02/13/2004

Observation on the Gay Marriage Constitutional Issue

The Supreme Court in MA finds it hard to see the denial of true marriage in favor of civil unions to homosexual couples as anything but "separate but equal" warmed over. I understand the legal reasoning going on here, but I think it is important to note that American law has never treated gender like race under the law. The famous "Equal Rights Amendment" to the constitution was never ratified by the states. The constitution does not, in principle, forbid treating men and women differently under the law. A good example of this is that it violates no one's constitutional rights to draft young men into the military, but to not require young women to register for this kind of service. Using the MA court's legal reasoning, it would be unfair to have a situation where men are more likely to be drafted than women, much less a situation where only men can be drafted or men are drafted to combat and women to non-combat military roles. Thus, it simply isn't the case that the law has to view a contract, like Marriage, as being the same whether between two women or a man and a woman. In other words, it is permissible for there to be types of contracts that can only be made between a man and a woman.

Now, you might disagree with the law's taking account of gender differences, but it does, and unless we're comfortable drafting young women into military service, then we need to be consistent here.

Another factor here is that the law is fair with respect to treating all men the same and all women the same. All men may marry a woman, and all women may marry a man. Homosexual men and heterosexual men, then, are treated equally with respect to their ability to enter into marriage with a woman of a certain age to whom they are not closely related by blood.

Sexual ethics is going to be in evidence in this debate, and there are a variety of positions on sexual ethics that exist in the American court of opinion. But keep in mind that while this current debate is challenging the notion that marriage is only between a man and a woman, future debates may challenge the notion that marriage is only between two persons, or that marriage can be limited with regard to the age of the participants, or the familial relations of the participants, etc. In principle, if we change the definition of marriage to include other kinds of relationships than between two consenting, relatively unrelated, adults of different sexes, then any adjective or adverb of that phrase can be challenged by someone with a particular ethical conviction.

That's why, it seems to be the best compromise to allow the formation of a special type of contract that grants visitation rights, property rights, etc. to people engaged in a certain kind of non-married relationship. I could see two elderly sisters living together and forming that kind of contract so they can more effectively care for each other as they age. It would have the result of giving homosexuals the ability to form a similar contract for certain advantages. I could also see the husband of a married couple forming a similar contract with his mentally handicapped brother who lives with them. To me, this gets to the functional, life-impacting complaints of homosexuals in America without forcing a sea-change in sexual ethics that would result in, among other things, something tantamount to a new equal rights ammendment with its attendant complications.

I know that, emotionally, a homosexual is going to grant the practical benefits of a functionally equivalent contract such as a civil union. But the real issue for many homosexuals is the question of legitimacy. The inability to marry, in gay presentations, is a tacit declaration of the illegitimacy of homosexual love. Homosexuals seem to view the ability to marry as a synecdoche for moral acceptance of homosexuality. They are asking the legal system to provide the approbation that humans (living now and historically) have simply not wanted to publicly grant to homosexuality both for religious and other reasons.

But the law is not "turtles all the way down". Eventually, civil law meets moral law, religious law, and even the laws of nature, and this just happens to be a situation where a group of people committed to the morality of something that most people are against stand up and ask for official recognition that the majority is just not ready to provide, even based upon arguments from fairness. Because in all fairness, the debate isn't over the benefits of marriage (civil unions could handle those practical matters); the debate is over the morality of homosexuality and to what degree the civil government should provide a kind of imprimatur upon sexual relationships between people of the same sex.