Last edited: February 06, 2005

It’s Not Too Late to Beat Back the Push for Same-Sex Marriage

Portland Press-Herald, July 14, 2003
Box 1460, Portland, ME 04101
Fax: 207-791-6924

By M.D. Harmon

It’s common in some circles to deride social conservatives’ objections to the pending expansion of “marriage” to same-sex couples as mere “religious bigotry.”

True, that depiction betrays how the Forces of Tolerance throw slurs around in practicing their own intolerance. However, it also ignores real objections that others have to the expansion of powers the Supreme Court arrogated to itself in the recent 5-4 decision overturning a Texas law prohibiting homosexual sodomy.

While the law had its supporters, I (like Justice Clarence Thomas) would have voted against it if I were a Texas legislator. And the Court could have overturned it merely on an equal-protection basis because it exempted mixed-sex couples.

Still, Justice Anthony Kennedy, writing for the majority, made Sen. Rick Santorum, R-Pa., into a prophet.

Recall that Santorum said a couple of months ago that, if the Supreme Court ruled there was an absolute privacy right “to consensual sex within the home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

It isn’t just conservatives who think that is exactly what Justice Kennedy did when he wrote that states and courts should not attempt to “define the meaning of the (intimate sexual) relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.”

As Justice Antonin Scalia noted in dissent, “This effectively decrees the end of all morals legislation.”

Ah, but Scalia’s one of those troglodyte Christian killjoys. And even if he’s right, who cares? Those who try to “impose their morality on others” have no right to do so.

Well, pause to consider that laws criminalizing prostitution do just that. The same with laws making bigamy or incest illegal. After all, when you’re talking about consenting adults, those are mere “moral” issues. Subjective. Personal. Private.

That, of course, is just what Scalia was saying, and he’s not the only one who sees this decision as flawed. Jeffrey Rosen, the legal affairs editor at The New Republic, a liberal magazine that often crosses swords with conservatives, wrote on June 30, “(A)s a constitutional matter, Lawrence (the sodomy case) is worse than Roe (Roe v. Wade, the 1973 case striking down all abortion laws).”

Why? Because in Lawrence, “the Court embraced and extended a sweeping and amorphous right to sexual liberty that is even harder to locate in the text or history of the Constitution than the right of reproductive autonomy that the Court discovered in Roe.” Rosen called it “an unprincipled and unconvincing constitutional methodology” based on “flimsy” constitutional roots that will energize Americans in opposition as Roe did over abortion.

Rosen is no conservative. One of his reasons for lamenting the decision is that it will be applied to the question of gay marriage, creating “a political backlash” that “would be so swift and dramatic . . . that it would set back the cause of gay and lesbian equality rather than advancing it.”

Indeed, gay activists have said they intend to apply the decision nationally if things go well for them at the state level. The Massachusetts Supreme Judicial Court is expected to rule this week in a suit against that state’s law limiting marriage to a man and a woman. Legal experts predict the law will be voided, creating a precedent that, in conjunction with Lawrence, will spur a national conflict that may well rival the one over abortion.

Why resist same-sex marriage? Because it will irredeemably alter marriage as a social institution. Consider a letter the president of the Canadian Conference of Catholic Bishops, the Most Rev. Jacques Berthelet, wrote to Premier Jean Crétien objecting to that nation’s legalization of same-sex marriage:

Marriage, he wrote, as “the lasting union of a man and a woman to the exclusion of others, pre-exists the State.” Because of that, and because it is fundamental to the well-being of society, it “cannot be modified” by any court or law.

This is not discrimination, Berthelet says: “Rather, it is the contrary that is true. Enlarging and thereby altering the definition of marriage in order to include same-sex partners discriminates against heterosexual marriage and the family, which are thus deprived of their social and legal recognition as the fundamental and irreplaceable basis of society.”

A religious view? Sure, but that doesn’t mean it’s incorrect. Social analyst and commentator David Frum said as much when he wrote on June 19 that those who say same-sex marriage won’t change heterosexual marriage are plainly wrong: “Gay marriage opens the doors to a whole series of changes in the law of marriage. Not the law of marriage for gays—the law of marriage for everybody. . . . It’s a good guess, for example, that we will see an end to the concepts of ‘motherhood’ and ‘fatherhood’ in our legal practice. The law will increasingly see couples as interchangeable ‘parents.’ . . . You can’t have maternal preferences when both parents claim to be the mother.”

As he notes, any “new rules will mean new behaviors for straights as well—and that these new behaviors are very likely to be undesirable.”

However, as much as gay advocates and imperially minded judges may not like it, Americans are not powerless. Next week we’ll discuss fighting back with a potent weapon: the Federal Marriage Amendment.

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