) sent by Congress to the states for ratification.[31] 

Yet when ruling on sex-based policies under the 14^th Amendment the Court does not apply the same level of scrutiny it uses in cases involving race-based policies.[32] This may be due partly to two factors.  First, race-based discrimination was clearly the overriding concern during the 14^th Amendment debates.  The status of women was not in focus.  Second, the proposed Equal Rights Amendment, seeking to add sex to the list of suspect classifications, has failed to gain ratification by the states.  Thus, the Court lacks in federal cases a clear constitutional command from the people to treat sex-based discrimination in the same manner it treats racial discrimination.

In Massachusetts, however, the people approved a state ERA at the ballot in 1976, thereby expressly creating a civil right not to be discriminated against on the basis of sex.  According to the SJC in the first decision construing the state ERA,

Article 106 incorporates into our State Constitution an express prohibition of discrimination on the basis of sex, grouping it with other prohibited bases for discrimination which are subject to strict judicial scrutiny.  All the categorical bases listed therein logically are subject to the same degree of judicial scrutiny, and in our opinion that degree of scrutiny must be at least as strict as the scrutiny required by the Fourteenth Amendment for racial classifications.  Therefore, we conclude that the people of Massachusetts view sex discrimination with the same vigorous disapproval as they view racial, ethnic, and religious discrimination.[33]

The judicial reliance on the people’s direction in the context of sex discrimination, like that in the context of racial discrimination, upholds democracy and respects the limits against judicial lawmaking inherent in a democratic system of government.  Enforcing the law as adopted by the people, rather than substituting a court’s own opinion as to what the law should be, characterizes the creation of civil rights.[34] 

As indicated in the next section, the circumstances surrounding the abolition of racially segregated schools are consistent with this pattern.  The ruling in Brown v. Board of Education does not serve as precedent for the constitutionally aberrant ruling in the Goodridge case.

The Desegregation Ruling in Brown v. Board of Education Upheld Democracy By Applying the 14^th Amendment. 

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.  Unanimous Opinion, U. S. Supreme Court, Brown v. Board of Education [35]

As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society.  As a matter of constitutional jurisprudence, however, the [Goodridge] case stands as an aberration.  Justice Martha B. Sosman, Dissenting Opinion in Goodridge case [36]

In the 1954 ruling in Brown v. Board of Education, the U.S. Supreme Court struck down racial segregation in the public schools of Topeka, Kansas.  Supporters of same-sex marriage argue that if one rejects the Goodridge ruling on same-sex marriage as “judicial activism” that overrides the will of the people, then one also must reject the Brown ruling on racial segregation.  Both rulings were unpopular at the time they were issued.[37]

Yet the Brown ruling, unlike the Goodridge ruling as explained below, was rooted in a prior exercise of democracy directly bearing on the value choices confronting the judiciary.  Although general in its terms, the 14^th Amendment was debated, adopted by Congress, and ratified by the states in the 19^th century precisely as a response to racial discrimination.[38]  In light of this historical context, the Supreme Court rightly observed in Brown that the 14^th Amendment “was primarily designed” to protect persons of color against state-imposed racial inequality.[39] 

The democratic process creating the 14^th Amendment had imposed on the government a civil rights duty binding on the courts and applicable to the racial segregation context.  Once the Supreme Court found in Brown that the segregation policies before it were race-based and exacted unequal burdens on persons of color, then it was authorized to act, not by the dictate of the Court’s own opinion of what is right and decent, but by the mandate of the people’s elected representatives who enacted the 14^th Amendment. [40] 

As a result, while the Brown decision may have been unpopular when it was issued, it was not undemocratic.   The ruling in 1954 had its roots in a political consensus, albeit one achieved a century before and misconstrued by the judiciary since the Plessey v. Ferguson case.[41]  This original consensus was enshrined democratically in the fundamental law of the land, the federal Constitution, through the 14^th Amendment.  The political debate which produced the 14^th Amendment focused squarely on the propriety of using race as a discriminating factor. 

The resulting civil right not to be subjected to official discrimination based on race, arising from the people’s deliberative exercise of sovereignty, was appropriately within the power of the judiciary to apply at the time of the Brown litigation.   Thus, when striking down the Topeka schools’ segregation policy, the Supreme Court did not usurp the people’s sovereignty but instead voted to uphold it.  That makes Brown incomparable to Goodridge.

