Close on the heels of the proposition 8 battle in California, the public debate over gay marriage may be moving over to the East coast. It seems that a blue ribbon panel commissioned by the Governor has returned findings that the Garden State’s current program of civil unions doesn’t meet constitutional muster and should be replaced with full and equal marriage as an option for same sex partners.
In a report that could lead to New Jersey legalizing gay marriage, the Civil Union Review Commission said same-sex couples cannot achieve equality with heterosexual couples if their legal status is restricted to civil unions.
Full marriage is the only way to meet a state constitutional requirement for equality, said the 13-member panel of public officials, clergy, lawyers and same-sex marriage advocates.
There are two questions I would like to address today on this subject. The first involves the legal aspects of the question in terms of whether or not this is a subject which should even be addressed by the courts, and what precedent may exist for us to draw upon. The second are the common arguments in the social court of public opinion which are frequently used to argue against such a proposal.
Should this be a matter subject to governmental regulation? In a perfect world designed and managed by yours truly it would not. After all, if you assume that the government has the power to grant you a “right” to such a relationship, this assumes that you also grant them the power to take that “right” away. Can the government regulate the number of friends you can have? How about jogging partners? (Yes, they may be able to regulate where you can jog, but not who you may run with.) Unfortunately, right from our nation’s inception we inherited a system where marriage was embedded in our legal system, with tax benefits, incentives and property division and control attached to a religious ceremony. Since we seem to be stuck with the situation for now, how has our legal system viewed this question (if at all) in the past?
The primary source, and the one which will probably be pivotal if this question ever makes it to the Supreme Court, is the 14th amendment.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Right off the bat it becomes hard to pass laws which will pass constitutional muster saying that gays don’t qualify as “persons born or naturalized in the United States” and can somehow be treated differently. But have the Supremes addressed similar questions before? In fact they have. It came in answer to the question of anti-miscegenation laws (which banned inter-racial marriage across most of the country for a very long time) and was finally decided in the case of Loving v. Virginia. The court’s decision read, in part:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Even though this case speaks to racial divisions, the court decided – for some reason – to declare that marriage is a “basic civil right.” They cloud the issue by mentioning the “fundamental to our very existence and survival” aspect – and opponents of gay rights strive mightily to latch on to that one – but the original clause stands alone. Civil rights are civil rights, and in America they are granted to all by default.
This dovetails nicely into the common arguments against gay marriage. One of the first and most common is the insistence that marriage is not a right, but a privilege. Personally I would tend to agree, but since this question always seems to arise in reference to laws and legal challenges, I’m afraid we’ll have to go with the Supreme Court on that one. The second argument moves to the field of etymology and seeks to argue that we can not “change the definition of marriage” which has been the same for thousands of years. It’s an interesting challenge, but only if you don’t examine it too closely. As people from legal eagles to late night comedians have pointed out, “thousands of years” takes us back to biblical times, when marriage was frequently defined as being between “one man and any number of women.” Most opponents seem hard pressed to tell us exactly when the definition was changed to lower the number of participants to two.
But even given the age of that citation, we can look for more solid legal ground in the recent past here in the United States. A brief look at the aforementioned miscegenation laws will show that marriage was “defined” as not only being between two people, but only between couples with the same relative amount of melanin in their skin. Unions between different races did not legally qualify as marriages. That “definition” changed in 1967 and I seriously doubt you would find many people today arguing it. (Well, outside of some holdouts at the more odious white supremacy fora, anyway.) We change the definitions of of words in their legal context, up to and including marriage, all of the time.
The final argument I tend to hear is that “the courts should not get involved” and it should be left to the people and their elected representatives either through the passage of legislation or a public vote via referendum. We’ve saved the weakest of the arguments for last, of course. In general we don’t like the courts getting involved in the legislative process unless we don’t like the results of that process. Looking deeper, though, we come to realize that the people and their elected representatives have passed many laws which were popular and widely accepted – constitution be damned – until the courts were forced to step in and point out uncomfortable facts. Nowhere was this so common as in the field of civil rights. Were we to adopt this argument there would have been no reason to stop having separate water fountains, lunch counters and schools for blacks.
It’s going to take longer for this battle to come to its inevitable conclusion, but the day is most certainly coming. There are still enough dinosaurs in the system that work will remain to be done for some time to come, but it’s worth remembering that Rome wasn’t built in a day. (It was, however, burned to the ground in about 12 hours.)