Surprisingly, Boston Legal raises a few complicated and interesting questions here. Legal recognition of intimate privacy and legal recognition of non-procreative unions are the two precedential pillars supporting the infrastructure of marriage equality in the courts.
The Supreme Court's seminal decision in Lawrence v. Texas stood on the shoulders of a so-called right to privacy in intimate situations derived from cases like Griswold v. Connecticut, which overturned a contraception ban by saying that married people should be able to do what they want in the "marital bedroom"; Eisenstadt v. Baird, which said the right to make decisions about sexual conduct extended to unmarried couples who ran afoul of contraception bans; Roe v. Wade, which made sure an individual women could make her own decisions about her sexual and procreative destiny.
And, as Justice Kennedy stated in Lawrence, "individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." A liberty that has been extended to unmarried persons, as well.
So, why did the fictional gay community in Boston Legal have its knickers in a twist?
Because the Shatner-Spader wedding is a sham. At its core, it's a way to stop the government from taking a huge chunk of Shatner's estate. It makes us uncomfortable because this is not what we had in mind. Those of us who advocate on behalf of marriage equality do so in the language of love and equality. But sometimes we fail to realize that those values are not joined at the hip. Sometimes, treating people equally requires us to eschew other deeply held values, like when the ACLU supports the Westboro Baptist Church's First Amendment right to spout hate at military funerals. We may want to bathe in Purell when we're done, but we still dive into the mud.
By the way, here's how the judge, played by the underused Roma Maffia, decided this case:
Judge: I do find this union to be primarily based on money. I also agree with Mr. Pinard. This is exactly the kind of exploitation that the Christian Right and others feared. But I also recognize that people marry for all sorts of reasons. It's not the government's place to ask why. Mr. [McGarry], there are many gays to marry heterosexuals, also gays to marry gays of the opposite sex because they want to start a family, be co-parents. Nothing to do with romantic love. I hardly think you think the government should step in and stop that. Same-sex unions are legal in Massachusetts. Your motion for an injunction is denied."
