Gay Marriage Ruling: Let’s Try This Again
In a previous posting, I argued that Judge Walker got it right in the gay marriage ruling given the current state of the law. Specifically, his reliance on the landmark case of Loving v. Virginia leads to no other conclusion. In that case, State bans on interracial marriage were struck down as unconstitutional under the 14th Amendment’s Equal Protection Clause. In the Loving case, it clearly fell under the purview of that Amendment in the historical context of the law in the first place. The 14th Amendment uses the word “person” five times and the word “citizen(s)” five times. Although it applies to citizenship definitions and rights of newly freed slaves (as exemplified by its specific exclusion of Indian tribes and, in certain cases, officials of the former Confederacy or women or those under the age of 21 in regards to voting rights), the words are “person” and “citizen.” Only later amendments granted the rights of the 14th Amendment to women and to those under the age of 21. The first question, then, is “Are homosexuals ‘persons’ or ‘citizens’ within the definition of the Amendment?” Of course they are. As such, they are afforded the rights protected under the Amendment via the Equal Protection Clause.
Like the opposition to interracial marriage, the purported reasons against gay marriage are used today. The first is that this act will lead to unhealthy children. Obviously, homosexual couples cannot procreate. Thus their only option is adoption and no reliable study has demonstrated that children of homosexual couples suffer any deleterious effects. They are not of lower intelligence, they do not suffer any self-esteem problems, or do they suffer any bad effects any more than the children of heterosexual couples. And although adoption of children by gay couples is a relatively recent event, the longitudinal studies that do exist indicate no deleterious effects. Nor are they any more inclined to perpetuate a homosexual relationship or experiment with homosexuality later in life than the children of heterosexual couples.
Secondly, there were the arguments that interracial marriage was against “the natural order,” much like the naturalistic arguments against gay marriage today. Discovering the genesis of homosexuality is like trying to define the genesis of interracial love. Who cares? While a historical basis for the institution of marriage is procreation, a sole reliance on this belief would preclude infertile couples from being married. That is taking the slippery slope argument many use to the opposite extreme. For example, some have argued that allowing gay marriage would necessarily lead to marriage of siblings, to bestiality, pedophilia, etc. That argument is as ridiculous as saying that women should have the viability of their eggs tested before marriage, or that infertile males be confined to the Island of Misfit Males. Procreation may have at one time been a primary purpose of marriage (and procreation can only be achieved by heterosexuals), but that is akin to saying sexual and only sexual relations define the marital relationship. Although a part of marriage in the traditional sense, it is not THE sole purpose.
Like the bans on interracial marriage, they were deeply rooted in American tradition and law. Miscegenation laws were not unique to the South. In fact, they were probably the last bastion of racial prejudice to fall. It wasn’t until 2000, for example, that Alabama removed bans on interracial marriage from their State constitution and even then, 40% of Alabamans wanted it to remain. Prejudice in the face of incontravertible fact, dies hard. Interracial marriage did not rip apart the moral fabric of this country which indicates that what people thought were the “natural order” of things, were not that “natural” after all. Likewise, the same belief regarding homosexual couples- and there even less homosexuals than there are blacks in America- has no basis in fact.
Now, many will argue about the historical bans on homosexuality that pre-date this country. While it is true that Judeo-Christian tradition generally frowns on homosexuality, it nevertheless existed. In fact, in many cultures and societies on several continents across various periods of time, state sanctioned homosexual unions were recognized. This is evident in the Two-Spirit beliefs of Native Americans, the openly gay acceptance of ancient Greece, acceptable homosexuality in pre-Empire Rome and as recently as Portugal in the 1500s. Some argue that homosexuality is inherently unnatural in that the sexual acts defy the purpose of sex in the first place- procreation. That is true in the evolutionary sense of sex. However, humans have evolved to the point that sex between two consenting adults of the opposite sex is no longer a requirement for procreation.
In America, marriage laws were quiet about same-sex marriage until the Gay Rights movement demanded that they be treated equally. For example, the majority of State laws regarding marriage or the definition of marriage can be deconstructed to the generic: “any two persons not under a legal disqualification to contract a marriage may marry.” And traditionally, those disqualifications are spelled out: minimum age requirements, being of sound mental capacity (thus underscoring the contractual nature of marriage), bans on familial relationships up to first-cousins which would historically exclude incestuous marriages, that the parties be currently unmarried (bigamy laws), and that the proper fees be paid to the State. The slippery slope argument that gay marriage would then necessarily allow one to marry their sister or mother makes no more sense than saying that banning laws that prohibit sodomy among consenting adults necessarily leads to bestiality or pedophilia. In fact, given the explicit prohibitions on incestuous marriages, mental capacity, bigamy and age stand on stronger constitutional grounds than outright bans on gay marriage. No one is arguing that two 15-year-old gays, or a brother and sister who happen to be gay and lesbian, or that a married gay, or that a retarded gay or lesbian be permitted to marry. THESE are the true, enshrined prohibitions on marriage. Nor is the push for gay marriage placing any duty upon upon any religion to accept same-sex marriages.
Compare the reaction to Walker’s ruling with that of conservatives when state sodomy laws were struck down by the Supreme Court. While many conservatives advocate for smaller government with less intrusion into the daily lives of Americans, the very same people call for laws proscribing proper sexual behavior among consenting heterosexual adults. Of course, an act of sodomy has no procreative purpose, just as homosexuality has no such purpose. But does the government have the right to legislate “proper” sexual conduct among consenting adults? Talk about your slippery slope arguments. If you argue that the government does have that right (and rationalize it as all laws are moral statements), then you have to agree that the government has the right to dictate proper behaviors less personal than sexual choice like “you must purchase health care insurance.” One cannot have it both ways in the philosophical sense.
On moral grounds, I oppose abortion, homosexuality and even things like the cultural relativism arguments over adultery. With abortion, I do not understand its prevalence given the availability of contraception. I also understand that mistakes do happen on occasion and know many liberals who should have been abortions. With homosexuality, I do not consider it an abomination, despite my personal religious upbringing, but an aberration. But that aberration does not rise to the level of denying them the right to marry.
In my original research to find a logical reason to be against gay marriage, one of the arguments was that because homosexuals are, by nature it is said, more promiscuous than heterosexuals, they should be denied the right to marry. As a result of that promiscuity, the spread of sexually transmitted diseases and AIDS/HIV is particularly acute among that population. If nothing else, wouldn’t removal of homosexuals from that promiscuity into monogamy have a beneficial societal effect, assuming the institution of marriage creates such. From the looks of it- divorce rates, single-parent families, marital infidelity- homosexuals do not have a monopoly on promiscuity. Websites like AshleyMadison (selling line: “Life is short; have an affair”), or Seekandbang are the heterosexual bath houses for the heterosexual married couple today. Doesn’t it seem strange that as statistics indicate heterosexual couples are running from the institution of marriage, homosexual couples are fighting for it? Excuse me for thinking this, but wouldn’t this strengthen the institution of marriage as an alleged bastion of monogamy?