December 7, 2012

Consummatum Non Est

Hatched by Dafydd

With the very welcome news that the Supreme Court has agreed to decide the validity of California's state-constitutional ban on same-sex marriage (SSM), I am optimistic that we will finally get a ruling that states can indeed ban the practice -- that nothing in the United States Constitution explicitly states, or even implies, that so-called "gay marriage" be mandated. (Perhaps not the best word choice, but let it go.)

But I rise to object to a tendentious "summary" iterated in many news articles, varying slightly but always boiling down to this: "The Supreme Court will decide whether homosexuals are allowed to marry in California."

No, that's not what they will decide; it's already legal in California and in every other state in the nation for gays to marry... so long as they marry members of the opposite sex (except for D.C. and the handful of states that do allow SSM).

The point is neither fatuous nor trivial: Marriage is not primarily a sexual distinction, else all the unmarried would be celebate, and all the never-married virgins. Anybody believe that's generally true in any state anywhere?

Marriage is a legal and a social distinction; sex and procreation are usually implied but are not mandatory: No law requires married couples to have sex with each other, and the idea that a marriage is not valid unless and until it is "consumated" hasn't been true under the law for many decades, at least not in California. (It was even debunked in an early episode of Perry Mason, back in the 1950s.)

There are many good reasons for a gay man and a lesbian to marry; for the most obvious, they might both want natural children, conceived by the husband and borne and birthed by the wife. Or the couple might want the legal tax and estate advantages conferred by marriage.

Being married implies a commitment; a gay man and a lesbian might well want to commit to each other for life-long goals, such as buying a house or raising children. Or a gay man and lesbian might prefer the traditional division of one person working outside the house for income, the other keeping house, even though they're sexually attracted to members of the same sex. It's even possible that they might both be religious, might want to marry, but don't want to defy the teachings of their faith.

For a more notorious purpose, they might be partners in crime who want to prevent each from testifying against the other. Oh well.

Similarly, two heterosexual men or women are likewise banned from marriage. There are reasons why straights might want to marry, all the same reasons above for those who don't want to be anchored (shackled?) to someone of the opposite sex. Two old biddies might want to marry for tax, medical, insurance, estate, or other socioeconomic benefits or advantages, but not want the stress of being around men. However, California currently bans non-sexual same-sex marriage exactly the same as it bans sex-based SSM. (In fact, Proposition 8 does not even mention the words "homosexual" or "heterosexual," or any variation; the meat of it reads, "Only marriage between a man and a woman is valid or recognized in California.")

What the Court will decide (we hope!) in this part of its eventual decision is whether California, or any other state, can bar men from marrying men and women from marrying women -- nothing more. Not whether gays can marry, but whether states can restrict marriage to opposite-sex couples.

(Although it's conceivable, it's extraordinarily unlikely the Court would rule that SSM is ipso facto unconstitutional; it will only decide whether states can ban SSM... I'm confident it will not rule that states must ban SSM. If it did, I would likely oppose it on grounds of Federalism.)

For that reason, I believe California's Proposition 8, the law in question, does not discriminate on the basis of sexual orientation: Homosexuals and heterosexuals currently have the same marital rights here, the right of an unmarried person to marry a person of the opposite sex, who is not too closely related to the spouse, is not already married, and is of legal age. Rather, Proposition 8 properly discriminates on the basis of gender: Men are essentially different from women, and states certainly have a rational basis -- even a compelling governmental interest -- to maintain that distinction anent legal marriage.

Note: In the other part of the decision, the Court will presumably decide whether the federal Defense of Marriage Act -- DOMA -- is constitutional; can the federal government restrict marriage for federal purposes to a union between one man and one woman?

Just setting the record straight. (There's that pesky word-choice thingie again. Dang!)

Later: Why a ban on same-sex marriage is not the same, morally or legally, as the long-rejected and thoroughly discredited ban on interracial marriage. Clue: The cultural and legal understanding that there should be no essential difference under the law between individuals of different races.

Hatched by Dafydd on this day, December 7, 2012, at the time of 4:12 PM

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