The Mahatma and Ms. Poritz

Mahatma Gandhi said, “In matters of conscience, the law of majority has no place.”

And Marriage Equality is a matter of conscience. It is a fundamental right that should be the law of the land.

I must hearken back to the Lewis v. Harris decision, where Chief Justice Poritz was way head of her time. The Chief Justice wrote her own dissent, and called for same-sex unions to be called “marriage”, and not the made-up construct of ‘civil unions’. For those Senators and Assembly members considering the issue of marriage equality—here are some things Chief Justice Poritz had to say, that may help make the issue more clear.

“I can find no principled basis, however, on which to distinguish those rights and benefits from the right to the title of marriage, and therefore dissent from the majority’s opinion insofar as it declines to recognize that right among all of the other rights and benefits that will be available to same-sex couples in the future.”

“Under the majority opinion, it appears that persons who exercise their individual liberty interest to choose same-sex partners can be denied the fundamental right to participate in a state- sanctioned civil marriage. I would hold that plaintiffs’ due process rights are violated when the State so burdens their liberty interests.”

“[The plaintiffs] ask to participate, not simply in the tangible benefits that civil marriage provides — although certainly those benefits are of enormous importance — but in the intangible benefits that flow from being civilly married.”

[Quoting from Chief Justice Marshall, writing for the Massachusetts Supreme Judicial Court], “Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

“When we say that the Legislature cannot deny the tangible benefits of marriage to same-sex couples, but then suggest that ‘a separate statutory scheme, which uses a title other than marriage,’ is presumptively constitutional, we demean plaintiffs’ claim. What we ‘name’ things matters, language matters.”

“By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.”

“Of course there is no history or tradition including same-sex couples; if there were, there would have been no need to bring this case to the courts….‘[t]he argument is circular: plaintiffs cannot marry because by definition they cannot marry.’ "

“…if a State passed a civil union statute for same-sex couples that paralleled marriage, it would be sending a message that these unions were in some way second class units unworthy of the term 'marriage'[,] . . . that these are less important family relationships.”

“It is no answer that same-sex couples can be excluded from marriage because ‘marriage,’ by definition, does not include them. In the end, ‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning.’”

“…Loving teaches that the fundamental right to marry no more can be limited to same-race couples than it can be limited to those who choose a committed relationship with persons of the opposite sex. By imposing that limitation on same-sex couples, the majority denies them access to one of our most cherished institutions simply because they are homosexuals.”

“New Jersey’s statutes reflect both abhorrence of sexual orientation discrimination and a desire to prevent same-sex couples from having access to one of society’s most cherished institutions, the institution of marriage.”

“In any case, it is clear that civil marriage and all of the benefits it represents is absolutely denied same-sex couples, and, therefore, that same-sex couples’ fundamental rights are not simply burdened but are denied altogether.”

“The question of access to civil marriage by same-sex couples “is not a matter of social policy but of constitutional interpretation.” Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004). It is a question for this Court to decide.”

Three Questions for America, Professor Ronald Dworkin says, ‘…We can no more now create an alternate mode of commitment carrying a parallel intensity of meaning than we can now create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables two people together to create value in their lives that they could not create if that institution had never existed.”

“On this day, the majority parses plaintiffs’ rights to hold that plaintiffs must have access to the tangible benefits of state-sanctioned heterosexual marriage. I would extend the Court’s mandate to require that same-sex couples have access to the “status” of marriage and all that the status of marriage entails.”

So, if Chief Justice Poritz were able to give testimony to the Legislature, she might share her thoughts in this way.

The Mahatma and Ms. Poritz