Tuesday, May 11, 2004

Weighing in on the Gay Marriage Debate

Since last summer when the issue of marriage for gays and lesbians moved into the mainstream arena courtesy of Appellate Court in Ontario, Canada and the Supreme Court of the U.S., I've avidly read and collected articles and editorials on both sides of the subject. March 18, 2004, my local paper, the Arkansas Democrat-Gazette, which frequently publishes Republican talking points under the headline "Editorial" published this screed on its opinion page. After reading it, I was incensed and spent the entire day composing my response. Fortunately, when you're typing madly at a computer console, you're boss can't tell if you're working or not if he doesn't see the screen.

Here is the "editorial" in quotes followed by my reply:

More light, less heat
And leave the Constitution out of it
Arkansas Democrat-Gazette, March 18, 2004

REMEMBER when talk of a gay marriage evoked images of old-time movie stars William Powell and Myrna Loy romping through another Nick-and-Nora Charles mystery—with their little dog Asta happily yapping along?

If so, you're way behind the weird times. In this 21 st and very confused Century , it may be necessary to change the law of the land in order to spell out what was once simply understood: Marriage is a union between man and woman; one man and one woman, it was once unnecessary to add.

Now the country is about to make a federal case out of Gay Marriage. The issue is wending its way through the courts even now. And an amendment to the United States Constitution is now in the works solemnly repeating the dictionary definition of marriage.

It's all because a state supreme court in Massachusetts, or at least four-sevenths of it, stretched the Equal Protection clause beyond credulity, common sense, and meaning in general. The result, at least in the Commonwealth of Massachusetts, is that marriage is no longer to be considered a holy estate to be entered into "reverently, discreetly, advisedly, soberly, and in the fear of God," to use the quaint language of the Book of Common Prayer. Instead, those four judges in the majority ruled that getting married is more like applying for a driver’s license—only without any test. Anyone may apply, and the state may not discriminate against homosexuals who want to marry each other.

The next question is whether all the other states are obliged to give the Bay State’s new form of marriage Full Faith and Credit, to quote the constitutional formula.

Not even the federal Defense of Marriage Act, we're warned, will be enough to save the old meaning of marriage. Hence the rush to amend the Constitution of the United States to protect the traditional meaning of marriage--even before the courts have decided whether all the states have to recognize Massachusetts' novel definition of it.

Who knows, by the time this dispute goes through the courts, the people of Massachusetts may have decided to amend their state constitution, overruling their supreme court and saving all of us a lot of trouble. That’s what the people of Hawaii did when gay marriages were briefly legal there.

Some of us regard the U.S. Constitution as a kind of sacred covenant itself, and believe any changes to it should be made only reverently, discreetly, advisedly, soberly, and, yes, in fear and awe. Which is why we’d rather wait and see whether a constitutional amendment is necessary before adopting one.

Our first rule in these matters is the same as Hippocrates’—do no harm. To federalize the question, and deny each state its own marriage laws, strikes us as doing considerable harm to the whole federalist principle that informs the Constitution. Whether this new uniformity is achieved because of a rash decision by one state’s judiciary or the national overreaction to it.

So long as Massachusetts does not force the rest of us to go along with its supreme court on this issue, surely the country can abide this exercise of states’ rights, or even of a state’s wrongs. It is only when such "marriages" in Massachusetts become the law in Arkansas, and in the rest of the Union, that tolerance becomes tyranny.

The notion that there is some "right’’ to marry—whether to marry someone of the same sex, or several persons of the opposite sex, or one’s own brother or sister or father or mother, or even a pet (poor Asta!)—strikes us as quite an advanced idea, all right. It is advanced beyond all reason, let alone custom, tradition, and what the Declaration of Independence calls the laws of Nature and of Nature’s God.

But before rushing to amend our federal and state constitutions, let’s ascertain what the law really is—through the usual, deliberate judicial process. If to wed in haste is to repent at leisure, changing a constitution in haste invites the same fate.

Some states might like to follow Massachusetts’ example, while others would deny homosexual unions any recognition. Still others—the most sensible and fair, we would submit—will offer their citizens some form of domestic partnership or civil unions. Not just homosexuals need apply. A civil union might be just the thing for elderly sisters who live together, or old friends who want to share their financial obligations and benefits. The structure of these new arrangements could be as varied as the states of the Union. It’s a big country. There is no reason to make it a uniform one. That’s the genius of states’ rights.

But at the moment, a number of states are rushing to amend their constitutions in order to preserve the traditional definition of marriage. It’s become a fad, much like leisure suits and bell-bottoms back in the more than slightly ridiculous Seventies.

NOT EVEN Arkansas, once safely tucked away in flyover country, is immune to the national fashion. Our attorney general has just certified the description of a proposed amendment to the state constitution that will appear on the ballot in November if enough voters sign the petitions for it.

