Voters in eight states will decide on Nov. 7 whether to amend their constitutions to ensure that marriage continues to be an institution limited to one man and one woman.
It’s too bad it has come to this, especially since the amendments won’t do much to restore marriage to its once lofty place in our society. But it’s not the Christian Right or the Republican Party that has brought us to this pass.
We shouldn’t have to clutter our state constitutions, much less the U.S. Constitution, with language defining marriage, but a few activist judges have left voters little choice unless they are willing to embrace judicially imposed gay marriage or its equivalent.
For millennia, all civilizations have understood marriage to exist exclusively between men and women (though many civilizations have chosen to allow husbands to marry more than one wife concurrently). Homosexual relationships surely have existed throughout history, but homosexuals have not sought marriage rights nor has any society formally sanctioned such relationships through its laws, that is until the late 20th century, and then in just a very few societies.
Now, some judges in the United States have cast aside tradition and law in favor of an experiment in reordering society, without the democratic consent of the citizens of the affected communities. Should it surprise anyone that a backlash has ensued?
Last week, the New Jersey Supreme Court decided that the state constitution "guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples." While the New Jersey justices didn’t go as far as their Massachusetts counterparts in actually ordering the state legislature to pass legislation giving the right to gay couples to marry, the difference may be more semantic than real.
Since New Jersey already allows for domestic partnerships through a 2004 law passed by the state legislature, the court was clearly insisting that the domestic partnerships law doesn’t go far enough because it distinguishes such relationships from actual marriages. New Jersey legislators appear likely to enact a civil union statute in response to the court’s action, but there is no guarantee that some future court decision won’t invalidate civil unions as unconstitutional, too, that is unless New Jersey amends its constitution to limit marriage to the union of one man and one woman.
Some of what gay couples say they hope to gain through legislation or court orders conferring them with marriage rights could easily be achieved by other means. Gay couples, just as any two individuals, can jointly own property together, and the rights to such property upon death or dissolution of the partnership can be spelled out in the contract itself.
States could — and should — pass laws that allow adults to choose who will make medical decisions for them in the absence of a spouse. Why should only homosexuals and not other single persons be allowed to designate someone other than a family member to make medical decisions if they become incapacitated?
Many employers and some states already allow gay couples to share medical and pension benefits. So long as the individual is paying the premiums, why shouldn’t he be able to designate who participates? And if the pension is deferred compensation that the employee has already earned, why shouldn’t she be able to leave what is in the account to the beneficiary of her choice? And why should such benefits be available exclusively to individuals who have a sexual relationship with each other?
The most nettlesome issue for gay couples involves parental rights when one partner is the biological or adoptive parent and the other has not adopted (or in some cases not been allowed to adopt) the child. If something happens to the non-adoptive or non-biological parent, the other person who has cared for and raised the child, often for the child’s entire life, does not have the right to obtain custody or, in some cases, even maintain a relationship with the child. This doesn’t seem fair to the parent or to the child. But this issue also can be specifically addressed without redefining marriage.
As with abortion 30 years ago, states were on their way to defining public policy on the rights of homosexual couples when the courts intervened. The initiatives on this year’s ballot will simply ensure that this tough social and moral issue is resolved through the normal democratic process and not by a few judges.