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Thursday, March 21 , 2019, 1:17 am | Fair 51º


Susan Estrich: The Future of Marriage

Today show and Judge Tauro take us in the right direction on same-sex marriage

Maybe it’s just a coincidence that the Today show and U.S. District Judge Joseph Tauro of Massachusetts reached essentially the same conclusion on the same day. But I’m one of those people who believe there is no such thing as a coincidence. No, I’d call it a trend in the right direction.

Susan Estrich
Susan Estrich

The Today show, facing protests that its “Modern Day Wedding” contest was excluding same-sex couples, decided to include them. “We’re producers, not politicians,” executive producer Jim Bell said. “All we want is a good wedding.”

Judge Tauro’s explanation took longer, but it came to the same point. In a nice twist, Tauro hoisted states rights conservatives on their own petards, finding that the federal government had no right to limit Massachusetts’ decision to treat all marriages equally by denying federal benefits to legally married same-sex couples. He then went on to hold that the federal restrictions on benefits are themselves unconstitutional because they are applied unequally.

“We want to be inclusive,” Bell said. “We want to be open. We want to be fair. I’m glad we’re doing the right thing.” Ditto for Tauro. While constitutional law scholars were debating whether Tauro’s finding that defining marriage is a state’s right could be squared with his holding that the federal government violated the equal protection clause with its own definition (I think they can), the bottom line is the same: fairness.

There are many in the gay community who wish the gay marriage issue would go away. Of all the things to fight about, some gay friends joke. Now we can get divorced like everyone else. The only people who benefit from gay marriage, the joke goes, are the gay divorce lawyers. More seriously, many have wondered whether taking on the sacred and at least semi-religious issue of marriage made sense when other basic issues remain unaddressed.

But you don’t always get to choose your issues. Sometimes they choose you. The courts may have started the battle, in states such as California and Massachusetts, but once joined, it is not going away.

Even as Californians await a decision in federal court here as to the constitutionality of Proposition 8 (which overturned this state’s Supreme Court decision holding the prior ban on gay marriage unconstitutional), the Massachusetts decision all but ensures the issue is headed to the Supreme Court, especially if either one of Tauro’s decisions is upheld.

And how will the Supreme Court vote? It depends. It depends on how the issue is framed, who is sitting in the room and how long it takes to get there.

But of this I am sure: It may be later or sooner, it may be in this term or a decade or two down the road, but there will come a day when people will look back and wonder what all the fuss was about.

Marriage, as a matter of law, is about two people making a fundamental commitment to each other, which carries with it both rights and responsibilities. Above a certain (young) age, it doesn’t matter how old they are, or whether they plan to or do have children; it doesn’t matter what race they are, or what religion they are — or what sex they are. All of those things may and should and do matter to the individuals making the personal decision. But like other personal decisions, they are not the business of the state.

True conservatives, and on this I am certainly one, understand that ours is a system of limited government, which protects the privacy and liberty of the individual to make his or her own decisions and even his or her own mistakes.

Marriage? It should be up to you. A good wedding is a wedding where two people love each other and commit to each other. Period.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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