Gay marriage inevitable

State has no grounds to discriminate

By David French, from the Web, January 14, 2004

Kexington, KY -- During this election year, no cultural topic will be more hotly debated than the issue of gay marriage. Presidential candidates will debate the merits of a Federal Marriage Amendment (which would restrict the legal definition of marriage to the union of one man and one woman), and legal activists will continue to battle over the meaning and scope of the recent Massachusetts Supreme Judicial Court decision.

These debates may raise funds and mobilize voters on both sides of the political aisle, but it will not alter the facts on the ground: Gay marriage is a current cultural reality, and its eventual legal recognition was nothing short of inevitable.

Why inevitable? It was legally inevitable because the U.S. Supreme Court recently ruled in Lawrence v. Texas that moral considerations alone could no longer provide a "rational basis" for upholding a law that prohibited or regulated private and intimate behavior.

Stripped of the moral justification for restricting marriage to the union of man and woman, states simply cannot make the case for restricting marriage to heterosexuals only.

Massachusetts attempted to justify its ban on same-sex marriage by arguing that traditional marriage provided a "favorable setting for procreation"; ensured the "optimal setting for child rearing," which the state defined as "a two-parent family with one parent of each sex'"; and preserved scarce state and private financial resources.

The Massachusetts court made short and brutal work of those justifications, noting that the law did not require that heterosexual married couples have children and that the state takes many steps to "affirmatively facilitate bringing children into a family regardless of whether the intended parent is married or unmarried."

The court also noted the indisputable reality that the law has long-recognized alternatives to the two-opposite-sex-parent family and that there was no evidence that the recognition of gay marriage would deter opposite-sex couples from marrying and raising children within the "optimal" arrangement.

When about half of all children are raised by families that are not traditional two-parent households, there was no legal justification for the notion that heterosexual marriage is somehow uniquely suited to child-rearing.

Putting aside the law, it is an indisputable cultural fact that gay marriage already exists. In the last decade, thousands of gay couples have been married in religious ceremonies at churches across the country. These gay couples are able to privately contract many of the inheritance rights, hospital visitation rights and other legal rights and obligations that flow from legal marriage, and these couples are able (in virtually every state) to adopt and raise children. Married gay couples live and raise children in this community.

The Massachusetts court merely extended formal legal recognition to family arrangements that have existed, in many instances, for decades.

Unfortunately, the conservative argument against gay marriage often reeks of hypocrisy. Our society stopped viewing marriage as a sacred (God-ordained) institution long ago. Since the invention of no-fault divorce laws, divorce rates have skyrocketed. Now, almost half of all marriages end in divorce.

Even in the conservative Christian community, divorce is rampant. As the only lawyer in my church (a very conservative Pentecostal congregation), I frequently receive telephone calls from fellow church members requesting assistance on child custody matters, property division and other divorce-related questions.

I have fielded so many questions about divorce that I am sometimes surprised when I encounter middle-aged congregants who have not been previously married. The gay community could not treat their marriage vows any worse than many Christians treat their own.

For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing. Churches can still speak out against sexual immorality and can still choose not to perform gay weddings. The gay couple down the street in no way makes our own straight marriage more difficult or challenging, nor can any decision of any court of law change the definition of marriage in the eyes of God.

In the days, weeks and months to come, we can expect to hear many conservative commentators decry the continuing decay of our culture. In the debate that follows -- and as accusations of intolerance and immorality fly between left and right -- remember that Christians and conservatives long ago met the real enemy of the sacred institution of marriage -- and we are that enemy.

David French is a religious-liberties attorney and author of A Season For Justice: Defending the Rights of the Christian Home, Church and School (Broadman & Holman 2002).


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