Opinion - Gay marriage
By the Maryland Daily Record Editorial Advisory Board
The debate over whether to allow gay marriage is suddenly hot. With the
intensity of the convictions on all sides, it is the function of editorialists
to stand up and be counted, and so we shall do so, briefly.
Our view is this: We fail to see any reasonable impediment to allowing persons
of the same sex to marry. We do not find that the prospect of gay marriage is
either disgusting, or immoral, or offensive, or bad policy. To the contrary, it
would mark a most regrettable turn in our nation's constitutional development if
gay marriage were banned via a constitutional amendment. And on top of that,
there is much to recommend it. Instead, gay marriage should be legalized.
A significant portion of the objections to gay marriage seem to reflect a strict
theological point of view or certain social attitudes which this Board does not
share. That is, those who find homosexual acts disgusting or immoral wish to
prevent those who do not from obtaining sanction for unions partly built around
such acts. But we should not be frustrating the deepest yearnings of such a
large number of our fellow citizens merely because others disapprove. No one is
forcing anyone else to engage in gay sex or gay marriage. And as for those who
are opposed on religious grounds, the deepest and most important traditions in
our political culture say that while we honor religion, we cannot be guided by
any particular faith's tenets. That is the true meaning of the separation of
church and state.
On policy grounds, we find the main argument in favor convincing. That is,
marriage is a fundamental and mostly beneficial social institution. If more
people engage in it, that is to the good. And we find the main argument against
gay marriage, that recognition would encourage the "choice" of a homosexual
"lifestyle" utterly unconvincing. This statement extends to the children raised
by such unions. We know of no empirical data that supports the notion that gay
and lesbian parents in committed relationships raise gay and lesbian children in
different proportions than anyone else. There is no evidence we find credible
that sexual orientation is chosen at all. Showing respect for gays and lesbians
will not predictably create either more or fewer gays and lesbians. It may well
allow more to come out of the closet. But the closeted state is an incredibly
destructive thing, both for those who lie and for those who are lied to.
There is another policy argument sometimes made against gay marriage, namely,
that allowing men to marry men and women to marry women will open the floodgates
to polygamy, incestuous unions, bestial unions, etc. We do not see this as a
realistic prospect. For instance, it is highly doubtful that solemnizing the
union of consenting adults, equal in power in their relationship, would lead to
acceptance of polygamous unions which have, throughout most of history in those
societies that have accepted them, depended upon and perpetuated powerlessness
in some of the parties, mostly the female ones. The fact that standards of a
civilized society evolve does not mean that there are no standards.
Another policy argument frequently made is that same-sex marriages would somehow
weaken or devalue opposite sex marriages. Exactly how this would operate is hard
to fathom. Why should a heterosexual's commitment to his or her spouse be
weakened by some homosexual's commitment to his or her spouse? Why should a
straight marriage become less sacred in the eyes of the couple involved merely
because a gay or lesbian couple proclaim belief in the sacredness of their
union, and society pays some acknowledgment to that belief?
The distress felt by those who make this argument seems genuine enough. But the
disconnect between the stated cause and the distress suggests that, at bottom,
this is simply distaste or religious conviction at work. And under the
Constitution, we cannot and should not restrict the exercise of fundamental
rights merely to accommodate the distaste or the religious convictions of
others, no matter how distressing the other may find it.
And we are talking about fundamental rights. From a constitutional standpoint,
once we accept, as the Supreme Court did last year in the case of Lawrence v.
Texas, that there is nothing distinct about gay sex that allows it to be
criminalized or stigmatized, the right of gays to marry does seem like a logical
next step. And we would be appalled if the nation were to adopt a constitutional
amendment to frustrate that logic and marginalize one group, and only one group,
of our citizens.
We recognize also the potential implications for federalism if gay marriage is
adopted by some states but not others; this legal concern will be the subject of
a future editorial. Legislators should think these issues through as they do the
right thing and enable gay marriage.
But that is the main point. It is the right thing. Most of us know committed gay
and lesbian couples, married in all but name. In their devotion to each other,
in their collaboration in the difficult task of child rearing, in their mutual
support, they do exactly what heterosexual couples do. They therefore deserve
the same recognition and privileges.
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Editorial Advisory Board members Alison Asti, José F. Anderson, Guy Flynn,
Alexander Wright Jr. and Robert Zarnoch did not participate in the adoption of
this editorial.
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BOARD MEMBERS
Alison L. Asti, Chair
Robert D. Kalinoski
Jose Anderson
Andrew D. Levy
Dawna Cobb
Audrey McFarlane
Harriet E. Cooperman
Michael D. Oliver
C. Carey Deeley, Jr.
Karen Rothenberg
Guy Flynn
David Walsh-Little
Jack L.B. Gohn
Rachel Wohl
Robert Gonzales
Alexander Wright
Allan P. Hillman
Robert A. Zarnoch
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The Daily Record Editorial Advisory Board is composed of members of the legal
profession who serve voluntarily and are independent of The Daily Record.
Through their ongoing exchange of views, members of the Board attempt to develop
consensus on issues of importance to the Bench, Bar and public. When their minds
meet, unsigned opinions will result. When they differ, majority views and signed
rebuttals will appear. Members of the community are invited to contribute
letters to the editor and/or columns about opinions expressed by the Editorial
Advisory Board.