Same-Sex Marriage In Our State Is Solely The Creature Of A Court Ruling, Not Democracy.

We are mindful that our decision marks a change in the history of our marriage law.  Majority Opinion in Goodridge case [42]

Another factor sped the timing of the decision to litigate: we knew we would soon be on the defense in a constitutional amendment campaign.  Mary Bonauto, Attorney for Plaintiffs in Goodridge case [43]

If the decision of the Supreme Judicial Court in Goodridge is "judicial tyranny," let there be more of it.  Rev. Peter Gomes, Harvard University [44]

Two features of the Goodridge case are notable.  First, the outcome overturned democracy by rejecting the long-standing political consensus limiting marriage to opposite-sex unions.  Second, the lawsuit was filed to beat to the punch a new exercise of democracy asking the people to reaffirm that consensus.  This is not how civil rights are born.

No democratic roots.

By a bare one-vote majority among unelected justices, the SJC declared in Goodridge that marriage must be defined without reference to the sexes and made accessible as a civil right to same-sex couples.[45]  The majority acknowledged that the democratically enacted laws of the Commonwealth had heretofore incorporated the “every-day meaning of marriage” referring to “the legal union of man and woman as husband and wife.”[46]  It also agreed that “our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.”[47]

The majority did not argue, nor could it, that those who framed the Massachusetts Constitution during the colonial era and those who ratified it had same-sex marriage in mind.[48]  The general terms of the Declaration of Rights, guaranteeing liberty and equality, were not forged, debated or approved in the context of any public controversy involving the definition of marriage.   Only once was the matter publicly raised as a constitutional question, during the referendum debate over the proposed state ERA, and the framers of that amendment disavowed any intent to give same-sex couples a civil right to marry.[49]  Thus, the courts were not obliged by the people to recognize same-sex marriage as a civil right.

Instead, the majority described the governing constitutional mandate in the Goodridge case as one prohibiting state policies from being “arbitrary or capricious.”[50]  All it was doing, the majority argued, was carrying out the judiciary’s constitutional duty to ensure that laws are rational.[51]  But the majority’s negative assessment of the rationality of traditional marriage laws lacked any democratic reference.  In determining what it found rational or irrational, the majority employed value judgments that the people never endorsed and that were highly suspicious of traditional marriage policy.

Against the well-reasoned and strong objections of three other justices who dissented, the majority in Goodridge rejected traditional marriage policy due to what it characterized as the “invidious quality of the discrimination” supposedly involved.[52]  The majority asserted that requiring marriage to include both sexes “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.”[53]  The majority also contended that the State excluded children of same-sex couples from the benefits availed to children of married opposite-sex couples because it “disapproves of their parents’ sexual orientation.”[54]  The majority suggested in conclusion that traditional marriage policy is “rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.”[55]

Democracy in our country has never adopted such negative characterizations or assessments of traditional marriage policy.  No constitutional amendment or law—whether in the Commonwealth or in the rest of the nation—expresses or signifies the people’s agreement that limiting marriage to opposite-sex couples somehow is symptomatic of a desire to harm, based on stereotype, or disrespectful towards individuals because of their sexual orientation. 

In view of the number of referenda and legislative enactments in our country reaffirming marriage as the union between one man and one woman, it is clear that democracy has produced the opposite judgment.[56]  The people see such limits as a matter of common sense, and not as the product of irrational prejudice.   Thus, there is no authoritative evaluation emanating from the democratic process that supports the suspicion and negativity displayed by the majority in Goodridge.  The findings of irrationality declared therein were influenced by factors lacking any roots in democracy.

