Chapter 4: Should Gay Marriage Be Legalized?
Same-Sex Marriage: An Overview
IT IS BETTER TO MARRY THAN TO BURN.—Paul, I Corinthians 7:9
The funny thing is, on the issue of same-sex marriage, both sides agree with Paul. In fact, advocates of same-sex marriage and their opponents concur that it is better to marry than almost anything else. They both embrace the idea that marriage is the bedrock of a stable society, and that it is the ideal method of civilizing wayward and wanton males, something every society must do. In short, hooray for till-death-us-do-part. The only problem is that both sides disagree vehemently on who should be allowed to take that vow.
Compared with, say, the federal deficit or welfare, the issue of same-sex marriage is not exactly a crisis in the Republic. But it has become a hot campaign issue because of a 1993 Hawaiian supreme court ruling that denying marriage licenses to gay couples may violate the equal-protection clause in the state constitution. Sending the case back to the trial court, the supreme court directed the government to show that it has a “compelling” state interest in maintaining the ban—a test it is unlikely to meet. Although the case is . . . on appeal in a state court in Honolulu, Hawaii will probably rule . . . that such marriages are permissible. Christian conservatives, in particular, are worried that if gay marriages are allowed in Hawaii, the Full Faith and Credit clause in Article IV of the U.S. Constitution would require...
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Government Should Not Recognize Same-Sex Marriage
The enduring significance of the institution of marriage was posed in three lines from Samuel Butler’s epic, Hudibras, well over three centuries ago: “For in / What stupid age or nation / Was marriage ever out of fashion?”
Well, we now know the answer to Butler’s query: Hawaii, 1996.
I was stunned to learn that Hawaii is close to giving legal recognition to homosexual marriages. It all began in 1991 when three homosexual couples sued the state of Hawaii, arguing that Hawaii’s exclusion of same-sex couples from the statutory definition of marriage was invalid either under the U.S. Constitution or the Hawaii Constitution. When the lawsuit goes to trial in the summer of 1996, a Hawaii trial court is expected to rule in favor of the couples. [The court legalized same-sex marriages in December 1996, ruling that banning the marriages was unjustified discrimination.]
The Definition of Marriage
This led me to think that I might have slept through one or more of my law classes at Georgetown University 20 years ago. So, I pulled out my 1968 edition of Black’s Law Dictionary to look up the legal definition of “marriage.” My memory did not fail me. The law dictionary defined marriage as “the civil status, condition or relation of one man and one woman united in law whose association is founded on the distinction of sex.” Wanting to be certain the intervening 20 years had not wrought an upheaval in...
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Marriage Is Not a Fundamental Right
The Hawaii Supreme Court could, if it rules in favor of same-sex marriages, plunge the United States into a constitutional pickle. [A Hawaiian trial court ruled in December 1996 that Hawaii could not prohibit gay couples from receiving marriage licenses.]
The full faith and credit clause of the Constitution reads as follows: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” At first glance, that would seem to seal the case. If gay marriages become valid in Hawaii, then gay couples from around the nation could fly there, be married and return home as husband and husband, or wife and wife, and the other 49 states would be obliged to recognize those marriages as valid.
Not a Basic Right
But the Constitution goes on to say, “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
A good many constitutional scholars think the second sentence opens the door to national legislation that could limit the legitimacy of same-sex marriages to Hawaii. The Defense of Marriage Act, which would do just that, is currently wending its way through Congress. [Bill Clinton signed the Defense of Marriage Act in September 1996.]
The arguments on behalf of same-sex marriage have been cast—as so many debates in America are—as a matter of “rights” and...
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The Purpose of Marriage Is Procreation
There is every likelihood that Hawaii’s Supreme Court will soon overturn that state’s prohibition on same-sex marriage. [A Hawaiian trial court legalized same-sex marriages in December 1996.] The court’s reasoning will be simple enough: Hawaii’s constitution forbids discrimination on the basis of sex, and for the state to deny the benefits of marriage to same-sex couples without demonstrating a “compelling state interest” does precisely that. Should Hawaii license same-sex marriage, other states may be bound to recognize those marriages under the Full Faith and Credit clause of the Constitution. The U.S. Supreme Court, it seems certain, will eventually be asked to rule on the constitutionality of the heterosexual exclusivity of marriage.
