'Clear and Present Danger' to Marriage in Mass. Says Constitutional Law Professor Dwight Duncan

 June 2001

Constitutional Law Professor Dwight G. Duncan warned the legislature that marriage is threatened in Massachusetts in the following testimony.

Thank you for the opportunity of testifying this afternoon. My name is Dwight Duncan. I am an associate professor of constitutional law at Southern New England School of Law. I co-authored a recent law review article on the lack of historical precedents for same-sex marriage, and filed amicus briefs in support of the near-universal understanding of marriage - that is, a union between a man and a woman - in the Vermont case, as well as the Hawaii case.

My point is to explain why it is necessary for the General Court to go on record and expressly reaffirm what has been obvious until now, that marriage is between a husband and wife. Other relationships, however laudable or legitimate they may be, are no marriage nor the equivalent of marriage.

There is a clear and present danger to our understanding of marriage, which threatens to reduce it to a form of friendship recognized by the police. Just last month the Gay, Lesbian Advocates and Defenders (GLAD) filed suit in Suffolk Superior Court to require the issuance of marriage licenses to couples of the same-sex.

The suit is premised on the Massachusetts Constitution. Of course, our shared understanding has been that marriage is between a man and a woman, but in Massachusetts you have to go back to an 1810 case, Inhabitants of Milford v. Inhabitants of Worcester, 7 Mass. 48, 51 (1810), for a clear statement of the obvious: "[Marriage] is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife."

My concern is that judges may feel free to tamper with such old common law precedent. Unless there is a clear and contemporary statement from the legislature of what marriage is, courts will fill in the blank, using the judges' own sense of what liberty and equality entail. 

Up until now marriage has been the favored framework, in a legal and moral sense, for the expression of sexual intimacy, as well as the begetting, and raising, of children. Respect for the separation of powers, and for democracy itself, requires that marriage, a matter so important for the future of society and its children, should not be radically redefined and reconfigured by elites in the courts, academia, and the media.

The Massachusetts Supreme Judicial Court recognized as much in the domestic partnership case, Connors v. City of Boston, 430 Mass. 31 (1999), in noting, "We recognize a family may no longer be constituted simply of a wage-earning father, his dependent wife and the couple's children.

Adjustments in the legislation to reflect these new social and economic realities must come from the Legislature." If the legislature does not express the people's will, you should not be surprised when the courts substitute theirs.

The ersatz marriage lawsuit brought by GLAD is probably the strongest reason why the legislature must speak on this issue now. Section A speaks to the definition of marriage "as a legal relationship between one man and one woman."

There are other reasons which necessitate going further, into Section B, which clarifies that "Any other relationship shall not be recognized as a marriage, or its legal equivalent, or receive the benefits exclusive to marriage in the Commonwealth of Massachusetts as a matter of public policy." The 1810 Milford case had made the same point:  "[T]o no other marriage are incident the rights and privileges secured to husband and wife, and the issue of the marriage." 7 Mass. at 52.

But there is a new development that challenges that understanding, which is the more than 121 Massachusetts couples that have entered into civil union status in Vermont. Any day now, our courts will be seeing attempts to import Vermont's marriage-in-all-but-name status. A statement of public policy that says non-marital relationships should not be considered the "legal equivalent" of marriage will protect against Massachusetts being forced to recognize Vermont civil unions.

Further, as of April 1, 2001, same-sex "marriage" as such is now legal in the Netherlands, the only place in the world where this is true. The law requires that one of the parties be a resident of the Netherlands, but there is nothing to prevent the other party from being a Massachusetts resident.

Ordinarily, under comity and choice of law principles, a marriage validly entered into anywhere is valid everywhere. There is a public policy exception to this rule, which allows states with a public policy against alternative forms of marriage to not recognize them, but unless Massachusetts enacts the Protection of Marriage Bill, there would be no clear statement of public policy against such recognition by the courts of the Commonwealth.

The reference in Section B to the "benefits exclusive to marriage" is intended to preclude the automatic carry-over of the legal incidents of marriage to other groupings. An example would be the spousal testimonial immunity.

Adoption, however, since it is available to single persons in the Commonwealth, would not be restricted. The provision would not prevent the legislature from unbundling legal incidents of marriage and granting them to more generally defined groups. An example would be bereavement leave for state and city of Boston employees, which has already been extended more widely and thus is not any longer a "benefit exclusive to marriage."

In sum, if marriage, however endangered and fragile it has become in practice, is still to be valued and cultivated in our society, it is imperative that this legislature enact the Protection of Marriage Act. Some would call it discriminatory. But it discriminates only in the sense of favoring marriage as it has always been understood and fostering domestic arrangements that provide children with both a mother and a father.