“Is gay marriage good for our society?” Because no jurisdiction has finally adopted gay marriage, the question is best stated, “Would acceptance of gay marriage be good for our society?” Yes. A solution defusing this issue is better than an alternative not defusing the issue.
President Bush explains the key complicating factors in this question: “[A]ttempts to redefine marriage in a single state or city could have serious consequences throughout the country.” (“Bush Calls for Ban on Same-Sex Marriages” [“Bush”]) This is because under the Full Faith and Credit clause of the U.S. Constitution, every state must respect certain legal decisions made in other states. (Cox, 361,398-408) “[E]very state [could] be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.”
Same sex marriage is emotional explosive. It is an issue that will not be resolved through rational, civil discussion. In the very remarks in which President Bush called for a “civil discussion,” he highlighted a contentious side-issue in a way that impedes civil discussion. He blamed the need for a constitutional amendment to preclude gay marriage on the judiciary. (“Bush”) The judiciary is a favorite target of the opponents of gay marriage. A judge ruling that gays may marry is damned as “liberal,” “activist,” “unelected,” “elitist,” “irresponsible,” or worse – the fact that judges appointed by President Bush and his conservative predecessors are unelected and often clearly members of intellectual, social, and political elites, and the fact that some rulings which have most troubled conservatives coming from judges of conservative pedigree, being beside the point. Bringing closure to the gay marriage issue will protect respect for the judiciary, sparing it from irresponsible attacks which largely work to concentrate power in the hands of executive who may be “elected” but are often less than completely responsible.1
A comparison of the “Bush” article, Chapman’s column, and Cox’s study highlights the problem. There are “nuts and bolts” issues about gay marriage, and issues of moral approval. Chapman and Cox stress the nuts and bolts issues, and while Cox presents these issues as hypothetical though forthcoming problems stemming from the fact that Massachusetts has set the stage for allowing gay marriages (Cox, 363-65), they cannot now be avoided. Gay marriage is legal in several countries. So, for example, what if a woman legally married to another woman in a jurisdiction allowing gay marriages travels to the United States with a child who was born to her partner and as to whom the traveling woman has parental rights. If the child requires emergency medical care, and the biological mother cannot be reached, if the state in which medical care is sought does not recognize the gay marriage, and from it the traveling woman’s parental rights, what happens? Must the child be declared to be a ward of the state in order to appoint a legal guardian to make the health care decisions? What if the state requires that any person seeking to be named as guardian be a bona fide resident of the state, is the traveling woman disqualified from being a guardian over what Canada recognizes as her own child? If a guardianship is established and the child receives successful medical treatment, can the child then be released into the hands of the traveling woman? (Cox 367-69.) Chapman presents several strong arguments for allowing gay marriage including the fact that in European countries that allow gay marriage, children are raised by their parents more regularly than in the United States. (Chapman) At a minimum, the situation in these countries has not worsened greatly because of gay marriage. (Chapman)
By contrast to Chapman’s and Cox’s emphasis on the nuts and bolts aspects of law, President Bush was rather clearly playing to those who emphasize the powerful but amorphous moral issue. While Mr. Bush did not explain himself, he stated that marriage will “be severed from its cultural, religious and natural roots.” (“Bush”) This was the result of the work of “ a few judges and local authorities are presuming to change the most fundamental institution of civilization” how were trying to change the meaning of marriage forever. (“Bush”) Yet amid this rhetoric, what is wrong with gay marriage? Mr. Bush can point to just one thing: those who have pressed gay marriage “have created confusion on an issue that requires clarity.” (“Bush”)
But is this confusion so great it requires a constitutional amendment? As Chapman points out, we once believed, and had laws declaring, that women could not vote. They got the vote, and the elector process has not fallen into chaos as a direct result. (Chapman) Chapman overlooks another examples of change: we had laws declaring that people of different races cold not marry. We overturned those laws, and interracial marriage has not destroyed marriage.
As Chapman notes, claims that gay marriage will destroy the family by pushing straights away from marriage is not supported in fact. Nations allowing gay marriage have not seen the demise of western civilization. (Chapman) Indeed, Chapman finds several strong practical arguments for allowing gay marriage. It will not increase unfettered sex. Sex, fettered or unfettered at one’s preference, is easily and abundantly available. Given the liberal divorce laws, many children already live outside the idealized nuclear family, and others are suffering because their parents will not divorce when that is the reasonable alternative. If children are better off when their parents marry, and adults generally build more stable relationships in which to raise children if they commit themselves to marriage, how are the children of gay couples better off if their parents barred from marrying? (Chapman)
Sadly, Cox shows that there simply is no adequate resolution for the moral approbation issue. For the militants (and militants often dominate this discussion), the nuts and bolts arguments are not enough. Opponents of gay marriage either are willing to endure the nuts and bolts costs of tolerating gay marriage in jurisdictions which will tolerate it, while standing firm in their own states, or they dismiss these costs as something an imperfect society must bear, hoping that gays will be “cured,” thereby obviating the problem. For the proponents of gay marriage, the issue is one of full-status versus no-status. They do not want civil unions. They do not want “pairriage.” They do not want a lesser status. Even if the legal system provided them with a foolproof, invariably valid working system which eliminated the nuts and bolts problems, anything less than marriage denies them the right to be full legal persons. (Cox 371-75)
Equally difficult, Cox shows that current American constitutional rules preclude the United States from having a system in which some jurisdictions allow gay marriage while others refuse to recognize it. (Cox, 398-408) As a result, the United States needs a single rule. The only rule that would truly bar gay marriage is an amendment writing discrimination into the United States Constitution. Particularly in light of the changes of the past fifty years to remove discriminations against gays, a constitutional amendment to impose discrimination seems an insult to history. (Chapman) Further, the social disruption that amending the Constitution in this way would benefit no one. Thus, acceptance of gay marriage seems the better policy.
“Bush Calls for Ban on Same-Sex Marriages.” CNN.com 25 Feb. 2004 <http://www.
Chapman, Steve. “Is Gay Marriage a Threat to Marriage.” Chicago Tribune on the
Web 5 Nov. 2006 <http://www.chicagotribune.com/news/opinion/chi-0611050398nov05,1,4324062.column?coll=chi-opinionfront-hed>.
Cox, Stanley. E. “Nine Questions About Same-Sex Marriage Conflicts.” New
England Law Review 40 (2006):361-408.
1Critics immediately challenged President Bush’s sincerity. As the “Bush” article noted, many observers felt his endorsement of an anti-gay marriage amendment was more a sap to Christian conservatives than a serious effort to amend the Constitution. More colorful critics later suggested that Mr. Bush won the 2004 election by holding up the prospect of gay-married alien terrorist prowling the backroads of America forcing abortions on underaged girls.