On Gay Marriage

I probably won’t write much about politics during the holidays. I think it’s important, psychologically, to not fixate too much on the bad news or on politics and world events. Doing so can really bring you down. To that end I endeavor to write about things that amuse me and only write about politics or news when I have something truly unique to add. But on this gay marriage issue, I just haven’t seen anyone get it 100% right, and as a result, I need to address it. But once I have addressed it, expect gobs of holiday cheer from me at the samaBlog.

One particular news event that stands out in my mind from my youth was the death of Liberace. His death garnered significant news attention not just because he died of AIDS and was outed as gay (as if anybody really thought otherwise), but because of the palimony suit that preceded his death. The argument went something like this: We’re gay lovers who have in effect been married, and we’re now in effect divorced, and thus I should in effect receive a settlement. The judge threw the case out and Liberace settled with his lover for $95k, but the fact that such a suit could even occur struck me as problematic. I remember in high school thinking about the suit around the time of Liberace’s death, that the easiest way around such legal ambiguities is to just legalize gay marriage, thus removing the “in effect” from the argument. Removing legal ambiguities is something any strict constructionist should be in favor of, and so it fit in with the rest of my political philosophy at the time, and I just filed that thought away for future reference.

Today, of course, the issue has been brought to the forefront of political debate because of the recent ruling by the Massachusetts SJC requiring the state to issue marriage certificates to same sex couples. In response to this, some evangelical activists are proposing an amendment to the United States Constitution forbidding the legal recognition of gay marriage. Some conservatives have rightly pointed out that such an amendment would trivialize the US Constitution, and that this matter is better handled at the state level, and I would concur with that sentiment. However, I support gay marriage more generally because of what marriage is and because of the changed norms that our society has adopted.

Let’s start with the SJC ruling. I admit I tried to read the entire thing, but it was long and wasn’t getting to the point any time soon. Perhaps if I were a lawyer I’d be better able to pick out the relevant passages myself, but from what I’ve read on the decision, there are essentially two points to their argument. The first is that the marriage statute in Massachusetts states that marriage is between “two persons,” not specifically between a man and a woman. Therefore, there is no reason why same sex marriage should not be allowed. As a strict constructionist, that strikes me as a fine interpretation, and should the legislature wish to clarify, it would be a relatively simple matter for them to do so. It was the second argument that bothered me.

The second argument stated that under the equal protection clauses of the state constitution, the state MUST offer marriage to same sex couples. In other words, if marriage is to be offered to opposite sex couples, then same sex couples must be offered marriage as well. Uhh, I’m no constitutional scholar, and I haven’t even read the Massachusetts constitution. But if I remember my history correctly, it was written by John Adams. And I tend to think that nowhere in his wildest imaginations did he or could he have foreseen the constitution he wrote as having been construed in such a way as to guarantee gay marriage. And that’s because while equal protection under the law is a right, marriage is most certainly not.

The libertarian argument regarding marriage, that the government needn’t and shouldn’t issue marriage licenses at all, makes the point well enough. For if marriage were a right, then how could a state ever opt out of issuing marriage certificates? But it goes far deeper than that. Marriage is not a right because it is a sanction. As case in point Massachusetts requires that couples seeking to be married submit themselves to a blood test, to ensure that they aren’t related. Even in the traditional ceremony, the officiator typically states, “whoever here sees reason why these two should not wed, speak now or forever hold your peace.” And in the past, that was a serious question. Because what if one or the other was already married, for example? You wouldn’t know unless you asked. But marriage, presided over by a religious figure or a judge, and consented to by those gathered to witness it, has ALWAYS been a matter of sanction, not of right. And for the court to propose otherwise is completely preposterous.

Again, the life of Liberace proves instructive. In 1952, Liberace got engaged to a woman named Joanne Rio, whose father intervened and insisted that the marriage not go forward. It would seem as if his daughter simply adhered to her father’s wishes, but it was for the best. Joanne evidently couldn’t see what nearly everyone else saw, that Liberace was a gay man, and that for a woman to marry a gay man would have been disastrous. Even today, most men will ask their girlfriend’s father for permission before asking her to marry, if only as a courtesy. But the fact that these traditions persist is evidence of how deeply ingrained the notion of marriage as a sanction really is.

