Maryland same-sex marriage bill: Poorly thought out, poorly planned for

March 07, 2012

There is serious confusion about the basis (legal or otherwise) for redefining an ancient human institution (marriage) to fit the social mores of 21st century society. The conservative view is that marriage as traditionally defined is an ancient human institution that predates civil society and therefore deserves the respect of the more recently established civil institutions that may support it; the more modern view, apparently shared by the governor and by a majority of the Maryland legislature, is that the term "marriage" can be redefined by an existing legislative majority without regard to that tradition.

The basic principle in Maryland seems to be that "marriage" is whatever the majority in the legislature defines it to be, without regard to those millenia of human experience that preceded us.

Some of the most profound challenges to our traditional concept of marriage are being proposed, not by gays and lesbians, but by polygamists living in compounds in the West. These individuals have seized upon the current debate about gay marriage to suggest that constitutional concepts of "equal protection" and "due process" can only mean that they should be free to define "marriage" to mean whatever they choose it to be — whether an arrangement among one man with several women, or, presumably (assuming we're applying principles of "equal protection" here), to one woman among several men.

The principal point here is that, once one departs from the traditional concept of "marriage" as involving a special relationship between one man and one woman, there really is no logical way to limit endless challenges to that definition, with the attendant consequences.

A final observation is that our traditional law of the family has not yet been sufficiently "stress tested" to adapt to a world of same-sex couples. Who, in a same-sex couple divorce, should pay alimony? Who should pay child support? Who should have custody of minor children — whether adopted or generated through biological contributions of one of the marital parties? Couples may have attempted to address these issues "contractually" prior to the most recent statutory developments, but what is the effect of those agreements now that Maryland same-sex couples can be legally married? Doesn't Maryland family law supersede those prior contractual commitments? The bottom line here is that the adoption of the same-sex marriage bill in Maryland was poorly thought out and poorly planned for.

Robert Helm, Ellicott City

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