Law and Marriage

As riveting as the prospect of two well-qualified presidential candidates may be, the most exciting decision to be made remains California Proposition 8, the state constitutional amendment to define marriage as heterosexual and thereby reverse the California Supreme Court ruling that allowed gay marriage. While this will certainly not reverse the fact that thousands of legally binding same-sex marriage contracts have already been issued or that plenty of other states now offer same-sex marriage, the fact remains that California is a big deal and both sides are approaching it with the urgency of a nuclear bomb threat.

I'm here to weigh in on the American legal system and its relevance to the institution of marriage as well as the battle for America's soul. Just as with prostitution, fireworks or most famously abortion, the American legal system was devised to promote a permissive society. Before Roe v. Wade, abortion was legal in several states and to anyone willing to travel to those states abortion was effectively legal across the country. Such is the nature of our system that it makes it difficult to legislate morality (and fire safety). The Constitution does not prohibit values voting, it merely stacks the deck against it.

It is important to consider that marriage is something of two distinct but overlapping definitions, legal and religious. Marriage has had legal ramifications and thus civil definition since law itself came into existence and religious definition likely since religion came into existence. This means that while the religious definition probably predates the civil one, Christian matrimony is certainly predated by civil marriage. While in countries with state religions the two were nearly inseparable, in a country of religious pluralism marriage is ultimately defined by the state. Consequently, many sects only recognize marriages they themselves have officiated and refuse to recognize civil divorces, including Mormonism and Catholicism.

The religious argument for discouraging homosexuality is fairly sound and I won't dispute it here, but we should remember that in a country of many faiths the government should act as the common denominator rather than a tool of one faith against another (I speak here of Christian sects whose Biblical interpretation allows for gay marriage). In a permissive society such as ours, the side granting personal rights is never the aggressor.

We can only conclude that the present point of contention is one of the formal acceptance of homosexuality and societal definition rather than religion per say. Though the California Supreme Court holds otherwise, extending marriage rights to same-sex couples is not necessarily intuitive. Polygamy flouts traditional Western marriage to the same degree as gay marriage (an expansion of numbers rather than gender) and actually has more anthropological precedent. What makes something “intuitive” is inevitably culturally dependent, so it was not the court's place to decide our state's policy. It is the court's place to interpret law.

Of course, there is hardly any practical argument against gay marriage. The state's recognition of marriage is founded in the binding power of monogamy. It grants rights to same-sex couples that have been sorely needed to reduce legal disputes and psychological strain. In addition to the talked-about hospital visitation rights and divisions of estate, gay marriage provides the stability required for raising families. I hear that this is being used to rally the religious right, but let us consider it for a moment. Personally, I love the idea of converting statistically promiscuous, otherwise non-breeding gays into family people. I think it's tragic that orientation obfuscates the joys of parenthood and that society allows perfectly good potential parents to provide nothing more to our country than workforce.

Before you conservatives jump on me for this, consider that children raised by gays are no more likely to be gay than children from liberal families. It illustrates that in liberal America, acceptance of homosexuality is such that roughly one hundred percent of individuals with homosexual impulses come out of the closet. That is to say, the Christian Right might as well prohibit marriage of secular couples if the goal is to discourage children from growing up gay. Homosexuality is only something that “multiplies” in sexually repressed hardcore Christian circles. That is, only among people resisting homosexual impulses is it possible for gayness to act like a contagion and “turn” people gay.

So the argument remains one of permissivity vs. cultural conservatism, and I would urge both sides to refrain from lies and name-calling. Schools don't teach marriage nor does the first amendment allow government to tell people/churches whom to marry and supporting Proposition 8 does not make one a bigot, a hick or a hypocrite.