Yay for same-sex marriage....
I am obviously delighted about the ruling in the US. But, I thought it was a good time to link, once again, to the terrific essay in Newsweek on "The Conservative Case for Gay Marriage."
This essay was written by lawyer Ted Olson who was one of the attorney's who just won the case in the US on proposition 8.
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.
This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike. The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Sadly, our nation has taken a long time to live up to the promise of equality. In 1857, the Supreme Court held that an African-American could not be a citizen. During the ensuing Civil War, Abraham Lincoln eloquently reminded the nation of its found-ing principle: "our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal."
At the end of the Civil War, to make the elusive promise of equality a reality, the 14th Amendment to the Constitution added the command that "no State É shall deprive any person of life, liberty or property, without due process of law; nor deny to any person É the equal protection of the laws."
Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason—and have not heard one since I undertook this venture—for continued discrimination against decent, hardworking members of our society on that basis.
Various federal and state laws have accorded certain rights and privileges to gay and lesbian couples, but these protections vary dramatically at the state level, and nearly universally deny true equality to gays and lesbians who wish to marry. The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.
The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.
It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation's multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.
Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state's support and benefits. The California Supreme Court described marriage as a "union unreservedly approved and favored by the community." Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.
What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.
The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate.
The second argument I often hear is that traditional marriage furthers the state's interest in procreation—and that opening marriage to same-sex couples would dilute, diminish, and devalue this goal. But that is plainly not the case. Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?
This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.
Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.
The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.