I am on record as favoring homosexual marriage, a position that puts me at odds with many of my conservative friends and especially with religiously motivated conservatives. I favor the extension of the ancient institution to cover this new case primarily on two grounds.
Some Gay activists (Andrew Sullivan comes to mind) argue that marriage will help foster a culture of responsibility among male homosexuals. I have my doubts; however, this was precisely one of the benefits of traditional marriage, and if one believes in the institution, as I do, it makes sense to see if it will work its magic once again. So long as marriage is understood as a relationship of mutual responsibilities, backed up by the recognition of the state, then I think the growth of a marriage culture among Gay Americans gives them a stake the institution. That will strengthen marriage.
Second, I think that many homosexual couples have relationships that function exactly as a marriage does for heterosexual couples. It is a matter of common decency for the state to recognize that each partner in a same sex couple be able to have the same rights of medical consent for one another as a husband and a wife do. The creation of alternatives to marriage like civil unions, etc., weakens marriage.
That said, I am also opposed to judges writing their political preferences into constitutions. I am no authority on the Constitution of the State of California, but I very much doubt whether it requires Gay marriage. I know that the U.S. Constitution does not. For contrary to what my esteemed Keloland colleague Cory Heidelberger says, laws restricting marriage to relationship between a woman and a man does not treat homosexuals differently "just because they're different." It treats homosexuals the same because they are the same. In South Dakota a homosexual man cannot marry another man, but neither can a heterosexual man. Both of them are equally entitled to marry a woman. Whatever may be wrong with a law that treats everyone the same way, it can't be inequality.
Proponents of Gay marriage liken it to interracial marriage, but again the logic is all wrong. Laws against miscegenation were intended to prevent the "commingling" of the races, so to keep them as segregated as possible. Laws which do not allow men to marry other men would be more like a law which did not allow a Black American to marry within his or her race. Gay marriage would make it easier for homosexuals to form discrete and insular communities, if they are of a mind to do so. Whatever may be wrong with laws that do not allow sex marriage, it can't be segregation.
Marriage laws always involve discrimination. They discriminate against a person who want to marry someone who is too young. They do not allow a person to marry his sister, or mother. What about second cousins? That's a judgment call. Marriage laws in the United States do not allow any two people to marry a third, no matter how much the trio may want it. Beyond the second case mentioned above, constitutions provide no guidance. If you want Gay marriage, maybe to way to get it is to persuade your fellow citizens that it is good policy.
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