Same job, different uniform.

Friday, October 07, 2005

Civil Rights and Gay Marriage

In the continuing public spitting match regarding the desirability or viability of gay marriage, it seems to me that a number of valid points are being lost in the whirlwind or evaded because they are simply not debatable. And while it is true that heat produces light, in this instance, it seems, all heat produces is more heat…and, perhaps, hot air.

One must begin a discussion of this sort bearing in mind that gay activists have taken great pains to align their cause with the civil rights movement, even adopting the precise verbiage of that struggle. There is always a problem, however, when one is attempting to treat dissimilar items in identical ways: the results will not be the same. And so it is here with gay marriage.

In the civil rights world, the salient facts are that African Americans were denied the rights to vote, own property and go to schools their tax money helped to support…rights that whites both had and exercised. There can be no doubt that these rights were withheld in many places within the United States, and for many, many years after the Civil War. Further, there can be no doubt that equivalence of treatment as defined in the law required equal treatment for equal citizens, either male or female, born in the United States or naturalized as a citizen thereof. A citizen is a citizen.

Again, in regards to interracial marriage, the same principle applies. It is clear that men and women had been marrying each other in the United States for a long time during periods when interracial marriage was banned, and the only marked difference in the marriages that were proscribed and those that were now was the relative color of the participants. Men and women desired to marry, just like men and women had always married in the US…and some racial combinations of men and women were not allowed, the singular difference being one of melanin, not of type or gender.

Now. It is not even debatable that gays and lesbians are not and have not been actively discriminated against in regard to marriage. They have precisely the same rights as any other citizen of the United States, and, indeed, many, many gays and lesbians have gotten married over the years; some remain married today. Women are married to men, and men to women, regardless of their sexual orientation. There is no discrimination; in this instance, homosexuality is not an issue. If a gay man chooses to marry a woman, he may. If a lesbian chooses to marry a man, she may. What they may not do, just as any other citizen may not do, is marry someone of their own sex.

There are a good many possible varieties of marriage, in addition to gay marriages, that are proscribed by the law. Close relatives are not allowed to marry. Children younger than a particular age are not allowed to marry; at another, older age, they must have parental permission. People are not allowed more than one spouse. People may not marry animals. People may not marry inanimate objects (there is a story extant about the man who desired to marry his Trans Am, but it may be apocryphal).

Up until recently, these bans were never a problem. Then people with a different definition of particular words began to argue that the word "equality" as stated in the law meant that all actions involving two people must be treated equally, neatly dancing around the general understanding of civil rights, which is that all actions that are the same in actions in fact must be treated equally. There is a huge difference between these two understandings and this disagreement serves to bring into question all other societal and legal distinctions that set forth marriage as a one man/one woman proposition.

At this point, I am still uncertain in my own mind whether I truly have a problem with gay marriage qua gay marriage. I suspect that love is rare enough in the world that anyone who manages to find it, wherever they might find it (so long as it is a mutually consenting love between adults), ought to be encouraged and not condemned. Still, I find a significant, long-term difficulty with the idea that “We the People” ought somehow to be construed as the opinion of four or five people in black robes. The question of whether gay marriage should be allowed is manifestly a political decision, not one subject to adjudication by the courts. After all, when the courts attempt to move political questions beyond the purview of politics, such as in the Dred Scott case or Roe v. Wade, the question never truly dies…and is usually never truly solved without significant social, societal and cultural unrest, up to and including war. And those are truly the stakes of this question.

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