For the state to license same-sex unions will entail a fundamental reappraisal of the nature of marriage and the balance struck between rights of individual self-determination and the integrity of basic social institutions such as the family. American society has much to gain from a fair-minded debate about such questions, and much to lose if we retreat further from reasoning together about the nature and aims of our common life.
The Nature of Marriage
Whether there are compelling enough reasons to preserve the heterosexual exclusivity of marriage is a question that arises in the wake of profound changes in how we think about sexual morality, procreation, and marriage. Historically,...
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Same-Sex Marriage Will Degrade Marriage
The House of Representatives may have passed legislation . . . opposing gay marriage, but the people will soon be trumped by the courts. In September the judges of the Hawaii Supreme Court are expected to legalize gay marriage. Once done there, gay marriage—like quickie Nevada divorces—will have to be recognized “under the full faith and credit clause of the Constitution” throughout the rest of the U.S.
Gay marriage is coming. Should it?
For the time being, marriage is defined as the union 1) of two people 2) of the opposite sex. Gay-marriage advocates claim that restriction No. 2 is discriminatory, a product of mere habit or tradition or, worse, prejudice. But what about restriction No. 1? If it is blind tradition or rank prejudice to insist that those who marry be of the opposite sex, is it not blind tradition or rank prejudice to insist that those who marry be just two?
In other words, if marriage is redefined to include two men in love, on what possible principled grounds can it be denied to three men in love?
This is traditionally called the polygamy challenge, but polygamy—one man marrying more than one woman—is the wrong way to pose the question. Polygamy, with its rank inequality and female subservience, is too easy a target. It invites exploitation of and degrading competition among wives, with often baleful social and familial consequences. (For those in doubt on this question, see Genesis:...
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Homosexual Love Is Not True Love
Love, which characterizes the essence of God and, as Dante states, moves the sun and the stars, is probably the world’s most dangerous euphemism. What is labelled as love can very easily turn out to be something far less noble: lust, self-indulgence, infatuation, or even a political strategy. Some of the strangest things that take place are done in the name of love.
What Is Love?
How do we know, then, that what we call “love” really is love? This is one of the fundamental questions that has challenged the minds of the great philosophers. Aristotle argued that love must promote the good of the beloved. Augustine taught that it must be consistent with the love of God. Aquinas spoke of it terminating in a union with the loved one.
Taking the thoughts of these three philosophers collectively, we can depict love as an act which promotes the good of another in a way that not only is harmonious with our love for God, but also with the love we have for ourselves and our loved ones with whom we seek to be united. Love is not love, therefore, unless it properly orders and balances ourselves, our loved ones, nature, and God. Love is not merely an impulse, it is an intensely realistic and balanced set of relationships that promotes the good of all concerned.
The image of marriage described in Genesis 1:28, in which man and woman become two-in-one-flesh and are commanded to be fruitful and multiply, accords on the highest...
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Homosexuals Should Be Allowed to Marry
Marriage may be for the ages—but it changes by the year. And never, perhaps, has it changed as quickly as since the 1960s. In western law, wives are now equal rather than subordinate partners; interracial marriage is now widely accepted both in statute and in society; marital failure itself, rather than the fault of one partner, may be grounds for a split. With change, alas, has come strain. In the 25 years from 1960, divorce rates soared throughout the west— more than sextupled in Britain, where divorce appears inevitable for the world’s most celebrated marriage, that of Charles and Diana Windsor. [Their divorce was granted in the summer of 1996.] Struggling to keep law apace with reality, Britain’s Tory government is even now advancing another marriage reform, seeking, on the whole sensibly, to make quick or impulsive divorce harder but no-fault divorce easier.
That, however, is not the kind of reform which some decidedly un-Tory people are seeking—and have begun to achieve. Denmark, Norway and Sweden now allow homosexual partners to register with the state and to claim many (though not all) of the prerogatives of marriage. The Dutch are moving in the same direction. In France and Belgium, cities and local governments have begun recognising gay partnerships. And, in the American state of Hawaii, a court case may legalise homosexual marriage itself. [A Hawaiian court legalized homosexual marriage in December 1996.]
As of today,...
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Same-Sex Marriage Is Fair
The right wing gets it: Same-sex marriage is a breathtakingly subversive idea. So it’s weirdly dissonant when gay neocons and feminist lesbians publicly insist— the former with enthusiasm, the latter with distaste—that same-sex marriage would be a conservative move, confining sexual free radicals inside some legal cellblock. It’s almost as odd (although more understandable) when promarriage liberals ply the rhetoric of fairness and love, as if no one will notice that for thousands of years marriage has meant Boy+Girl=Babies. But same-sex marriage seems fair only if you accept a philosophy of marriage that, although it’s gained ground in the past several centuries, still strikes many as radical: the idea that marriage (and therefore sex) is justified not by reproduction but by love.
