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Same-sex Marriage


The argument of same-sex marriage is important, not only for the religious and legal precedent, but because the welfare of families, especially the interest of children now and in the future, may be profoundly affected by the proposals before Hawaii's courts and the state legislature relating to same-sex marriage.

Marriage is a unique practice, in that it is both a religious sacrament and legal registration controlled by the state. For the time being, marriage is defined by "84% of the population as the union of two people of the opposite sex" (Johnson p.49). Therefore, by definition, marriage has to be different sex. Whereas, the definition of homosexuality is "exhibiting sexual desire toward another of the same sex" (Webster's New World Dictionary p.673). Throughout human history, according to religious tradition and as a matter of natural law, marriage has been tied to potential procreative sexuality, which is a monopoly held by different-sex couples. Under this definitional objection, "the state cannot recognize something that is an impossibility" (Eskridge p.87).

"In 1993, three same-sex couples (Ninia Baehr, Genora Dancel, Tammy Rodrigues, Antoinette Pregil, Pat Lagon and Joseph Melilio) applied for marriage licenses from the State of Hawaii. They were refused. They then challenged the state's decision in court. This set in motion a chain of events: the case was appealed to the Hawaii Supreme Court (Baehr v. Miike; action #15689) which ruled on May 27, 1993 that the state's refusal to grant marriage licenses was unconstitutional. It violated the Hawaiian Constitution's equal protection guarantees (Article I, Section 5) against gender discrimination. The court remanded the case to the Circuit Court, stating that licenses should be issued to same-sex couples, unless the state can show a compelling interest in banning such marriages" (Hawai'is Future Today).

The Hawaiian Legislature passed a bill in 1994 stating that "the state's policy is that marriage must only be permitted between a man and a woman" (Hawai'is Future Today).

On December 3, 1996, Judge Kevin Chang issued a 46 page ruling. He has determined that "the State of Hawaii failed to show a compelling state interest to justify the continuation of the ban against same-sex marriages" (Chang). Same sex marriages are now theoretically legal in Hawaii. However, the state refused to recognize the courts decision until it was formally filed. The attorney general obtained a stay of Judge Chang's court order, pending a decision by the state Supreme Court. That decision is not expected until late 1997 or early 1998.

The suggestion that the state has no real interest in marriage is a stunning repudiation of the unique contributions of heterosexual marriage to society, to the state, and to the individual--and particularly to children. The marriage of a man and woman has long been favored because it provides the most favorable setting in which to conceive and raise children. "Child development is skewed, scarred or retarded when a father or mother is absent in the household" (Fein). Children, moreover, are the most numerous (and most innocent) victims of the current cultural disintegration of marriage. Indeed, the impoverishment of children has been shown to be a direct result of changed in family structure that have undermined and destabilized marriage over the past three decades. To halt this trend the law should clearly and unequivocally convey the message that the best interest of a child demand both a mother and a father. In an era where fathers are abandoning their children in unprecedented numbers and where mothers are opting to parent without the support of a husband, it would be irresponsible to adopt a marital policy which sends the misleading message that a mother and a father are not both important to the welfare of children.

All children long to connect emotionally with their parents, especially their same-sex parent. This relationship is a vital part in the process of growing to feel complete and secure as males and females. "When a child grows up feeling emotionally cut off from his or her same-sex parent, it interrupts this process. If the distance continues, the process never resumes, leaving a child feeling rejected, empty, and insecure as a boy or girl" (Olson p.13).

The homosexual community speaks of itself as struggling for civil rights. " 'The gay community's goal is integration--just as it was with Martin Luther King,' argues homosexual activist Harry Britt" (Horowitz p.72). Far from seeking integration with the heterosexual world, it vehemently avoids it. More important, "the movement seeks to win sinecures through the state, and over any objections by "homophobic" opposition. With a cloud of a heavy fine or even a jail sentence hanging over a mortgage lender, a rental agent, or a job interviewer who might be discomforted by them, homosexuals under these laws can win employment, credit, housing, and other economic entitlements" (Horowitz p.73).

The prohibition of same-sex marriage is not comparable to racial discrimination. As General Colin Powell stated, "Skin color is a benign non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument" (Lee). While race is irrelevant to any possible state goal related to marriage, sexual orientation, by contrast, goes to the very heart of marriage--as evidenced by laws prohibiting the marriage of brothers and sisters of fathers and daughters.

Same-sex marriage is not a constitutional civil rights issue. In the "constitutional sense, 'civil rights' encompass only those rights designated for special protection by the clear terms of the Constitution" (Lee). The adoption of clear constitutional terms, furthermore, requires an extraordinary, super-majority consensus of the people. "Civil rights," therefore, include only such rights as those enunciated in the Bill of Rights and the Fourteenth Amendment. Those who claim fundamental civil rights status for same sex marriage, however, can point to no similar societal--let alone constitutional--consensus.

The prohibition of same-sex marriage does not constitute gender discrimination. Marriage is the oldest equal-rights institution officially recognized in law. By requiring a male and a female for every union, marriage laws send a clear message regarding the equal worth and equal importance of both genders to the most important institution in our legal system. In both substance and symbol, a marriage union composed exclusively of a male and female not only creates a complementary relationship of unique strength an benefit to the spouses themselves, to children, and to society, but it provides a critical object lesson in equality, mutuality, and the value of gender cooperation for the rising generation that unions of two persons of the same gender cannot duplicate.

