Saturday, July 12, 2003

For years, the issue of same-sex “marriage” in America has surfaced only occasionally, a topic of arcane conversation, and promptly slips away.

No longer. High court decisions in Canada and the United States and a pending lawsuit in Massachusetts will finally force “gay marriage” to the top of the nation’s legal and cultural agenda.

“Today’s decision has awakened a sleeping giant,” attorney Mathew D. Staver said after the June 26 U.S. Supreme Court ruling that a Texas ban on homosexual sodomy was an unconstitutional violation of privacy.

The ruling “will galvanize and reinvigorate the majority of Americans who believe in traditional marriage but have ignored the radical agenda of the same-sex marriage movement,” said Mr. Staver, president and general counsel of Liberty Counsel, the public-interest law firm in Florida that had filed a brief in behalf of Texas.

The high court ruling followed a June 10 decision by Canada’s Ontario Court of Appeal that restricting marriage to “a man and a woman” was unconstitutional.

From now on, the court said, “two people” can marry in Ontario.

The Canadian ruling was greeted with jubilation by homosexual activists, and hundreds of homosexual couples — including dozens from the United States — have gone to Ontario to marry. There has been no test of whether any of these marriages will be recognized in any of the 50 United States.

‘Mother of all cultural battles’

A more sweeping marriage-related decision could be handed down from the Massachusetts Supreme Judicial Court by tomorrow.

The court is considering a lawsuit titled Goodridge v. Massachusetts Department of Public Health, which is brought by seven homosexual couples who say they have been unconstitutionally denied state marriage licenses.

The Massachusetts high-court ruling, from which an appeal could be difficult, could tell the state to begin issuing marriage licenses to same-sex couples. If that happens, say lawyers specializing in domestic law, thousands of homosexual couples will marry in Massachusetts and file lawsuits in every other state seeking recognition of their marriages.

This ruling will lead to the “mother of all cultural battles,” in which “every public official in the country will be forced to take a stand on gay marriage,” predicts Hoover Institution scholar Stanley Kurtz, writing in National Review Online.

Same-sex “marriage” has many advocates on the left; liberal religious groups, law firms, child welfare leaders, educators and historians have all filed briefs in support of the Massachusetts plaintiffs.

Democratic presidential candidate Howard Dean, who as Vermont’s governor signed that state’s landmark civil-union law (in a post-midnight act, without ceremony), has promised that as president he would “insist that every state find a way to recognize the same legal rights for gay couples as they do for everybody else.”

“If a [homosexual] couple goes to Canada and gets married, when they come back, they should have exactly the same legal rights as every other American,” Mr. Dean recently told an interviewer on NBC’s “Meet the Press.”

Traditional family organizations and many religious groups oppose same-sex “marriage,” arguing that it would destroy the unique model of traditional marriage that has lasted in undisturbed form for thousands of years across many cultures.

Amending the Constitution

Some of these groups support an ambitious tactic of adding two sentences about marriage as an amendment to the U.S. Constitution.

The first sentence of the bipartisan Federal Marriage Amendment bill, introduced in May by Rep. Marilyn Musgrave, Colorado Republican, is simple and direct: “Marriage in the United States shall consist only of the union of a man and a woman.” The second sentence is equally forthright: “Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

Senate Majority Leader Bill Frist endorsed the amendment. President Bush has recently declined to do so, though he made a vague endorsement of traditional marriage. “I don’t know if it’s necessary yet,” Mr. Bush told reporters in the Roosevelt Room of the White House. “Let’s let the lawyers look at the full ramifications of the recent Supreme Court hearing [barring prohibition of sodomy]. What I do support is the notion that marriage is between a man and a woman.”

The amendment, promoted by a coalition of religious, legal and civil rights advocates, is called the Alliance for Marriage.

How likely is same-sex “marriage” in America?

Legal observers say that the Massachusetts decision could have the greatest direct impact, as it will take only one state to start the flood of same-sex “marriages” — and related lawsuits to recognize homosexual unions.

In contrast, the impact of homosexual “marriage” in Ontario — which along with British Columbia are the only two provinces in Canada where it is currently allowed — is minimal.

U.S. states don’t have to recognize any marriage that violates U.S. public policy, says Lynn D. Wardle, a law professor at Brigham Young University who studies same-sex “marriage.” Thus, “what happens in Canada is not going to legally affect what happens here, although its political impact can be pretty profound.”

The effects of a domestic endorsement of a same-sex ritual is less clear. “I think anyone can say with certainty that a [Canadian] gay marriage won’t be recognized as a marriage here in New York,” Patrick Synmoie, counsel to the city clerk, told the New York Daily News. “It’s against the law.”

Instead, it will be considered a domestic partnership, he said, since “the City Council passed a local law last year permitting any civil union or domestic partnership done elsewhere to be recognized by the city of New York.”