Changing the Message
Sound like old news? Not if you’re the Christian Coalition, the Pope or the Orthodox rabbinate, or if you simply live in one of many pre-industrial countries. Same-sex marriage will be a direct hit against the religious right’s goal of re-enshrining biology as destiny. Marriage is an institution that towers on our social horizon, defining how we think about one another, formalizing contact with our families, neighborhoods, employers, insurers, hospitals, governments. Allowing two people of the same sex to marry shifts that institution’s message.
That’s why the family-values crowd has trained its guns on us, from a...
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Gay Marriage Will Not Degrade Marriage
It wasn’t that we hadn’t prepped. Testifying on the Hill was a first for me, and those of us opposing the “Defense of Marriage Act” had been chatting for days about possible questions. But we hadn’t quite expected this one. If a person had an “insatiable desire” to marry more than one wife, Congressman Bob Inglis of South Carolina wanted to know, what argument did gay activists have to deny him a legal, polygamous marriage? It wasn’t a stray question. Republican after Republican returned gleefully to a Democratic witness who, it turned out, was (kind of ) in favor of polygamy. I hastily amended my testimony to deal with the question. Before long, we were busy debating on what terms Utah should have been allowed into the Union and whether bisexuals could have legal harems.
Riveting stuff, compared to the Subcommittee on the Constitution’s usual fare. But also revealing. In succeeding days, polygamy dominated the same-sex marriage debate. Both Bill Bennett and George Will used the polygamy argument as a first line of defense against same-sex marriage. In the Washington Post and Newsweek, Bennett in particular accused the same-sex marriage brigade of engaging in a “sexual relativism” with no obvious stopping place and no “principled ground” to oppose the recognition of multiple spouses.
Well, here’s an attempt at a principled ground. The polygamy argument rests, I think, on...
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Same-Sex Marriage Would Be Good for Society
Same-sex marriage is good for gay people and good for America, and for the same reason: It civilizes gays and it civilizes America.1 Start with the former. For most of the twentieth century, lesbians, gay men, and bisexuals have been outlaws. The law relevant to us was the criminal code—not just sodomy prohibitions, which virtually defined us, but also disorderly conduct, lewdness, and vagrancy statutes, infractions of which led to employment and licensing penalties. The law relevant to us today is found in the civil code, most prominently in antidiscrimination statutes but increasingly in family law as well. Virtually no one in the gay and lesbian community would deny that this “civilizing” shift in the law reflects enormous progress and that such progress is incomplete until gay people enjoy the same rights and responsibilities as straight people. Marriage is the most important right the state has to offer, in part because being married entails dozens of associated rights, benefits, and obligations under state and federal law. As a formal matter, law’s civilizing movement will not be complete until the same-sex married couple replaces the outlawed sodomite as the paradigmatic application of law to gay people.
Law’s gradual decriminalization of homosexuality finds a parallel in gay lives. As we shed our outlaw status, we are increasingly integrated into (as opposed to being closeted from) the larger society and its...
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Gay Marriage Would Not Harm Children
The Hawaii legislature has directed the State’s attorneys to use the “procreation” argument in their case against same-sex marriage: Since a man and a woman comprise the biological procreative unit, only heterosexual couples need the protection that marriage provides. [A Hawaiian trial court legalized same-sex marriage in December 1996.]
Four million lesbian and gay parents are dumbfounded. Are our eight million children not in need of protection?
Gays Are Parents
Same-sex couples are not biological procreative units, but they are nevertheless parents. They raise children in families where, most often, one parent is related only by devotion and hard work to the biological children of the other. The children rely on them, often calling both women “Mom,” or both men “Dad.” But because they can’t get married, nonbiological parents feel the ever present danger that a court may not even view them as relevant parties in a custody decision if the biological parent should die or the relationship end in separation. And their children live with the ongoing insecurity that losing one parent in a tragedy might simultaneously mean losing their other parent in a courtroom.
In the summer of 1996, a Michigan court ignored the pleas of a nonbiological mother when the biological mother died of ovarian cancer. The judge even ignored the wishes of the two adolescent boys, raised for as long as they could remember by their...
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