The Flip Side Of
Same-Sex Marriage
CBSNews.com from the
Web, December 9, 2006
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CBS News legal analyst Andrew Cohen has some thoughts on a "legal
head-scratcher" about same-sex marriage that emerged this week. -- Ed.
Turns out that same-sex couples were unable or unwilling to wait for the
nation’s intricate justice system to fully resolve the same-sex marriage
question before creating another legal head-scratcher — what to do about same-sex
divorce? Earlier this week, a trial in Rhode Island threw up his hands and
refused to decide whether a same-sex couple who had been married in
Massachusetts (where such marriages are legal, remember) could apply for a
divorce in Rhode Island (where such marriages are not).
Meanwhile, the named plaintiffs in that landmark Massachusetts same-sex marriage
case have split up, as have the folks who were high-profile plaintiffs in
California’s big same-sex marriage lawsuit. All over the country, in fact,
same-sex couples seem to be doing precisely what many opposite-sex couples do a
few years or months after they get married — they are getting separated and
divorced. People being people, no matter what their sexual orientation, I
suppose this was as inevitable as it is disappointing. The courts soon will
figure out a solution to the same-sex divorce question just as they are working
on some certainty about same-sex marriage. I can’t tell you how the Rhode Island
case will come out. But I do know that the law cannot delay for long the desire
of two consenting adults to separate their lives from one another.
Advocates of same-sex marriage and other gay rights issues have long argued that
all gays and lesbians really want in the end is be treated like the rest of
society. Opponents of this movement, on the other hand, have long argued that
same-sex couples are different because they cannot naturally procreate and
because history and our nation’s Judeo-Christian traditions have not recognized
their unions. This debate will go on forever and cannot be resolved to the
satisfaction of all. But what now cannot be disputed is that same-sex couples
have proven through their recent break-ups that they are, in this way if not in
many others, just like the rest of the millions of us who are divorced. We all
have failed to achieve or maintain the "sanctity" of marriage, whatever that
means. We all, and for better and worse, have contributed to the demise of the
institution as it once was known. So that "otherness" argument that same-sex
marriage opponents have used against gays and lesbians seems in this case at
least to me to have been knocked down a peg.
I’m a divorced dad. And because I failed at marriage I refuse on a personal
level to judge anyone, gay or lesbian, white or black, nice or mean, who is
hopeful or courageous (or just plain stupid) enough to give the institution of
marriage a shot. In fact, if I were the King of the World, I would preclude any
divorced person from ever voting in any election having to do with the same-sex
marriage. Why? Because by getting divorced, for whatever reason, I believe we
have forfeited our right to preclude others from trying to do better than we
have. I feel bad for the same-sex couples who have split. K-Fed and Britney
aside, I feel bad whenever any married couple splits up. But it happens. In
fact, divorce is about as normal these days, unfortunately, as marriage is.
That’s a reality, we now know, that also has transcended the once-stout
gay-straight barrier.
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