Wednesday, July 2, 2008


By Bob Ward

In November, the people of California may reverse the bizarre decision of the state’s Supreme Court creating the constitutional right to same-sex marriage and overturning the law passed as a result of a popular referendum barring such marriages.

The court claims that it simply ended a discriminatory law that denied rights to certain persons because of their sexual orientation. Judge Ronald George asserted, "an individual's sexual orientation –– like a person's race or gender –– does not constitute a legitimate basis upon which to deny or withhold legal rights."

That is certainly true, but it is not an accurate description of the circumstances. While rights may not be denied because of sexual orientation, it is still up to the Legislature to specify what those rights are that cannot be withheld. In the case of marriage, it is the right to marry a person of the opposite sex. Whether you are white or black, male or female, gay or straight, you cannot be denied the right to marry a person of the opposite sex.

What the court did was create a brand new right out of nothing but its own policy preferences – the right to marry someone of the same sex, a right the Legislature, at the command of the people, has expressly refused to establish.

Judge George also made a statement that was simply contrary to the facts when he wrote, "In contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation." The fact that same-sex marriage was barred as a result of a popular referendum makes it clear that the state recognizes no such thing. And when it does, it will be the job of the Legislature to respond and enact the appropriate laws.

The state is not under a constitutional obligation to endorse, recognize or support every relationship individuals may choose to establish with one another. Some of these are personal choices and not automatically the business of the state to consider.

Accordingly, the state is free to determine whether any given relationship is of benefit to the community and for that reason, encourage and support it. As human civilizations have done for thousands of years, the states of the United States have determined that permanent, monogamous, heterosexual relationships benefit the community, and, by the institution of marriage, confer advantages on that relationship, just as the Federal government allows a tax deduction for contributions to educational, charitable and religious organizations, or allows a tax deduction for home interest mortgage on the grounds that home ownership should be encouraged because it enhances community stability and personal responsibility.

If homosexuals want to have their liaisons recognized and endorsed by the state government on the same basis as marriage, their proper course is to persuade the legislatures that the community will benefit from it – not to confect phony constitutional claims.

When the Supreme Court in 1965 struck down a Connecticut law forbidding the use of contraceptives by married people, (Griswold v. Conn.), Justice William O. Douglas called marriage "an association that promotes a way of life, not causes, a harmony in living, not political faiths, a bilateral loyalty, not commercial or social projects."

To suggest this rules out all government action regarding marriage is to mistake the individual marriage for the institution. While the state may not, as Griswold held, regulate sexual relations between man and wife, it may define and regulate the institution of marriage. It may, for example, prohibit marriage between close relatives, or by children. It may bar multi-party marriages, or (who knows where it will end) marriage between a person and an animal.

The effect of the California Supreme court’s decision is to strip the Legislature of the power to define
marriage and determine who may marry whom. If a brother and sister wish to marry, on what grounds may a Legislature tell them they may not without being guilty of discrimination as defined by this court? Did the court leave intact the power of the Legislature to prohibit marriage among three or more persons of diverse sexes? May a man marry his dog?

If the state may not define and elevate the kind of relationships in which the community has a stake, if all relationships – however bizarre, ephemeral and frivolous – enjoy equal status, if everything is marriage, the word means nothing and we have effectively abolished marriage.

1 comment:

Anonymous said...

Beyond the obvious emotional reasons, the practical reasons why I married were to pool resources, define a beneficiary and someone to represent me in medical and legal matters and to start a family. I didn't marry to benefit the community.

In fact, I see no enhanced benefit to the community as a result of obtaining our marriage license that was not already present prior to our marriage.

I also see no threat to anyone's life, liberty or property as a result of two people of the same sex choosing to commit to each other for life. Thus, I see no reason to ban it.

Many reference scripture as a basis for their perspectives on this issue, but the bible says over and over that God gave man free will to choose his course in life. Regulating who can marry is simply an attempt to impose the will of one man upon another.

Many who are spiritual may not agree with homosexuality, but the fact is that we all possess free will, and this must be respected, so long as rights to life, liberty and property are upheld.