Let each state decide for itself on gay marriage

February 10, 2004|By Steve Chapman

CHICAGO - Gay rights advocates think it's a great thing that Massachusetts has legalized gay marriage. Traditionalists who reject the idea think judges in one state shouldn't be allowed to force their preferences on the nation. And never the twain shall meet. Right?

Wrong.

In reality, they both have a valid point. Given the heated rhetoric, there may not be much interest in finding a compromise. But there's one available that would go far to satisfy the legitimate demands of each side.

The Supreme Judicial Court of Massachusetts said last week that under the state's constitution, same-sex couples must be allowed to enter into marriage just like male-female couples. Normally, most of us care as much about Massachusetts marital law as we do about fare increases on the Boston subway. But opponents of gay marriage are scandalized at the idea that people who have been enjoying unconventional sex with no strings attached could find a way to lock themselves into long-term commitments.

This, they fear, would irreparably damage traditional marriage - a concern on the order of worrying that the Gay Games are going to destroy the Olympics. The Massachusetts decision, in their view, is a breach in the dike of tradition.

In one sense it is. But some traditions deserve to be poked full of holes. One is the treatment of homosexuals as criminals and second-class citizens. Last year's Supreme Court decision striking down sodomy laws was an overdue application of the principle that the state has no business supervising what consenting adults do between the sheets.

Legalizing permanent commitments between same-sex couples would recognize the reality that countless gay couples live together in long-term relationships, with some of them raising children together. Given that, it's pointlessly destructive to deny homosexuals the chance to bind themselves in the same way that heterosexual couples do.

If the court's decision stands - that is, if the legislature doesn't overrule it by amending the state constitution - Massachusetts will carry out an experiment that could change minds in the rest of the country. The nice thing about living in a federal system is that states can adopt different approaches, and anyone who doesn't like his or her state's policy can go somewhere more congenial.

But the critics of the ruling have a justifiable concern. They warn that once gay marriage is allowed in one state, the other 49 will be powerless to enforce a contrary preference. The U.S. Constitution says that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." The implication is that if two gays get married in the Bay State, they can migrate anywhere from Alaska to Alabama and demand to have the union legally respected.

That's not certain by any means. The "full faith and credit" rule has its limits, and this issue may lie beyond them. The Supreme Court could very well say that other states may disregard unions that violate their fundamental conception of marriage.

Congress did its best to encourage this outcome in 1996 when it passed the Defense of Marriage Act. It doesn't prohibit gay marriages but says neither the federal government nor any state has to honor them. That was the position taken during the 2000 campaign by Dick Cheney, who said, "I think different states are likely to come to different conclusions, and that's appropriate."

But many conservatives aren't willing to let states choose. They prefer a constitutional amendment declaring that "marriage in the United States shall consist only of the union of a man and a woman." The entire nation would have one uniform policy.

Many gays, of course, would like to see this ruling force every state to recognize same-sex marriage. But to ask for that invites a backlash that could lead to a constitutional ban. A compromise is in order: Let each state decide whether to allow gay marriages and to accept those transacted elsewhere. That may be what the Supreme Court decrees, and any talk of altering the Constitution should wait until the court has spoken.

Gay marriage is a good thing. But for one state supreme court to override the choices of every other state is not. We can have one without the other, and we should.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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