Gay Marriage…It is not about marriage or being gay; it is about of the right to the equal protection of the law

by Dwight Owen Schweitzer

I have listened, like most Americans’, to the ever increasing debate about gay marriage and while I always thought that term was an oxymoron, I certainly began to wonder what all the fuss was about. Unfortunately being a lawyer eventually forces you to think like one about almost everything and the legal implications of the gay marriage debate finally got to my intellectual equivalent of critical mass.

The problem, as I came to see it, comes down to the huge distinction between the church and the state’s versions of what’ marriage’ means. The focus of this piece isn’t on the religious issues surrounding gay marriage which I think are totally irrelevant to the real issues in the debate. I think the focus of what the discussion ought to be about, to begin with at least, is what are the purely legal implications of marriage? That is where the state has a role to play and not coincidentally, has increasingly inserted itself over the course of our history. Women had few rights at the time of the framing of our constitution but before too long laws were enacted on all manner of issues effecting the marriage relationship running the gamut from requiring monogamy of the Mormons before they could be awarded statehood, to the joint tax return and the so called ‘marriage penalty’ in the tax laws.

When viewed from this perspective it seems that there are a lot of laws surrounding the status of being married which have little to do with whether the parties are of the same gender or not. Rights of inheritance, rights of what we generally think of as ‘next of kin’; tax preferences, indeed a plethora of laws both state and federal which give a special status for both good or ill to being “legally” married. Just ask anyone who has gone through a divorce for openers. Yet the discussion always seems to focus on the religious aspects of marriage while those who are doing the loudest ‘discussing’ are the ‘lawmakers’ to whom the religious aspects should be not only separate but completely outside of the dialogue if the separation of church and state means anything.

The ‘lawmakers’ however are in a dilemma when the discussion is devoid of religious implications and limited strictly to legal ones. The reasons are simple; the law is supposed to be gender neutral unless gender specific laws are required by gender specific differences such as a woman’s right to an abortion. I suppose a man has a right to an abortion too but that is a topic for another piece so to speak. For now ‘hearken back to those thrilling days of yesteryear’ and remember the arguments used to defeat the Equal Rights Amendment (for women) and how it was all so unnecessary. By now you may be wondering where all this is leading and who could blame you. It is all about the Constitution and how it views and treats issues of gender. By any examination, what is clear is that the real issue is not the right to “gay marriage”, it is about the right to equal protection of the law although I have yet to hear anywhere a proponent of gay marriage arguing that they are being deprived of the equal protection of the law guaranteed to every citizen by the U. S. constitution.

All of the rights, obligations, duties, and privileges that attach to being married have less and less to do with gender as our society moves toward actual gender neutrality in everything from the workplace to the armed forces. While I am reasonably sure that those who are gay and want to be ‘married’ would like to have some sort of ceremony sanctified by some officially sanctioned individual, that is the emotional side of the attachment in much the same way as any ‘traditional’ marriage ceremony is an exchange of personal vows of love and devotion to one another. The legal stamp and its’ effect is more of a by product of the ceremony unless of course a pre nuptial agreement was the ‘efficient cause’ of getting married rather than the ‘couple’ just going on as they were ‘pre nuptials’.

I am specifically omitting the issue of children only because in today’s world marriage and children seem to not only have less and less to do with each other factually and legally but gay ‘couples’ have been allowed to adopt or been in the legally recognized relationship of parent to child for some time. More importantly, it is only relevant if the particular gay couple wants it to be. What really troubles me and what prompted this piece is that once the church and states’ unique interests and areas are allowed to overlap, the civil rights aspects surrounding gay marriage get blurred as a result, and if there ever was an issue deserving of clarity this is it.

Casting the gay marriage issue in purely civil rights terms makes it a constitutional right if the argument is posited in terms of the guarantee to equal protection of the law. To see this from a different perspective, lets just forget about gay marriage or any other kind of legally recognized same sex ‘union and simply argue that we should abolish all of the ‘perks’ that traditional marriage legally affords those who are in that ‘honorable estate’ because from a constitutional perspective those are equally valid positions, as equal protection can also be the equal lack of protection.

Once we accept that “all men (and now women) are not only “created equal” but are also entitled to the equal protection of the law, the choice of which sex one wishes to confer that special status upon becomes or ought to become as legally irrelevant as it is constitutionally irrelevant. Add to the discussion the recent heightened genetic understanding of what is clinically known as gender disphoria, and its’ resultant rise in sexual reassignment surgery, and the distinctions between the sexes become continually more blurred and the right to uphold such distinctions, less legitimate either legally or morally.

While the proposition that we live in a homophobic society fueled by the religious right cannot seriously be argued; the gay community should be faulted for focusing attention away from the rights and obligations they seek to confer on a relationship that are of purely legal significance. The emotionally charged use of the word ‘marriage’ which, fortunately seems to be increasingly replaced with new terms like ‘civil union’, does little to clarify the real issues. While no one has sought my advice on this issue, I cannot help but suggest that if the gay community began attacking the perks given to traditionally married couples rather than seeking them, then all the beneficiaries of those perks who have a vested interest in keeping them will worry more about losing them and less about extending them to a new class of ‘citizens’.

By making the equal protection argument and claiming that they are denied the equal protection of the law in having to choose a partner of the opposite sex to get the unique ‘perks’ afforded that special group (which has no constitutional recognition per-se) the discussion stops being about ‘giving rights’ to a discussion about taking them away. Not a likely result but we tend to be a lot fairer as a people when our prejudices become less important than our vested interests.


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