But the court’s top down approach is also dangerous. Marriage is both a legal sanction and a social sanction. And a social sanction in particular, can never ever come from the top down. It is, by definition, a bottom up exercise. By inverting cause and effect, in essence requiring social sanction from those not yet willing to give it, the Massachusetts SJC has roused passions that will be destructive to our state and to the country down the road. Witness what happened in Vermont. After their supreme court ruled that civil unions were required, a whole nativist movement erupted in the state. “Take Back Vermont” became a rallying cry for those who rightly felt disenfranchised from their own government. In a democracy, laws should be written by legislators elected by citizens, not handed down from a politburo of know-it-all judges. And even if the people make mistakes from time to time, as they undoubtedly will, at least they can learn from their mistakes and rectify them, all while maintaining a social peace, because those on the losing side know that given enough time they can possibly sway others to their cause and change the law. This decision robs the citizens, in particular those on the losing side of the issue but not just them, of that ability. And for that reason, there will be repercussions.

The “Take Back Vermont” movement didn’t reverse civil unions in the state, but did return the state to Republican governance, which was perceived as appointing less arrogant judges. In Massachusetts, however, there will be a constitutional amendment. And it will be bloody. The SJC has ordered that marriage licenses be issued within a given period of time, but constitutional amendments must be ratified by the people in an election in this state, meaning that while gay marriage will be legal by court order, a constitutional amendment making it illegal will be waiting for it to be ratified in 2006 by the people. My best guess is that such an amendment will be passed and ratified, and that it could be quite restrictive. Hopefully, it will simply affirm the right to determine what marriage is to be a matter of law as passed by the legislature or by referendum, not a right per se. But if it goes further, and bans gay marriage outright, then the end result of having taken this to court will have been to effectively make gay marriage out and out illegal for the foreseeable future. That would make this ruling fools gold of the grandest scale.

Imagine, in the heat of anger and largely as a means of telling the court to stick to its given job, the state passes a constitutional amendment that forbids gay marriage, but then years later, even though a majority may see the light and decide gay marriage would be a good thing, they cannot muster the super-majority needed to revise the constitution to allow for gay marriage because of an obstinate but sizable religious minority. That stalemate could last decades.

The reality is that gay marriage should be legal because by and large the social sanction has already been given. Today most gays are able to live out of the closet. And they cohabitate for long periods in monogamous relationships that are accepted by family and peers. Companies give out health and other benefits to gay partners. And the hate filled invective that used to masquerade as comedy from Eddie Murphy and Andrew Dice Clay in the 1980’s has become totally socially unacceptable today. The law should recognize gay marriage because by and large society already does, and because in a democracy the laws should be reflective of the way people live. In any instance where you see massive social disobedience, whether it be speed limits or music downloading, it’s because the law has ceased to be reflective of what it’s citizens want. And over time, the law generally catches up. And it would catch up with respect to gay marriage too, if only they’d let it.

What puzzles me is why the gay lobby or gay activist groups didn’t just go the referendum route from the get go. The gay lobby has right on their side, and a referendum would offer the opportunity to air out the issues. Further, even in a state that is heavily Catholic like Massachusetts, I would have to guess that given a rational debate, they could win on a referendum had they gone that route. Now, they are at risk of the opposite type of referendum, and it’s a position that they just shouldn’t find themselves in. And that leads me to wonder if that may not have been by design. The Democrats lead by creating competing interest groups and trying to rope one interest group into dependence on their party. If trends are to be believed, and Log Cabin/Andrew Sullivan Republicanism is on the rise amongst gays, and South Park Republicanism is on the rise generally, then it is not inconceivable that at some point in the future, there could be a significant number of gay Republicans out there working for the party, donating money, running for office or just voting Republican. Might it not have been an entirely calculated move to evoke the ire of voters enough to get them to pass a constitutional amendment banning gay marriage just so that the gay lobby remains solidly Democrat? No idea if it’s true of not, just a hunch. Either way, gays in other states should be pushing for marriage by referendum, both to prove that they do indeed have the social sanction they need to be married and to avoid the political disasters that are being wrought in Vermont and Massachusetts.

Merry Christmas.


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