WHY WE NEED A NATIONAL DEFINITION OF MARRIAGE: Maggie Gallagher

...What will happen if we fail to affirm a national definition of marriage? Sex, love, and intimacy are private things. Marriage is a public act. A person who marries undergoes a change in status that others must acknowledge. That's why the advocates of single-sex marriage won't settle for civil unions. They hope and intend for their vision of marriage to become the new norm. If the marriages of same-sex couples are to be publicly acknowledged as the full equivalent of marriages uniting husband and wife, everyone's ideas about marriage will have to change.

THIS IS A GOOD THING, say the same-sex-marriage advocates, who take great comfort from the analogy to interracial marriage. In 1967, when the Supreme Court unanimously overturned laws barring miscegenation in Loving v. Virginia, a majority of Americans supported those laws. A decade later, under the tutelage of the courts, public opinion had changed dramatically. Advocates believe the same thing will happen with same-sex marriage. After a period of initial opposition, a reeducated public will come to embrace this new vision of marriage. ...

If favoring the traditional understanding of marriage is analogous to favoring racism, then churches, faith-based organizations, and schools that continue to teach that marriage is exclusively the union of a man and a woman will eventually face penalties in the public square. Yes, the First Amendment will protect their right to sit in a corner and preach what they like. But, as a group of five legal scholars recently noted in an opinion for the Massachusetts Catholic Conference, if the courts actually equate laws defining marriage as the union of husband and wife with laws barring interracial marriage, then single-sex marriage statutes seriously threaten the ability of organizations adhering to traditional marriage to hold broadcasting licenses, have their colleges accredited by public bodies, or secure tax-exempt status for their schools and charities.

The Massachusetts court that decided the Goodridge case last November, of course, has already held that the traditional view of marriage is irrational and therefore must be based on animus. But suppose the courts pull back. Suppose they develop a surprising new tolerance for traditional views. The result will still be a quite devastating fragmentation of our marriage culture. In post-Goodridge America, people will be viewed and treated as married in some states (or counties, or small suburban hamlets) but not in others. And the gap between religious marriage and civil marriage will widen to a chasm. ...

And yet, in the midst of the utter fragmentation of our marriage culture, a growing number of Republican political leaders appear poised to abandon altogether the idea of a common marriage culture. Rather than defend marriage, they propose a procedural fight. Drawing in part on federalist and libertarian principles, they sally forth crying, "Leave it to the states!"

Thus, Senator Orrin Hatch has proposed a constitutional amendment that is said to be fast gaining ground among GOP senators. It reads: "Civil marriage in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

There are many problems with this language. Courts that have discovered a right to same-sex marriage in general commitments to due process or equal protection are no doubt capable of discovering that "the people" have a right to same-sex marriage. On its face, the Hatch language appears to overturn the federal Defense of Marriage Act, which defines marriage as the union of a man and woman for the purposes of federal law.

Some Republican support for "leaving it to the states" stems from the mistaken view that a procedural issue is a better political issue than marriage itself. But as the nationwide push for gay marriage becomes unavoidably obvious, Americans' support for a federal marriage amendment that defines marriage as the union of a man and a woman is growing fast. ...

More fundamentally, "leaving it to the states" will advance the process of educating the American people in the idea that there is nothing special or important about marriage as we have always defined it--about preferring husbands and wives who can become fathers and mothers. It will further the process of persuading Americans that we don't need a shared marriage culture.

more
posted by Eve at 7:54 PM | link

0 Comments:

Post a Comment

<< Home