Ever since the Canadian Supreme Court ruled that limiting marriage to people of opposite gender constituted discrimination, I’ve been listening to the ever more strident discussion on the topic of permitting gay marriage in this country.
Now, I’m all in favor of it. I see no way in which society can be harmed by allowing people to publicly and legally obligate themselves to each other without regard for plumbing. There used to be laws forbidding people of different races to marry, on the grounds that it was unnatural. Well, guess what. Same-sex pairing occur in animals that mate for life upon occasion. Those creatures are operating on instinct. I’d like to know what is unnatural about something that occurs in wild nature. (The same folks keep trying to define marriage as a relationship between “one man and one woman”, based on the Bible. Umm, have they read it? How many wives did Solomon have? Or Jacob? Or a number of other patriarchs? Polygamy wasn’t the exception; it was the rule.)
But both sides seem to be trying to turn the United States Supreme Court decision on the Texas Sodomy Law into the mountain that will permit the speedy slide of American law into permitting same-sex marriage. And I’m sorry. It won’t work. That decision isn’t a ski slope with 6 feet of new snow; it’s barely a six inch mound in a kid’s sandbox.
What that decision said is that what happens between consenting adults behind closed doors is not the state’s business, now or ever. But that’s all it says. That is built upon the notion of a right of privacy implicit in the Constitution. (Whether such a right really is implied is an argument for the legal theorists, and I will leave it to them.)
Marriage is a different beast. Legal civil marriage is the public recognition and sanction of what is, from a legal standpoint, a public social contract. We’ve wrapped it around with ceremonies and mysteries and romance and mystique, but its core is very simple: the people involved are declaring publicly, to the community, that they will be obligated to and responsible for each other and any children they may have (or adopt), and the community is acknowledging that declaration. Civil marriage does not require a sexual relationship, and by the same token, a private long term relationship involving sex does not create a civil marriage. If it did, we wouldn’t be having this discussion.
I don’t think there is any good reason in law to care whether the individuals undertaking that commitment happen to have similar or opposing genitalia. I consider it irrelevant. (Of course, I also consider the number of spouses irrelevant. Complicated beyond my ability to understand how the relationship can work, but irrelevant from a legal perspective.) The problem is that what is relevant to the law and what society is willing to support are two different things. And the Texas Sodomy Law decision doesn’t change what society supports. It only gets society’s nose out of the bedroom, where it never should have been in the first place. We’ve a ways to go before we see any legal or statutory acknowledgement of non-traditional relationships of any sort.