Decriminalizing sodomy

The immediate effect of the 6-3 Supreme Court ruling invalidating the Texas ban on homosexual sodomy is that it invalidates similar laws in Kansas, Oklahoma and Missouri, as well as antisodomy laws in nine other states, including Virginia.

The wider-reaching aspect of the decision, titled Lawrence v. Texas, written by Justice Anthony M. Kennedy, is that it overturned a 1983 Supreme Court decision that allowed states to criminalize homosexual sex.

“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct,” Justice Kennedy wrote.

“The [Texas] case involves two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle,” he wrote. “Their right to liberty under [the Constitution] gives them the full right to engage in their conduct without intervention of the government.”

Justice Antonin Scalia, dissenting, warned that the decision undermines an elected government’s right to regulate “immoral and unacceptable” sexual behavior. “[L]aws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are sustainable” only when laws on moral choices are upheld, Justice Scalia wrote. “Every single one of these laws is called into question by today’s decision ….”

Justice Kennedy wrote that the Lawrence decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

However, he identified marriage as a protected personal choice: “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing and education. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Homosexual activists have hailed both the U.S. and Canadian decisions as enlightened, inevitable and essential for equal rights.

The Lawrence ruling “starts an entirely new chapter in our fight for equality for lesbian, gay, bisexual and transgendered people,” said Kevin Cathcart, executive director of the Lambda Legal Defense and Education Fund.

“It puts tremendous winds in our sails,” Evan Wolfson, head of Freedom to Marry, told the Washington Blade after the Canadian decision. Freedom to Marry is dedicated to legalizing same-sex “marriage” in at least one U.S. state within five years.

New census data show that “gay and lesbian families live in nearly every county in the country,” said David Smith, spokesman for the Human Rights Campaign, the nation’s largest homosexual rights advocacy group. Many of these couples have children, and “these families should have the same protections, rights and responsibilities as other families.” Marriage is “a matter of necessity.”

No longer ‘theoretical’

Conservative and traditional-values advocates see these decisions as undermining the rule of law against sex-related crimes and laying the groundwork to allow same-sex “marriage.”

“Private sexual acts have public consequences,” said Ken Connor, president of the Family Research Council. If consent and privacy are the only things that matter, he said, “then that throws the door open to any sexual behavior.” The Supreme Court, he said, has “put this country on the fast track to recognizing same-sex marriages.”

So what should bewildered Americans make of all this?

First, they can realize that they haven’t heard a full debate on the issues, say two media watchers who oppose same-sex “marriage.”

Same-sex “marriage” has been “very theoretical” to most Americans, says Maggie Gallagher, an author and columnist who frequently writes on the issue. But a Massachusetts ruling for the homosexual plaintiffs would put an end to that.

Stanley Kurtz of the Hoover Institution cautions that most of the debate so far has been framed in a way that favors the same-sex “marriage” views. The media elite sees same-sex “marriage” in simplistic civil rights terms — that homosexuals have a right to marry, he says. This point of view makes any opposition to same-sex “marriage” appear as simple prejudice, especially when it comes from a religious group.

What’s not being articulated in much of the media, says Mrs. Gallagher, is that “gay marriage is a complete innovation,” and even though other cultures have accepted homosexuality, “none of them confused these relationships with marriage.”

Mr. Kurtz notes there are important secular arguments to be made against changing marriage. These include recognizing the importance of marriage to providing children with their own fathers and mothers, and the institution of marriage’s ability to harmonize the different genders. These things cannot occur in same-sex unions.

“Once you start redefining marriage on civil rights grounds, the process will not stop,” says Mr. Kurtz, who argues that polygamy and “polyamory” will become marriage battlegrounds as well. Polyamory is the practice of either sex having multiple spouses.

Marriage is not some “warm and fuzzy” lifestyle choice, Mrs. Gallagher argues. If marriage is turned into some kind of benefits system for sexual partners in which “every individual makes up what marriage is and registers it,” marriage as a social institution will lose both its identity and its historic power.

Homosexual activists are pushing for expanded rights in other states:

• In New Jersey, seven homosexual couples have sued the state for denying them civil marriage licenses. On June 26, Mercer County Superior Court Judge Linda R. Feinberg heard arguments on a state motion to dismiss the case. Her ruling is expected by the end of the summer. The lawsuit, Lewis, et. al. v. Harris, et. al., is likely to be reviewed by the New Jersey Supreme Court, which has ruled favorably on several homosexual-rights issues.

• In California, the state Democrat-led Assembly passed a domestic-partnership bill that would award “the same rights … as are granted to and imposed upon spouses” to homosexual couples. These rights include joint filing of tax returns, child support, court immunity, medical leave, pension benefits and debt liability.

Opponents of the bill, titled AB 205, say it “functionally reverses” voters’ wishes, since three years ago Californians enacted Proposition 22, which defines marriage as only the union of a man and a woman.

The bill’s supporters say that it doesn’t affect marriage but will benefit California’s 19,000 registered domestic partners. The bill is now before the Democratic-majority state Senate, which is expected to approve it.

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