Walter Berns
Almost 70 percent of the American people have indicated their opposition to "same-sex" marriages (males with males, females with females), but neither they nor their elected representatives are likely to cast the decisive vote in this matter. Like other moral issues- abortion, for example-this one is scheduled to be decided in the courts.
In fact, it may already have been decided (potentially, for the entire nation) by Hawaii's state supreme court in a case involving the denial of marriage licenses to three gay and lesbian couples. Hearing the case on appeal in May 1993, the court said that the state's marriage statute will be held to be a violation of the equal protection clause of the state constitution-unless the state can show a compelling reason why the "marital relation" should be restricted to a male and female.
No one, not even the opponents of same-sex marriages (mainly Catholics, Mormons, and Evangelicals), believes that the state of Hawaii will be able to do this. As any experienced litigator will tell you, the compelling state interest test is almost impossible to meet. Indeed, it has been the means by which the courts have dismantled a variety of discriminatory state laws. Here the state constitution prohibits discrimination on the basis of sex, and, to quote one of the proponents, if Wilma is permitted to marry Barney, but Fred is not permitted to marry Barney, then Fred is obviously being discriminated against on the basis of his sex.
What argument can the state make? It might be inclined to quote the Bible; but that argument fails on church-state grounds. Or argue that, properly understood, marriage is a sacrament; but the state permits civil marriages, and there is nothing sacramental, or even solemn, about a marriage performed by a justice of the peace. Or that, by definition, marriage is a contract according to which the parties "reciprocally engage to live with each other during their joint lives," and that homosexual relationships (at least in the case of males) are inherently unstable; but half of the male-female marriages contracted in this country now end in divorce. Or insist that marriage is traditionally and necessarily connected with the family, which is to say, that it is entered into with the idea of children (and offer as proof of this the once universal practice of the wife taking the husband's name in order that it then be passed on to the children as evidence that the husband is indeed their father); but many a marriage is childless and, what is more, is intended to be childless and no less legal for that. Or, finally, and in desperation, that homosexuality is unnatural; but, as Freud told us, the natural (or as he put it, the original) purpose of man's "sexual drive" is the gaining of pleasure, and it is obvious that pleasure can be gained in a variety of ways.
All these failing, what argument can succeed, not with the public but in the courts? The state has been put in a position similar to that of parishioners who, when the bans were published by the priest or minister, used to be asked (and in some places may still be asked) to declare whether they know of any "cause, or just impediment, why these two persons should not be joined in holy matrimony." But, unlike those parishioners, Hawaii is being asked to do this at a time when no cause is likely to be accepted and no impediment recognized.
The consequences of its failure to prevail on retrial (now scheduled for this summer) will not be confined to Hawaii. Like it or not, every state in the union will be affected. Homosexual couples from around the country will go to Hawaii in order to join in marriage, just as heterosexual couples from around the country now go to Nevada in order to separate by divorce. Then, on their return home, the couples will claim all the benefits, particularly the financial benefits (social security, pensions, inheritance, joint tax returns, dependent tax deductions, etc.), enjoyed by other married couples. Thus, the states will be asked to recognize homesexual marriages, something no state has been willing to do.
The usual practice-it is called "comity"-is for a state to recognize all legal marriages contracted in other jurisdictions. A handful of states have formalized the process by adopting what are called validation statutes. Nebraska's, a typical example, reads: "All marriages contracted without the state, which would be valid by the laws of the country [or the state] in which the same were contracted, shall be valid in all courts and places in this state." This was obviously written without regard to the possibility that the day might come when some state would legalize homosexual marriages, thereby making them legal in Nebraska. But that's the plain consequence of the statute.
And it is not the only consequence. If, under the terms of its own law, a state is required to recognize a homosexual marriage legally contracted in Hawaii, and since, under the terms of the Fourteenth Amendment to the Constitution of the United States, it is forbidden to "deny to any person within its jurisdiction the equal protection of the laws," then, in the present climate, it will be hard-pressed to avoid having to recognize a homosexual marriage performed locally.
In the wake of the Hawaiian court's decision, the state of Utah sought to prevent this by amending its marriage validation statute, specifically excluding homosexual marriages. So far, so good. But Article IV of the Constitution of the United States contains the following provision: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Under this provision, a state must recognize a divorce granted in Nevada, and the day may come when it will be required to recognize a homosexual marriage performed in Hawaii.
What now stand in the way of this possibility are a couple of Supreme Court decisions distinguishing between a divorce and a marriage: divorce being regarded as a legal judgment (and thus entitled to full faith and credit regardless of the public policy of the respective states), and marriage as merely a public act or record (and thus not so entitled). But the Court will be under pressure from the gay community to abolish this distinction. Indeed, it has already been abolished in the case of common law marriages, which, like divorces, require a legal judgment to affirm their existence. This ruling was delivered in 1991 by the Superior Court of New York, and so far applies only in New York, but the issue is certain to be raised in other states and, since it involves a federal question, will ultimately have to be resolved by the Supreme Court. If, as is likely, the Court agrees that states must give full faith and credit to common law marriages entered into elsewhere, why not to other legal marriages? It would certainly be bizarre and unlikely if common law marriages were to be regarded as having a higher legal status than ordinary, legally licensed marriages.
What can the states do to prevent this? Surely they cannot rely on Hawaii to make their case. Judging from the debates now taking place there, the state government of Hawaii can be likened to Byron's Julia, who, "whispering [she] would ne'er consent-consented." Led by Utah, the other states will put up a fight, but they are not likely to prevail. Unlike their opponents, the gays and lesbians are well organized, and well supported in the liberal press and by the ever-vigilant ACLU, all of which makes their victory likely. With what consequences? Very few, they insist; and none of them unsettling. All they want, or all they say they want, is to be treated like everybody else.
Fair enough, up to a point; in fact, quite right. But if their goal is equal treatment, why are they opposed to laws-such as the compromise measure proposed in Hawaii-requiring private businesses and state and local governments to accord to "domestic partnerships" the same benefits and privileges enjoyed by regularly married couples? Since local governments and thousands of businesses around the country are already doing this voluntarily, the goal of equal treatment would seem to be easily within their reach.
But whatever the case with the rank and file, some high-profile gays are obviously after bigger game. They want to change the marriage laws because they want to change the culture, or, as they are inclined to say, the "bourgeois" culture. When viewed, as they view themselves, as part of the broader countercultural movement, it becomes apparent that their purpose is to undermine the traditional idea of the family: the family as the building block of society, the family of fathers and mothers who naturally care for their children, who regard them as hostages to the future, and, because of this, care for the society in which those children will have to live.
Students of the Republic will know that Plato proposed to abolish the family, not merely to undermine it but to abolish it altogether. Less well known, perhaps, is Jean-Jacques Rousseau's response, which is very much in point here. Plato, he said, would have us believe that there is no need "for a natural base on which to form conventional ties; as though the love of one's nearest were not the principle of the love one owes the state, as though it were not by means of the small fatherland which is the family that the heart attaches itself to the large one; as though it were not the good son, the good husband, and the good father who makes the good citizen!"
A very sensible statement that, one that the Founders of this country would have found congenial, or at least acceptable. But because it is not likely to carry much weight with our sexually liberated judges, I propose, and quite seriously, that the Republicans do what the Democrats cannot and, therefore, will not do, namely, adopt a plank in their 1996 party platform pledging their opposition to same-sex marriages. That would send a message to the judges; it might also win the presidential election.