Mike Murray essay -- Ties that Bind

Opinion Paper: 23 June 2008

Ties that Bind

--by Mike Murray

The reasonableness – or unreasonableness – of legally sanctioning homosexual unions is a determination that America cannot much longer avoid making. Everywhere, activist groups are passionately stating their cases. Emotion is running high on both sides of the debate.

“Same-sex” marriage is legal in some states. In others, it is not. All across the country, legislators are enacting laws that expressly prohibit or permit. When statutes that forbid conjugal unions between homosexuals are challenged, state supreme courts scrutinize them to determine if they pass constitutional muster. Those who oppose such judicial “interference” pursue amendments that they hope will insulate laws from it.

Historically, states have honored marriages that were made elsewhere. That is, if two people were legally married in State A and subsequently moved to State B, they were considered a married couple in both (and in every other state in America, for that matter). That was so even if the qualifications for marriage – such as age minimums – differed.

State residency wasn’t even a hurdle. If two people who were only 17 years of age wished to marry (and they resided in a state with a minimum of, say, 18), they could simply drive to a less-restrictive, neighboring state – where they would be immediately eligible to apply for a license. Following their nuptials they could return home, “legal” in both states.

Las Vegas has for years done a booming marital business by offering quickie ceremonies. Because many states historically required brief waiting periods before issuing marriage licenses (and Nevada did not), countless impatient couples flew there to tie the knot. Some lived happily ever after.

(But of course, there is serious risk associated with "marriage on demand" and open-all-night wedding chapels. Consider those poor unfortunates who travel to Sin City in pursuit of – what they think will be – a little harmless fun, only to awaken from a night of revelry unintentionally hitched. Sometimes, “what happens in Vegas doesn’t stay in Vegas.” Ask Britney Spears.)

As convoluted as the patchwork system of varying state requirements regarding marriage might have seemed, it nevertheless worked reasonably well for many years. But everything changed when a few states took steps to legalize homosexual marriage.

Residents of other states, ones that had explicitly banned same-gender unions, did not believe that they should be obligated to recognize a marriage that did not involve “one man and one woman.” That was especially so in places where people had gone beyond simply enacting a law, and had taken the extra step of amending their state constitution. Sentiment was strong that they shouldn’t be forced to sanction an act that they had so deliberately forbidden.

But there was still the problem of precedent: Under the “full faith and credit clause” of the U.S. Constitution, states had historically honored contracts (including marital ones) that were lawfully entered into in other states. It had for so long been a case of “married in one state / married in all.” That was a serious fly in the ointment. And it led to the enactment of the Defense of Marriage Act (DOMA).

Although portrayed in the media as a conservative initiative (it was introduced by Republicans), the bill enjoyed broad, bipartisan support. Congress in September of 1996 overwhelmingly passed the measure, with majorities of both Democrats and Republicans voting in favor of it. And President Bill Clinton (a Democrat) wasted no time signing the bill into law. Neither political party, it seemed, wished to buck public opinion in an election year.

DOMA doesn’t prevent the passage of laws that permit homosexual marriage. But it does allow states to refuse recognition of “same sex” marriages entered into in other states. DOMA was intended to serve as a de facto exception to the “full faith and credit” clause. Some believe that ended the matter. It didn’t.

Just as those who have been unhappy with laws that prevent homosexual marriage challenged them in state appellate and supreme courts, so too will those who oppose the Defense of Marriage Act argue their cases in federal courtrooms. It is a near-certainty that the matter will one day reach the U.S. Supreme Court. What will members of the high court do?

If history is any guide, the “Supremes” will first try to punt. That is, they will initially avoid ruling on the central questions: Are state laws that prohibit homosexual marriage sound? Does a federal measure that allows states to ignore marriages made in other states square with the U.S. Constitution?

The Supreme Court will probably do its best to avoid arbitrating core contentions. Instead, justices will attempt to confine themselves to smaller, tangential issues – or simply boot cases back down to lower courts for reconsideration. But they won’t be able to duck the matter forever. Citizens will eventually demand definitive answers.

