Jewish World Review Nov. 17, 2003 / 22 Mar-Cheshvan, 5764

Jeff Jacoby

Jeff Jacoby
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The timeless meaning of marriage | When the New Hampshire Supreme Court ruled in a divorce case recently that a married woman who had a lesbian affair had not committed adultery in the eyes of the law, one disappointed party was GLAD, the Gay & Lesbian Advocates & Defenders. In an amicus brief, GLAD had taken the side of the betrayed husband, who wanted to be divorced from his wife not on the neutral grounds of "irreconcilable differences," but on the specific fault ground of adultery.

GLAD exists, as its name announces, to defend the legal interests of gays and lesbians, so why didn't it support the women's wish not to have their same-sex affair legally stigmatized as "adultery?" Because in GLAD's view it is even more important that homosexual activity should be treated as equal in every way to heterosexual activity. "Gay and lesbian relationships are as significant as non-gay ones," argued GLAD's brief, "and therefore pose the same threat to the marital union."

The court rejected that argument for the straightforward reason that "the plain and ordinary meaning of adultery" under New Hampshire law is sexual intercourse between a married man and another woman or a married woman and another man. That is what adultery has meant "for over a hundred and fifty years [to] judges, lawyers, and clients" in New Hampshire, the court said; until the state legislature changes that definition, that is what it will continue to mean.

The justices didn't mention the churning controversy over same-sex marriage in their brief opinion, and their decision is likely to have little bearing on it. But the implication of their ruling ought to be clear to other courts — like the Supreme Judicial Court of Massachusetts — that are considering the issue.

After all, if adultery has always been understood as involving a man and a woman, how much more so has marriage always been an opposite-sex institution? As a matter of simple judicial integrity, any court asked to redefine marriage to encompass same-sex couples should refuse to do so. If the timeless definition of marriage is going to be legally changed, the change should come from lawmakers — not from judges with no mandate to legislate from the bench.

Indirectly, the New Hampshire case also underscores the weakness of one of the same-sex marriage lobby's favorite arguments: that it is as wrong to deny marriage to gay and lesbian couples today as it was to bar interracial couples from marrying in the Jim Crow South.

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The comparison is made so often it has become a cliche. Here, for instance, is Kenneth Jost, an editor at Congressional Quarterly, writing in Legal Times last month: "Tradition alone cannot justify the ban on same-sex marriages. Laws against interracial marriage also had a firm place in US history, but the Supreme Court unanimously ruled them unconstitutional in 1967." Democratic presidential hopeful Carol Mosely-Braun put it succinctly at a candidates' forum in Oklahoma: "I don't see any difference between interracial marriages and same sex marriages."

In fact, the difference between interracial marriage and same-sex "marriage" is enormous.

The anti-miscegenation laws that made it illegal for blacks and whites to marry were evil and contemptible because they perverted the age-old definition of marriage by adding a wholly irrelevant ingredient: race. Skin color has nothing to do with the institution of marriage. The laws that barred men and women from marrying across the color line were intended to bolster segregationism and white supremacy, not matrimony. Indeed, it was precisely because race is not a core element of marriage that laws had to be passed to make it one.

By contrast, no law has ever been required to limit marriages to members of the opposite sex. It would take a radical legal innovation to remove that limitation. The prohibition on same-sex marriage isn't an analogue to the anti-miscegenation statutes of old; it is the opposite. Race is immaterial to marriage, but sex — gender — goes to its very essence. And just as it was a perversion of marriage for the law to force race into the equation, it would be a perversion for the law to force gender out of the equation.

To go back to the New Hampshire case, suppose the betrayal had been not a lesbian affair but an interracial one in a time and place when anti-miscegenation laws were in force. Would any court have doubted for a moment that adultery had taken place? Of course not: The race of the parties would have made no difference. The legal significance of their behavior would have turned on their different sexes, not their different colors.

And if that is true of adultery, it is infinitely truer of marriage.

The purpose of marriage is to unite the fundamental opposites of male and female — the only kind of union that can produce new life. Wherever human society has developed, marriage has developed too, and always for the purpose of bridging the divide between men and women. We look back with scorn at those who twisted the law to make marriage serve their racist agenda. So will our descendants look at us if we yield to the demand that the marriage laws be twisted to suit a radical sexual agenda. Gays and lesbians must be treated with dignity and compassion, but we must also insist on a universal truth: Marriage is for joining what is different, not for adding like to like.

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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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