Courting Gay Marriage

Minnesota Republicans are pulling out all the stops in their effort to have a constitutional amendment on the ballot this fall forbidding same-sex marriage. As of this writing similar efforts are going on in 19 other states. Before Minnesotans endorse this effort, they need to answer two questions.

The first was posed earlier this year by U.S. Representative Barney Frank. "When I go home from today's work and I choose because of my nature to associate with another man, how is that a problem for you?" he asked his congressional colleagues. "How does that hurt you?"

President Bush and Minnesota Governor Tim Pawlenty would undoubtedly tell Rep. Frank that his behavior hurts because it involves a distasteful, unhealthy and immoral activity and threatens their sense of what marriage should be. That's a fair answer.

The next question is harder. Are these personal objections sufficient to outlaw homosexuality or same-sex marriage? The President and Governor might respond that if a majority of voters agrees with them, the answer is yes. That's not exactly true. The actions of the majority are answerable to the Constitution. The founding fathers created an independent judiciary and a Bill of Rights in part to protect minorities from discriminatory action by majorities. This is not to say the majority can never discriminate against a minority but it must justify its discrimination before a court of law.

Since 1942, the U.S. Supreme Court has declared the ability to marry a "fundamental right," a basic civil liberty. This means that any state restricting the right to marry must have a compelling reason for that restriction.

The High Court has repeatedly overturned restrictions on the right to marry when the state's justification was inadequate. It has struck down a Missouri law restricting the right of inmates to marry, a Wisconsin law denying a marriage license to a divorced parent delinquent on his child support payments, and a Florida adoption process that assumed interracial couples were less capable and effective parents than same-race couples.

In 1967, the Court outlawed bans on interracial marriage. At the time, 16 states still had them. In six they were in the state constitution. No doubt, many citizens in these states were outraged by the Court's "judicial activism."

In 1996, the Court overturned a Colorado constitutional amendment that allowed discrimination against homosexuals even though the amendment was approved by a majority of voters. The Justices rejected the state's justification. They concluded, "a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

The current controversy over same-sex marriage began in 1993 when the Hawaii Supreme Court found that Hawaii's ban clashed with the state constitution. It is instructive to note that the Court did not lift the ban. Instead, it sent the case back to a lower court to decide whether a "compelling state interest" existed. In 1996, after cross-examining eight expert witnesses over 10 days the trial judge concluded the state did not meet that standard.

In 1998 the Superior Court for Alaska echoed Hawaii's logic, "The state must...have a compelling (reason)... to refuse to recognize the exercise of this fundamental right (the right to marry)." Finding no such reason the Court overturned that state's same-sex marriage ban.

In late 2003, the Massachusetts Superior Judicial Court became the third state high court to find "no rational reason" for a ban on same-sex marriage.

Voters in Hawaii and Alaska responded to their courts' rulings by amending their state constitutions to forbid same-sex marriages. Massachusetts legislators are trying to adopt a similar strategy.

Minnesota Republicans want to preempt the possibility that a state court would require them to justify the existing ban by enacting a constitutional amendment banning same-sex marriage before the court gets involved. Presumably they believe they'd lose the argument if they had to make it with expert witnesses cross-examined before a judge. They think they'll have a better chance communicating via 30-second TV ads and from church pulpits.

They're probably right. Consider the principal grounds for opposing same-sex marriage, aside from personal animus. I'm avoiding the two most popular, "the Bible says so" and "that's the way it's always been" because the Bible has many proscriptions and prescriptions that we have long since agreed were not compatible with modern civilized conduct. And the tradition argument begs the question. Are we saying that we should continue to discriminate because we always have discriminated?

There are three more solid arguments against same-sex marriage. The first is that it breaks the inherent and fundamental link between marriage and procreation. But this link was broken long ago. Indeed, proof of fertility and willingness to bear children has never been required for marriage license applicants. All societies have recognized childless marriages as marriages.

The second argument against same-sex marriage is that children reared by same-sex parents will be hurt. But the empirical evidence suggests otherwise. The American Academy of Pediatrics, the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers and other organizations involved in protecting the health of children agree. Children raised by gay or lesbian parents suffer no harm. The evidence is not theoretical. More than a quarter of all households headed by same sex couples already are raising children. Given the evidence that the children suffer no harm in such a household author Jonathan Rauch pointedly asks, "Would these children be better off if their parents remained unmarried?"

The third argument against same sex marriages is that it threatens the family, the bedrock of civilization. Sociologist Stanley Kurtz is one of the most prominent advocates of this position. He maintains that same-sex marriage in Scandinavia has all but destroyed the family. The evidence contradicts him. As Professor Irwin Garfinkel of the Columbia University School of Social Work points out, 45 percent of American children do not spend their entire childhoods in a two-parent household. In Sweden only fifteen percent do.

Conservative gay journalist Andrew Sullivan insists that Denmark's experience proves that same-sex marriage strengthens the institution of marriage. "(D)uring the first six years in which gay marriage was legal the rate of straight marriages rose 10 percent and the rate of straight divorces decreased by 12 percent."

A constitutional amendment might allow us to avoid justifying our prejudice in a formal setting. But isn't a formal setting precisely the one in which prejudices are best aired and examined?

David Morris is co-founder and vice president of the Institute for Local Self Reliance in Minneapolis, Minnesota.

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