Gay Marriage

I guess that now that the Dems have control of congress, this will be a big topic over the next two years. This is another one of those debates where I think a lot of people talk right past each other and miss the key points.

I think the biggest casualty in the debate is a subtle but critical point, which is this: marriage is a twofold institution. There is the social/religious/traditional side of it, and there is the legal side of it (inheritance rights, for example). The former is the domain of society, the latter the domain of government. The "protection of marriage" folks seem to focus exclusively on the former, while the pro-gay-marriage folks blur the two and want both the legal and the social recognition.

The New Jersey supreme court recently ruled on the issue, finding that the social side of this was a political question, but that the legal side of it was pretty clear. While this may seem like a "split the baby" decision that punted on the hard issue, I think that it was actually entirely the correct decision.

With the usual disclaimer that I'm no lawyer, I don't see how they could have ruled any other way. The 14th amendment to the US constitution says that no state shall make a law that would "deny to any person within its jurisdiction the equal protection of the laws". In other words, a rule must apply to everyone or nobody, it cannot be selective. So if the rule is that anyone can enter into a lifetime contract with a single other person and get a set of benefits as a result of doing so, then that's OK - you can make that contract with anyone who is legally capable of entering into such a contract. This amendment appears (to me at least) to make it illegal to say that if you are white you can only marry another white person, for example, since that is not providing equal protection.

There are of course exceptions that do not violate the 14th amendment. 3 come to mind:

• You cannot marry more than one person. But the "one other person" rule applies to everyone equally.
• You cannot marry a minor. But marriage is a contract, and you can't have contracts for illegal behavior (e.g., you cannot have a legal contract to kill someone). Two strikes here: minors cannot legally enter into these sorts of contracts, and sexual relations with a minor are illegal, so this isn't an equal protection issue so much as a "legal contract" issue.
  
• You cannot marry a close blood relative. Again, since those relationships are illegal anyhow, the marriage contract would be illegal.
  

Homosexual relationships were once illegal, and if they still were, then I think there would be a strong analogy with incest and underrage marriage. (Frankly, I think this is one reason that in our 230 year history as a nation, this issue has only come up relatively recently.) However, gay relationships are no longer illegal, so the analogy with illegal contracts evaporates. So I can no longer match up gay marriage with any of the exceptions above. And I can find no fundamental principle that separates gay marriage from interracial marriage, frankly. Interracial marriage bans are anathema, and if there is no principle to distinguish gay marriage, then I am forced to conclude that gay marriage bans - at least from the legal perspective - must also be anathema.

In other words, it seems to me that the decriminalization of homosexual relationships coupled with the 14th amendment has as a natural and direct consequence a requirement to offer gays the same legal benefits/protections/responsibilities that straight couples enjoy with marriage, whether you call it marriage or not.

The NJ supreme court probably used different reasoning (I'm assuming it was actually based on the law, rather than my arguments above), but seem to have come to essentially the same conclusion. They don't care what it's called, as long as the legal rights - i.e., what government actually has a role in - are provided equally.

"What's in a name? That which we call a rose
By any other word would smell as sweet."

--From Romeo and Juliet (II, ii, 1-2)

The other side of the equation, of course, is not the legal side, it is the cultural/social side. If you provide equal rights, do you call it marriage or civil unions or something else. I think this is a silly debate. It's just a name, and Juliet was right. Have a referendum, pass a law, run a campaign - this is just a decision to make, but it doesn't really matter in the end.

There are other arguments against gay marriage that have been made including:

• Procreation: gays cannot (naturally) conceive children. If this argument were at all valid, then you would also prohibit sterile people from marrying, people that don't want to have kids (or use birth control), or elderly people from getting married. Lame argument, doesn't wash.
• Differing state laws: what happens when Massachusetts legalizes gay marriage and other states don't (or are forced to do so due to the full-faith-and-credit clause). Again, I think this argument is weak since the states already have to deal with differing rules on legal age to get married or closeness of relatives.
  

A lot of folks are very threatened by the notion of gays calling their union "marriage." Frankly, I simply don't get how this can possibly be a "threat" to marriage. I'm a happily married straight man, and I don't see how a gay couple that I don't know getting married possibly impacts my marriage. I can't imagine a single straight man now saying "I was going to propose to my girlfriend, but now that gays also have marriage, what's the point." This simply doesn't weaken marriage.

So despite being somewhat nuanced, I think that the NJ supreme court actually got it right.