The debate over same-sex marriage is not about "tolerance" but "preference." Indeed, validation of same-sex marriage would demonstrate much more than mere "tolerance" of alternative "lifestyles." Marriage is not merely "tolerated" but is rather one of the most preferred relationships known in law. Accordingly, the demand for legal recognition of same-sex marriage is not a mere plea for tolerance, but a demand that society confer upon that relationship an exceptionally preferred status. They have no right to insist that we surrender our fundamental moral and religious beliefs in order that they might feel comfortable with their sexual behavior.

Society must have distinct definitions to which it turns when faced with conflicts between the desires of its citizens and the interests of its larger community. Heterosexual marriages have been given preferred legal status, moreover, because of the long-recognized, irreplaceable contributions that such marriage make to the benefit of society. Same-sex unions simply do not make comparable contributions to social order, to community and personal health and welfare, to private and public economy, to social morality, and especially to children. In short, equal status for same-sex couples is not supported by evidence of equal contributions to society.

Furthermore, marriage is an essential element in the foundation of a healthy society, and government has a duty to protect that foundation, therefore, the State should not legitimize homosexual relationships by legalizing same-sex marriage but should continue to reserve the special sanction of civil marriage for one man and one woman as husband and wife.

The rights and privileges of marriage are based on the assumption that a couple may children and raise them within the legal structure provided by the state. If having children is not the point of legal marriage, then there is no reason to provide married heterosexual couples with special benefits. Of course, many married heterosexual couples do not have children. But permitting gay to marry would further chip away at the original intent of the institution.

Other benefits that gay couples would become eligible for Social Security, military pensions and tax breaks, placing an additional burden on an already strained federal treasury. Taxpayers would end up subsidizing a lifestyle of which many disapprove (Should gay marriage be legal? p.31)

Regardless of parental wishes, public schools will be forced to teach their children that homosexual relationships are just as desirable as heterosexual ones.

This is a historic decision, both for the State of Hawaii and for our entire nation. If same-sex marriages are approved either by court decision or legislative enactment, Hawaii may well be deciding the issue--not only for itself--but for other states as well. Article IV, Section 1 of the US Constitution states that "full faith and credit shall be given in each state to the...judicial proceedings of every other state" (Morris p.1008). Thus, if Hawaii legalizes same-sex marriages, and a couple is married in that state, then the remaining 49 states are required to recognize the marriage. "As of November 5, 1996: 15 states have passed legislation that bars married homosexual couples from having their marriages recognized, or collecting benefits in their state; 14 were considering legislation; 17 considered such bills but rejected them. That leaves 4 who have not considered this type of legislation at all" (Lambda p. 29). Hawaii should be exceptionally hesitant before taking any action that could have such dramatic impact upon millions of essentially unrepresented citizens.

Any change in marriage opens up the possibility of any conceivable change in marriage. If marriage is redefined to include two men in love what about a man in love with two women, his daughter or an animal? The homosexual community says that "homosexuality is a 'state' while polygamy, incest, and bestiality are merely 'activities' " (Sullivan p.10). "But this distinction between state and activity makes no sense for same-sex love or opposite-sex love. If John and Jim love each other, why is this an expression of some kind of existential state, while if John and Jim and Jack all love each other, this is a mere activity?" (Krauthammer p.102).

Non-monogamous homosexual marriages will fatally undermine an already enfeebled institution. Andrew Sullivan, the author of Virtually Normal: An Argument about Homosexuality admitted that "gay men are so naturally promiscuous that they are constitutively unable to sustain the monogamous requirements of marriage and so fail to meet the requirements of membership" (Sullivan p.10).

William Eskridge, the author of The Case for Same-Sex Marriage has called his argument "politics in the image of God" (p.99). Which God? The God of Eskridge is surely not the angry God of Sodom and Gomorrah. It is not the God who said to Moses, " 'If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.' " (Leviticus 20:13). This transparent and knowable God, is a quintessentially American God, a designer God who demands nothing of them that they do not want of themselves; who suggests no duty at odds with their dispositions; who can be twisted and shaped to fit every one of their dreams.

Even though "88% of Americans are Jewish, Christian, or Muslims" who abhor homosexual behavior as one of the most deeply rooted and consistent moral teachings (World Almanac p.646). Homosexuality is an act that is proved anatomically unnatural.

"Marriage is not an arbitrary construct which can be redefined simply by those who lay claim to it. It is an honorable estate, instituted of God and built on morals, religious, sexual and human realities" (Bennett p.27). Marriage is based on a natural teleology, on the different, complementary nature of men and women--and how they refine, support, encourage and complete one another. It is the institution through which we propagate, nurture, educate and sustain our species.

Unfortunately, there are no magic elixirs, simple solutions, closed and totalizing systems of explanation, or grand schemes at once easy to understand and applicable to everyone and everything. There is, however, one way to avoid the serious structural difficulties posed by the pending action of the Hawaii Supreme Court while at the same time definitely resolving what is, at bottom, a social rather than a legal debate: let the people decide. Much has been said regarding "the people's" views on same-sex marriage. I submit, therefore, that it is time to turn the debate over to them. Let's resolve this question the way such issues should be decided in a democracy--by the people of all fifty states.