Facing similar arguments claiming that traditional marriage is a form of bigotry, the state supreme courts of New York and Washington had this to say:

The idea that same-sex marriage is even possible is a relatively new one.  Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.  A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.  We do not so conclude.[57]

Turning first to the plaintiffs’ claim that DOMA [Washington’s Defense of Marriage Act] was motivated by animus, we cannot agree that the only reason the legislation was enacted was because of anti-gay sentiment.  It is unfortunate that the dissents accept this argument . . . because it is demonstrably incorrect.  A substantial number—15—of the legislators who voted for DOMA in 1998 also voted to add sexual orientation to the laws against discrimination in 2006.  Even if some of these legislators may have had a “change of heart,” the far more likely explanation for the majority, if not all, is that they were not motivated by antigay sentiment in 1998 but instead were convinced for other reasons that marriage should not be extended to same-sex couples.  In assuming that everyone who voted for DOMA is a bigot, Justice Fairhurst’s dissent is not only wrong, it sadly oversteps the bounds of judicial review.[58]

The rights claim endorsed by the majority in Goodridge differs in a fundamental respect from other claims achieving civil status through democratic means.  Not any sustained public discussion, deliberated consensus, and authoritative ratification of a sovereign majority, but only a lawsuit, is all that backs the newly imposed marriage policy in Massachusetts.  Nowhere have the people of the Commonwealth directed the SJC to treat same-sex marriage as a civil right or defenders of traditional marriage as bigots.

As result of the SJC’s ruling, citizens from every walk of life stand condemned for harboring what the government must now consider to be intolerable beliefs equated to racism, not by a majority of their peers, but by four unelected judges who have arrogated to themselves the perquisites of sovereignty.  Democracy was usurped by the Goodridge decision, not upheld. 

Let’s “beat ‘em to the punch” to preempt public debate

When Thurgood Marshall and the NAACP planned a legal assault against racial segregation, democracy had already vindicated the principle thrust of their appeal to the courts—by passing the 13^th, 14^th and 15^th Amendments, the people had judged racism to be an evil that must be eradicated.   When Mary Bonauto and the Gay and Lesbian Advocacy and Defenders (GLAD) filed their lawsuit in the Goodridge case, their appeal to the courts sought not to vindicate democracy, but to bypass it in order to change a democratically accepted policy.  Limiting marriage to opposite-sex couples was not adjudged previously by the people to be an evil, but was and still is uniformly regarded as a matter of common sense.

Employing the tactic of “beat ‘em to the punch,” the advocates for same-sex marriage used the judiciary in Goodridge as a means to strengthen their position in, and perhaps even to knock out the possibility of, a Massachusetts referendum to uphold traditional marriage policy.  Preemption, not vindication, was and remains their goal.

In an article describing the strategy behind the Goodridge litigation, Mary Bonauto, lead attorney for the plaintiffs, revealed a critical objective.[59]  Alerted early on to efforts to put a constitutional amendment upholding the traditional definition of marriage before the people, the advocates for same-sex marriage calculated that a court case would give them crucial political leverage.

[W]e viewed an affirmative marriage case as an opportunity to frame the issues positively and in the voices of LGBT people. We also thought the best defense was the same thing that had moved us forward so far: shining a light (this time through a lawsuit) on the lives of the real people affected and the bedrock American principles of fairness and equality. We knew we had a window of opportunity: a constitutional amendment must be approved by two legislatures before it can be put out to the voters for ratification at a general election.

If the case were resolved successfully, then Massachusetts voters would have the chance to see for themselves that relationship recognition and marriage rights for LGBT people were fair before they voted on the question of taking away those rights. If we lost the case, there would be less impetus to vote in favor of an amendment. Even more importantly, many more people in the electorate would understand the harms to our communities from being denied relationship recognition and marriage rights, thus increasing pressure on the Massachusetts legislature to take steps to ameliorate the discrimination.[60]

Now that the Goodridge decision is on the books, same-sex marriage advocates argue that the marriage question should be treated as settled because the courts have ruled, and thus “it’s time to move on.”[61]  That is, the people must be denied an opportunity to exercise their sovereign authority because the courts, without any warrant from the democratic process, have taken that authority away from them on this issue.  If this is judicial tyranny, the advocates conclude, then in the words of Harvard’s Rev. Peter Gomes cited above, belying a distrust of the people, “let there be more of it.”   This makes a mockery of how civil rights are produced in a democracy, through the consent of the people, not the tyranny of judges.

