A Few Thoughts About Gay Marriage
First, some shameless self promotion. In the comments to this post, Lee and I have, I think, a good discussion of some of the issues.
Basically, we are arguing over who the judicial activists are. I say, contrary to Lee, that judges who allow states to deny marital benefits to gay couples are the true activists. That is, they are making a decision and then thinking of reasons for it, rather than letting reason make the decision. You may agree, you may not. But it is good to consider the issue. At the least, there are strong constitutional arguments in support of extending marital benefits to gay couples.
Second, I think some of the animosity towards doing so, either as a matter of policy, or constitutional law, is due to a misunderstanding of the issues. I think the Governor of Washington is correct when she summarizes her thoughts (H/T Andrew Sullivan):
After years of declining to state her personal views on the matter — and without using the words “civil union,” — Gov. Chris Gregoire said at a press conference a few minutes ago that the state should provide gay and lesbian couples with the same rights and responsibilities as heterosexuals, but without actual marriage.
“As to my personal beliefs, Mike and I received the sacrament of marriage in the Catholic faith,” she said. “State government provided us with certain rights and responsibilities, but the state did not marry us.”
“I believe the state should provide these same rights and responsibilities to all citizens. I also believe the sacrament of marriage is between two people and their faith; it is not the business of the state.”
Grasping the difference between what happens in the church and the resulting benefits conferred by the state makes the issue much simpler. No one is saying the state or anyone else must declare gay marriages acceptable to God. Extending marital benefits to gay couples does not mean churches can’t call homosexuality a sin. It does not alter any individual’s belief that being gay is abnormal.
On the other hand, that the state does not provide secular benefits to gay couples does not mean those couples are not married. This is the big distinction between this situation and the old anti-miscegentation laws. If you were white and tried to marry a black person, you went to jail. Gay couples, in contrast, are perfectly free to declare their unending commitment to each other. That the state refuses to recognize their love does not make it any less true.
When you clear away the religious and emotional excesses, the issue is simply whether or not there is a legitimate reason for refusing to extend to gay couples the same secular benefits the state extends to heterosexual couples. In that regard, just ask yourself if the fact that a person is gay is a rational basis for denying that person a drivers license? The right to vote? A student loan? If your answer is no, then why is the fact that a couple is gay a rational basis for denying them all the similar secular benefits the state normally extends to non-gay married couples?
I do not think it is. I see no reason why the state should benefit couple A, but not couple B, just because couple B is gay.
Furthermore, withholding the benefits from couple B, though it does not mean they are not married, does make their marriage more difficult. And the difficulty imposed on them has no corresponding benefit for anyone. Extending the benefits to couple B has no impact whatsoever on couple A.
Hence, I think you can, and should, support extending marital benefits to gay couples even if you think being gay is morally wrong.