This proposed amendment defines marriage as "the union of one man and one woman," essentially repeating current state law. Why it’s necessary to add such an amendment to Arkansas’ already over-amended constitution escapes us. If the Arkansas statute defending the traditional meaning of marriage proves unconstitutional in some federal court, then so will this constitutional amendment. Just as the seggish constitutional amendments of the Orval Faubus-Jim Johnson era proved pointless. (Thank goodness.) This new amendment is less a change in Arkansas law than a political gesture.

More worrisome is some of the language in the text of the proposed amendment. It would not only bar homosexual marriages in this state, but deny any "legal status for unmarried persons which is identical or substantially similar to marital status. . . ." That language comes too close to barring civil unions.

Do we really want to deny homosexual couples inheritance rights, pension benefits, and all the other mutual protections a humane law would grant?

If this state had a responsible legislature (and if pigs could fly) legislators even now would be working up a law to govern civil unions. It could be modeled on, say, Vermont’s. That way, the traditional meaning of marriage would be preserved, while the benefits of a financial and legal union would not be denied to people who want to be considered an economic unit. Which would be a reasonable compromise. But in today’s emotional climate, such a solution would be considered unspeakably sensible.

March 18, 2004
To the Editor:

Never in my life have I seen such an insulting and ill-reasoned defense of the contemporary majority view of marriage as in the editorial "More Light, Less Heat" (March 18, 2004). One thing the editorial board stated correctly is the assertion that the rush to codify marriage as a specifically heterosexual institution is hasty and ill-advised. Also stated correctly is that this is a battle for the definition of marriage rather than its sanctity. But let us not be mistaken, this attempt to legislate the meaning of marriage is about political and sociological power and ensuring that a significant minority of the population (i.e., homosexuals) remain in a lower status, effectively disenfranchised, than the majority.

In its opinion overturning the ban on gay marriage, the Canadian Appellate Court in Ontario stated, "same-sex couples are capable of forming long, lasting, loving and intimate relationships." Indeed, they long to do so. It was impossible to overlook the recurring profile of same-sex couples applying for marriage licenses in San Francisco. Many, if not most, had been in a relationship for numerous years and took very seriously their commitment to each other, no doubt made "reverently, discreetly, advisedly, soberly, and in the fear of God," to make equal use of the quaint language of the Book of Common Prayer. To suggest that gays and lesbians, most of whom can only dream of marriage at this moment, will take lightly the right to publicly affirm their commitment by comparing it to the privilege of receiving a driver’s license (minus taking the test) is not only insulting and dehumanizing to homosexuals and the depth of the love many of them share, it completely ignores the fact that any two heterosexuals, regardless of their commitment to each other, can walk into any county clerk’s office today and receive a marriage license, provided they can sign their names and pay the fee. If one of them should get hit by a bus and die while crossing the street, the other would immediately have more legal rights and protection (to property inheritance, the right to make funeral arrangements, or even to visit the dying spouse in the hospital or accompany them in the ambulance) than a same-sex couple who have spent a lifetime together. Even if a same-sex couple has power of attorney in each other’s affairs, after death the biological family of the deceased (who may not have acknowledged the deceased in years) can swoop in and claim his or her property and/or contravene funeral arrangements, and the bereaved partner is usually powerless to prevent it under the current afforded legal protections. The driver’s license analogy, likewise, pays no regard to the open discrimination that gays and lesbians still face in much of our society, or to the bravery required to publically proclaim their love and commitment when that will likely make them a target of reproach in many areas.

The editorialist himself demonstrates why civil unions are regarded by many gays and lesbians as an unacceptable substitute for marriage. To suggest that civil unions would be ideal for cohabiting elderly spinsters or old friends as well as homosexual couples further demeans the bond of intimacy experienced between many same-sex couples. Indeed, were they a heterosexual couple, after several years of cohabitation, they would be considered married by common law and receive more legal protection and social respect than a same-sex couple married in a territory where the marriages of gay and lesbian couples are recognized.

Further, to suggest that recognizing the marriages of gays and lesbians will lead down a "slippery slope" to sanctioning polygamy, incestuous relationships, and bestiality ignores the fact that polygamy and marriage to close relatives does indeed exist in many parts of the world, frequently as a condition of a society that grants few rights to women, and that has not caused a popular uprising to recognize or sanction such relationships here. Indeed, these relationships are seen as primative, exploitative, and discriminatory rather than advanced. Similarly, Neither can a dog or a cat or a parakeet make an informed consent to enter a relationship, so to suggest that sanctioning the committed, loving, familial relationships of gays and lesbians will lead to similarly sanctioning the relationship between humans and their pets is to purposefully entertain an absurd notion in order to discredit a rational reform which is long overdue.

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