Thus, a political coup would be achieved with the assistance of the judiciary if the door to the ballot is slammed shut.  The sovereign, the people, would be denied the opportunity to consider whether same-sex marriage deserves civil rights status and whether those who oppose it are bigots.  The Goodridge ruling would be used as an excuse to bypass the very source of civil rights in our system of government, the democratic process, in order to lock in a mandate of official intolerance towards those who support traditional marriage.   That mandate, imposed by unelected public servants in Goodridge, will cause serious and pervasive government persecution.

If Ballot Access Is Denied, Then Opposition To Same-Sex Marriage Will Be Punishable As Bigotry Without The People’s Input Or Consent. 

In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance—the institution of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here.  As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.  Majority Opinion in Goodridge case. [62]

Those who favor another vote on gay marriage are 21^st century crackers.  Editorial, Boston Phoenix [63]

I'm having a hard time coming up with any case in which religious liberty should win.  Prof. Chai Feldblum, Civil Rights Expert and Gay Rights Advocate at Georgetown University [64]

The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally.  The remaining question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision.  I think the answer will be no.   Marc D. Stern, Civil Rights Expert with American Jewish Congress [65]

When the majority in Goodridge asserted that “history must yield to a more fully developed understanding of the invidious quality of the discrimination” supposedly involved in traditional marriage policy, their words served as a warning.

When U.S. Senator Ted Kennedy (D-Mass.) accused backers of a federal marriage amendment of pushing “bigotry—pure and simple” because the amendment would limit marriage to a man and a woman,[66] and when media outlets equate VoteOnMarriage.org and other backers of the Massachusetts marriage amendment with the Ku Klux Klan, calling them “21^st century crackers,” [67] these words too are a warning. 

When the Religious Coalition for the Freedom to Marry released an “open letter” charging the Massachusetts Catholic Bishops with “promoting prejudice, intentionally or not” by campaigning for a marriage amendment at the state level, and urged them to stop speaking out, their words echoed the harsh refrain.[68] 

Indeed, every time supporters of same-sex marriage accuse the other side of bigotry and hate, they amplify the inevitable—if it is considered hate to believe that marriage is the union between one man and one woman, then policies and actions reflecting that belief must be punished.

And so the warning is this:  After Goodridge, opposition to same-sex marriage can not be tolerated in the Commonwealth and will have to be silenced.  As civil rights experts including Chai Feldblum, Marc Stern, and others predict,[69] the state’s interest in abolishing discrimination against “equal marriage” will be deemed overriding.  Religious freedom and common sense will suffer.

In short, words have consequences.  Once supporters of traditional marriage are branded as bigots and haters, then, as is the case with racial discrimination, government persecution must follow. 

What makes this official intolerance particularly unjust is that it will occur without the backing of democracy if the people in Massachusetts are barred from voting on marriage.  Before any segment of society is punished as if akin to racial bigots, the public should be heard.  Is traditional marriage policy a matter of common sense or is it hate?  That’s the issue that should be put to the people, and those who stand to be punished deserve the right to appeal to their peers.  In the end, persecution without representation denies democracy.

Equating traditional marriage policy with racism

A divided Supreme Judicial Court laid the groundwork in the Goodridge case for persecution against defenders of traditional marriage by equating traditional marriage policy with racial bias.  In her majority opinion, Chief Justice Marshall cited several court decisions dealing with racial discrimination which talked about the state’s obligation to eradicate racial prejudice.[70]  To know how supporters of traditional marriage will fare under the new legal regime dictated by the Goodridge decision, one need only examine how the law and society treats racists today.

The government opposes racism in a variety of situations, thus providing the conceptual framework to be used in the marriage context.  Constitutional amendments and civil rights statutes have caused public and private institutions, such as schools,[71] as well as private individuals,[72] to 1) abandon their race-based policies or conduct, 2) pay civil and criminal damages, and 3) forgo government benefits, such as tax-exemptions and public funds. [73]    

The push to eliminate racist practices was dictated by the vote of the people and their elected representatives, that is, by democracy itself.  After wrenching debate, the people decided to regulate themselves on matters concerning race, thus providing democratic warrant for aggressive measures against institutions and individuals.  As explained above, that is the way democracy works.  Again, no such public debate or democratic vote has preceded the redefinition of marriage. 