A preemptive strike by those who oppose same-sex marriage (or perhaps a reactive one, if an unfavorable ruling is rendered first) could involve an attempt to amend the U.S. Constitution. If homosexual marriage was thusly constitutionally prohibited, no one – not even a member of the highest court in the land – could do anything to legalize it. Or so the thinking goes. (These days, however, jurists do many things that confound.)

Frankly, I hope it doesn’t come to that. I hope that we Americans can resolve our differences over this contentious issue in a way that doesn’t involve litigation.

There are arguments for and against same-sex marriage that make sense to many. I don’t care to attack or defend any of them. I am in no position – ethically, morally, or spiritually – to define the boundaries of appropriate behavior between consenting adults.

But one thing is clear: lifestyles vary in extreme ways. They always have; they always will. No law will change that. Whether some like it or not, homosexuals (and other non-heterosexuals) will continue to exist and enter into non-traditional relationships, irrespective of any regulation.

At the same time, it is important to recognize that we are all of us bound by the rules of the societies to which we belong. It is reasonable – essential, even – that norms be established and rules enforced that limit the behavior of group members. An “anything goes” approach leads to chaos. If we accept the benefits that flow from communal affiliation (and there are many), we are obligated to tolerate the restrictions that accompany them. We have to take the bad with the good.

Nevertheless, governmental intrusion into people’s personal lives should be minimal. Public oversight of private matters should exist to the smallest degree possible. I am in full agreement with Thomas Jefferson: a government governs best that “governs least.”

I have no personal opposition to same-sex (or other alternative) relationships. Although they’re not my cup of tea, they don’t offend me. “Different strokes for different folks,” I figure. There is so much animosity in the world today; I am encouraged by expressions of love and devotion – wherever and however they exist.

Still, that’s not really the issue. The debate revolves around a specific question: Should homosexual relationships be eligible for marriage, for some lesser form of civil union, or for no legal status whatsoever? The answer should be one that gives consideration to the national will, yet does not oppress. In good democracies, majorities do not tyrannize minorities.

It is not clear to me whether it is more reasonable for American society to grant non-heterosexuals the right to marry or to merely form civil unions. But I do believe that one or the other should be permitted – and be legally recognized by all states. Because I am persuaded by the case that proponents make when they speak of fairness, of the constitutional requirement that America provide equal treatment – “equal protection under the law” – to all of its citizens.

“Equal protection” is a powerful argument, one that has been successfully employed in numerous discrimination cases involving religion, race, gender, age, and sexuality. My guess is that it will one day lead to the nullification of DOMA. At the very least, the “protection” clause of the U.S. Constitution’s 14^thAmendment makes it probable that some degree of modification to the prevailing definition of marriage is inevitable.

Also persuasive is another protection-related consideration: the provision of ancillary benefits to non-traditional partners and their dependents. Benefits such as health-insurance coverage, employment and educational opportunity, a path to citizenship.

One shortcoming of the refusal to grant some form of legal standing to non-heterosexual unions is an unintended consequence: the extending of “significant other” benefits to people who are not in committed relationships. Many employers, for example, treat homosexuals who reside together the same way they do married heterosexuals.

Many such gays and lesbians call themselves “life partners” and are truly devoted to one another. But others are only shacked-up. Among the latter group, most go their separate ways after relatively short periods of time. Unfettered by the many entanglements of governmentally sanctioned marriage, they easily dissolve associations and part company – unencumbered by the difficulties that surround court-officiated separation and divorce.

Fairness dictates that America grant non-heterosexuals the same rights that it extends to heterosexuals. Consequently, homosexuals should be permitted to enter into some form of sanctioned union. But with rights come responsibilities. In order to qualify for the benefits that accompany traditional marriage, non-heterosexual couples should be required to commit to a legally binding relationship. The rest of us have to; so should they.