Barring same-sex unions is in the state's best interest

July 21, 2004|By GREGORY KANE

FIRST, NINE same-sex couples sued the state of Maryland, arguing that a 1973 law permitting marriage only between a man and a woman violates the state constitution. A week later, the U.S. Senate voted down a proposed constitutional amendment that would have banned same-sex marriage.

The Senate vote was no surprise. Most proposed amendments die in the federal legislature. The marriage amendment went the way of the proposed amendment to ban interracial marriages in 1912 and a 1914 notion that would have made divorce illegal.

The surprise is the Maryland lawsuit, which was filed courtesy of the American Civil Liberties Union. The ACLU arguing about the constitutionality of a state law? Before two weeks ago, I would have figured the ACLU thought the 10th Amendment - with its language about the powers of the state, not the federal judiciary - had been repealed.

The Maryland suit argues that the marriage law violates the due process and equality provisions of the state constitution. It just might. In fact, I could argue that the 14th Amendment's equal protection clause allows for gay marriage. I could argue that.

But I won't.

What I will do is use the argument that those on the left - including many who support same-sex marriage - use: compelling state interest.

That was the rallying cry in June last year, when the Supreme Court ruled in Grutter vs. Bollinger that the University of Michigan's law school could use race as one of many factors in admissions. The decision left Barbara Grutter - white, in her late 40s and the mother of two teenagers - out in the cold. She wasn't the right color for the law school's racial preference admissions criteria. A "compelling state interest" in racial and ethnic diversity trumped any 14th Amendment rights Grutter may have thought she had.

But if there's a compelling state interest in "racial and ethnic diversity," isn't there a similar one in preserving the nuclear family unit of husband, wife and children?

That was certainly the idea when Congress required that Arizona, Idaho, New Mexico, Oklahoma and Utah adopt anti-polygamy laws as a condition of being admitted to the union. You would have thought the First Amendment's protection of religious freedom, which specifically says Congress can't make a law prohibiting the free exercise of religion, would have applied to the Mormons who practiced polygamy. But the argument of compelling state interest carried the day.

Supporters of same-sex marriage see no compelling state interest in restricting marriage to male-female unions. In fact, they claim heterosexuals have ruined the institution of marriage. The rising divorce rate is proof of that.

Correction: Heterosexuals have not ruined the institution of marriage. The culture of whoopee - pushed, promoted and made darn near an imperative by those on the left side of the political spectrum who support same-sex marriage - ruined the institution of marriage. Put the blame where it belongs. Remember a guy named Barry Goldwater, who ran for president in 1964? During his campaign, Goldwater said repeatedly that America's moral values were declining. The forces on the left portrayed him as a threat surpassed only by the anti-Christ.

We've seen teen pregnancies and sexually transmitted diseases rise as a result of our choice. No, the vanguard of the sexual revolution never intended for that to happen, but if we've learned anything in the past 40 years, it's that we have to take into account unintended consequences. If we tamper with the institution of marriage as it is, we may get consequences we hadn't bargained for.

Yes, we can argue that if two people go down to any City Hall in the country and apply for a marriage license, then it's no business of the government if those two people are a man and a woman, or two men or two women.

But what if the man and woman are brother and sister? Or first cousins? What if it's a man and two women? Is it the state's business then?

How do we tell polygamists - or the incestuous, or God only knows who else might pop up and want to get hitched - that we'll extend marriage rights to gays and lesbians but not to them? How could we tell polygamy practitioners and any others who would come out of the woodwork if gay marriage is legalized that they can't get married if the state has no power to determine who can and can't get married?

The truth is, we couldn't. But we'd have to kiss the institution of marriage as we know it a solemn good-bye.

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