Monday, May 15, 2006

Don't like gay marriage? Don't have one!

"I basically say, Mr. Vice President, right now marriage is under attack in this country. And we've seen activist judges overturning state by state law, where state legislatures have passed laws defining marriage between a man and a woman, and that's being overturned by a handful of activist judges around the country. And that is why we need an amendment to come to the floor of the United States Senate to define marriage as that union between one man and one woman." - Bill Frist, quoted on, "First lady: Don't stump on gay marriage ban"
Tired old lines like these probably barely deserve any response, except it's amazing how much they get repeated. There haven't been that many rulings in favor of gay marriage. The most notable, obviously, is in Massachusetts, and that has no bearing in other states (not that the "states' rights" crowd actually cares). As far as federal courts are concerned, statutes have been knocked down for being seen as overly discrimatory or irrational, but so far none have overtly granted any additional rights to gays.

The boldest federal case law to actually favor gay rights has been Romer v. Evans, 517 U.S. 620 (1996), which basically held that it is unconstutional to require discrimination against gays in a particular case. Specifically, some Colorado cities had ordinances banning discrimination against gays, which apparently threatened the collective masculinity of Colorado as a whole. In response, voters in Colorado passed "Amendment 2," which simply banned local anti-discrimination legislation. The Colorado Supreme Court ruled the anti-anti-discrimination amendment was unconstitutional under a standard known as strict scrutiny (the highest standard of equal protection judicial review in the United States).* The Supreme Court of the United States (S.C.O.T.U.S.) actually relaxed the ruling by the Colorado Supreme Court, finding instead that the strict scrutiny test didn't fit, but that the statute was still unconstitutional simply because it lacked a rational foundation. In other words, a locality doesn't need to accomodate, say, municipal benefits to gay people, but the state is over-discrimatory if it goes out of its way to prevent a locality from recognizing specific benefits for homosexuals in any form. Put simply, S.C.O.T.U.S. found that there wasn't any rational basis in law to prevent a municipality from granting gays benefits, perhaps because the benefits didn't burden anyone outside the localities where they were offered anyway. Naturally, there's a case to be made that the S.C.O.T.U.S. was being overbearing, but regardless, the Colorado amendment was stupid. (The test S.C.O.T.U.S. employed was called the rational basis review or mere rationality.**

Wow, you must be thinking, that's a real war on heterosexuality right there. There have been other isolated rulings at the federal and state level, including one in Vermont that required the state to recognize either gay marriage or "civil unions." However, no matter what Frist says, gay marriage is an anomoly in Massachusetts, not a looming "threat."

Frist is right though. There is most certainly an attack on marriage, and his party is leading it. This constant patronizing tone about what constitutes marriage in the eyes of God is, in the end, going to harm the institution more than two men or two women seeking state-sanctioned matrimony together. For all this talk about marriage being destroyed by allowing homosexuals to enter into marital contracts, nobody has yet pointed out a case of homosexual marriage actually undermining a heterosexual marriage. At the very most, the shrillness of the debate is probably just going to turn off some heterosexuals to marriage.

What makes this debate so sinister is not what is said, but rather what isn't said. Until a few years ago, attacks on homosexuals had nothing to do with marriage. They had to do with homosexual promiscuity, which granted, was a serious problem. To this day, many homosexual men regularly take dangerous sexual risks by having unprotected sex with multiple anonymous partners. That may or may not have any moral implications, depending on your world view, but it was a public health problem—one that is probably more responsible for the spread of HIV than any other human behavior. Times have changed, however, and now many homosexuals are calling on state legislatures to recognize their right to have long-term, monogamous relationships.

People like Bill Frist can't recognize that homosexual relationships may actually have staying power. While they once complained that homosexuals just had hedonistic sex with no regard for consequences, they're now complaining that homosexuals are trying to be monogamous. Frist is offended by the very thought of two men having a long-term, stable relationship.

Of course, equalizing gay marriage to the same status as heterosexual marriage has other side-effects that surely offend the self-appointed guardians of public virtue. Medical benefits? Visa applications? Oh no!

The sad thing is that Laura Bush, wife of possibly the worst president of the United States ever, is the civilized one here. At least she'd rather see us talking about, say, healthcare, than what homosexuals do with their personal lives.

* Strict scrutiny, in a nutshell, asks if a constituional right is being taken away, or if the state is attacking a narrow suspect class. For instance, if the Colorado law prohibited benefits for black people, strict scrutiny would have been applied. However, under strict scrutiny, homosexuals are not a suspect class.

**Most laws scrutinized under rational basis review end up being upheld. The rational basis review simply asks, "Did the writers of this law just pull a rabbit out of their asses?" It's pretty hard to do that if you're not overtly taking away constitutionally protected rights, which benefits for homosexuals are not, or in some other way violating the letter of the constitution. Romer was an anomoly in the sense that it failed rational basis review.

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