The objective of the aggressive civil rights measures described above is to eliminate racial bias as an intolerable evil.  This official approach in racial discrimination cases provides the roadmap for the way that support for traditional marriage policy will be punished.    

The coming persecution against defenders of traditional marriage

As a result of the Goodridge ruling, the law in Massachusetts will now have to treat the marriage doctrine of the federal government, of other states, and of society itself, recognizing marriage as the union between one man and one woman, as equal to a desire to harm persons, and thus an intolerable evil.  Consequently, the state government will have to penalize individuals and institutions which fail to recognize and uphold same-sex marriage in their policies and actions.

This persecution will be accomplished through the automatic expansion and application of any state law that prohibits discrimination based on sexual orientation or punishes any interference with civil or constitutional rights. 

The majority in Goodridge declared that limiting marriage to opposite-sex unions may reflect “persistent prejudices” against “persons who are (or are believed to be) homosexual,” that is, because of their sexual orientation.[74]  Thus, the majority reduced traditional marriage policy to a form of sexual orientation discrimination.   As a result, the refusal to recognize a marriage license or the married status of a same-sex couple will have to be included within the scope of harms that sexual orientation laws must address.[75]  And, of course, since the majority of the court declared same-sex marriage to be a constitutional right, the state civil rights laws are brought into play as well. 

These laws provide a range of enforcement mechanisms designed to punish and eliminate interference with civil rights.[76]  For example, the attorney general and private parties have the right to sue for damages and injunctive relief, and prosecutors can bring criminal charges against public and private institutions and against private individuals alleged to have obstructed the exercise of another’s civil rights.  Due to the wording and interpretation of the civil rights laws, any appeal to morality in defense of not recognizing same-sex marriage in an institution’s policies or an individual’s conduct will be deemed to be a form of coercive force interfering with the so-called civil right created by the Goodridge case.[77]

The harsh implications of the Goodridge ruling first came to light when justices of the peace were warned that the refusal to accommodate marriage license applications by same-sex couples would expose the officials to legal sanctions.  David Fried, the chief of enforcement at the Massachusetts Commission Against Discrimination, warned a gathering of justices of the peace the month before the Goodridge ruling went into effect that “[r]efusing to marry gay couples could leave justices individually liable, raising the possibility of punitive damages in court.”  If a justice could not comply, then he or she should resign.[78]

Soon after the Goodridge ruling, as if on cue, public school officials in Boston and Lexington informed teachers and parents about the new way the marriage debate is to be handled in the classroom for students.  Teachers must promote same-sex marriage as a civic virtue, and parents must be denied any recourse.  Teachers who object will be fired; parents who ask that their child not be indoctrinated will be refused.[79]

Then state officials trained their sights on adoption services.  Catholic agencies were told to assist adoptions by same-sex couples or get out of adoptions altogether.  Zero-tolerance forced the Boston Catholic Charities to shut down the largest and oldest adoption program in the state.[80]

These developments, presaged by the accusations of hate and bigotry by Senator Kennedy and other supporters of same-sex marriage, foretell the fate of those who disagree with them.  In the name of “marriage equality,” defenders of traditional marriage will be punished as severely as bigots in a broad array of settings if they do not give equal treatment to same-sex marriage.

Persecution will have broad impact

As a result of the Goodridge ruling, numerous entities including “schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses or services that operate by religious standards, like kosher caterers and marriage counselors” will have to toe the line.[81] 

In many instances, private entities cannot operate without a license, and the licensing agencies in Massachusetts may be obliged to enforce the state’s new marriage policy by refusing to license or accredit institutions that dissent from the vision of marriage enshrined in the Goodridge case.[82]  Further, many such institutions receive state funds and other official support to carry out key programs.   As indicated by the Catholic Charities situation in Boston, those resources may have to be denied to any institution that fails to accept same-sex marriage in its internal policies and customer services.[83]  Moreover, the whole question of tax-exempt status will be thrust to the fore.[84]

Individuals also will feel the impact.  For example, parents with children in the public schools may be forced to allow their children to be indoctrinated about the merits of same-sex marriage and the “invidiousness” of their parents’ belief in limiting marriage to opposite-sex couples.[85]  Voiced objections to same-sex marriage will be labeled as hate speech.