Same-sex marriage:Even the courts are struggling to explain why not
Recent legal rationales given for maintaining the opposite-sex matrimonial tradition are convoluted -- and discriminatory
Sunday, August 13, 2006
MARY PITMAN KITCH "You know I ain't queer." -- Ennis Del Mar "Me neither." -- Jack Twist "Brokeback Mountain" movie cowboys after falling in love
It's a sad summer for the nation's estimated 600,000 gay and lesbian couples. Half of their neighbors, a majority of their elected representatives and now the highest courts in New York and Washington state have found a way to rationalize excluding them from marriage.
Yet even prisoners can marry. Last year, 78 Oregon inmates exercised that right, sealing their weddings with a brief hug and kiss before returning to their cells. But last month, New York's highest court ruled 4-2 and Washington's ruled 5-4 that gays and lesbians can't select a spouse.
They can marry people they don't love, as the cowboy lovers did in the movie "Brokeback Mountain," to hide their sexual orientation. The New York and Washington courts held that states can reserve marriage for opposite-sex couples, primarily to boost the well-being of children.
But how does preventing same-sex couples from marriage help kids? It's all a bit fuzzy and mysterious; neither court could adequately explain it. As the Washington court put it somewhat apologetically, legislators were "entitled to believe" excluding gays protects families.
It's not as though marriage licenses are a scarce commodity, though. The 3,000 gay couples who married in Oregon two years ago did not deprive any other Oregonians of their ability to marry. Nor would allowing same-sex couples to marry diminish the supply of supposedly ideal Mom-and-Dad homes available to kids.
Still, is a state entitled to safeguard its opposite-sex marriage tradition, just because it is a tradition? In the mid-1990s, the chance that Hawaii would legalize same-sex marriage ignited a chain-reaction of defense of marriage acts all over the country, defining marriage as between a man and a woman.
In 1996 Congress approved a federal Defense of Marriage Act, too, which gave states permission to shun same-sex marriages performed across state lines. To an anthropologist, these DOMA laws made perfect sense. Our legislators, the equivalent of tribal elders, were drawing magical circles around our communities, and ultimately our states, deciding who belongs -- and who doesn't.
The idea of same-sex marriage struck most people as strange and scary, so these laws (and the constitutional amendments that followed) looked like attempts to ward off a perceived threat. Yet they also discriminated against a minority.
It's one thing for a tribal elder to utter mumbo-jumbo and exclude a minority. It's another for a court to uphold the legality of such discrimination. Courts must find that the discriminatory law has some basis in reason and isn't motivated by prejudice. Neither the Washington nor New York court succeeded in showing that.
"The legislative history of the (DOMA) law reveals that it stems, in substantial part, from thinly-veiled animosity against a minority group," Washington Justice Bobbe J. Bridge wrote in her unsparing dissent.
"Its very title asserts as much -- 'defense' of marriage. Defense from what? Against whom?"
Everyone else allowed Still, some fear recognizing same-sex marriage would confer an official stamp of approval on homosexuality. Oh, wait. Courts have held that tax cheats, deadbeat parents and even murderers on Death Row have the right to marry. Their fellow citizens are not obliged to approve of any of them.
"When civil law already permits the delinquent, the divorced, the imprisoned, the sterile and the insane to marry," gay commentator Andrew Sullivan wrote tartly several years ago, "it seems -- how should I put this? -- revealing that it draws the line at homosexuals." Sadly, such line-drawing is nothing new.
Courts once rationalized legislative taboos on other mixtures believed to contaminate society, like the marriage of blacks and whites. Nearly 40 years ago, the Supreme Court finally struck down these racist state laws.
State courts justified bans on interracial marriage by saying they treated blacks and whites equally: Neither color could marry someone of the other color. The Washington court echoed this crude rationale, saying the ban on same-sex marriage treats men and women equally. Neither can pick a person of the same sex -- the person they want to marry.
Neither can pick a spouse the way every other American picks one, on the basis of a mysterious gut certainty combining sexual passion, whimsy, devotion and crazy love.
Did Ennis Del Mar in "Brokeback Mountain" pick the exuberant Jack Twist because of his goofy grin or his tuneless harmonica? Did Jack pick the taciturn Ennis because it was fun to make him laugh? Like every other couple, they don't know.
They just know they have lucked into the best thing in life -- a blazing and requited love. If only they could have sealed it by marrying each other, instead of smothering it in passionless marriages for 20 years.
Forget parental argument And remember those tired rationales about protecting children that the New York and Washington courts relied on? News flash. Earlier this summer the American Academy of Pediatrics took the opposite stand. "More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial and behavioral adjustment," the pediatricians said.
". . . Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits and protections of civil marriage can further strengthen these families."
In 2004, Oregon voters enacted a constitutional ban on same-sex marriage. So the best hope now to protect gay and lesbian families is to create Vermont-style civil unions. In 2007, that's what the Oregon Legislature should do. And the Washington court even pointed in this direction, admitting the hardship that its state's ban causes for gay and lesbian couples. Even though the court deferred to the wisdom of legislators, it also suggested these tribal elders might want to take another look.
All around us, the factual, logical and legal rationales for banning same-sex marriage are crumbling. Yet the primitive power of these state bans remains. For the moment, they are still performing their crude function of encircling our tribe and reminding us who we are -- and aren't.
For now, citizens in Oregon and Washington are still eyeing each other across state lines, and repeating, like the sad lovers in "Brokeback Mountain," what amounts to an incantation: "I ain't queer."
"Me neither."
http://www.oregonlive.com/commentary/oregonian/index.ssf?/base/editorial/1155331503265300.xml&coll=7&thispage=2
