The discussion of same sex marriage to date has focused on religious based preservation of the family, claims of gay bashing, threats to families, and accusations that a few judges and opportunistic mayors have decided they were above the law. The issue of same sex marriage is far more complex and before more polls are taken, votes cast in our legislatures or congressional action taken, we need to consider thoughtfully many more facets of the difficult problems facing families.
The American Bar Association adopted a resolution urging Congress to oppose a federal constitutional amendment. The ABA has not taken a position pro or con on whether gay marriage should be recognized, to my knowledge. The American Academy of Matrimonial Lawyers discussed the issue, and what position, if any should be taken, at its mid-year meeting in March, 2004 and decided that further research and debate was needed before adopting a position. Subsequently, it has taken the position that same sex marriage should be permitted. As a family lawyer who is a member of both organizations, I have been privileged to observe, participate in, and be enlightened by the critical analysis of the law and the principled positions articulated. When the hysteria is removed from the
debate, the issues are economic, constitutional, privacy, and religious. Rather than approach the discussion from a left wing, religious right, Democrat or Republican grandstanding position, I would like to see more scrutiny of the economic and constitutional issues, privacy concerns, and the role of religion in marriage.
Fear of change, or fear of recognition of the changes that have already occurred in society is understandable. However, the reasons used by opponents of same sex marriages are the same as were used to bar mixed racial marriages and to argue against equality for women in marriage. Traditions change. However, the Constitution is a resilient document, and its success is based upon granting rights and not in denying them to particular classes of people.
Any religion will always be free to sanction a marriage according to its beliefs, customs, and laws. The Lexington Herald-Leader published an article yesterday which summarizes the current religious divide by denomination. The secular law of marriage, however, is not a partnership. It includes the state as a third party, as both marriages and divorces are creatures of statute and are confined to the rights and responsibilities imposed by law.
Synagogues, mosques, and churches have every right to teach and mandate beliefs as to what is appropriate intimate behavior. However, under our system of government, it is impermissible for them to impose their belief standards on the rest of us. Neither should the government adopt a religious position and impose it on the citizenry.
Historically, the family has been dominated by religious principles, but over the last 100 years, the government has increased its involvement in the divorce arena, legislating child support, the division of property, child abuse and neglect, and spousal abuse. The government may not discriminate; religions can do whatever they choose.
No one’s marriage, or societal order, is threatened by the rights another couple has, gay or straight. We do not have to agree with other persons’ choices, but the government should not interfere except to protect us from harm or actual injury. Moral or religious opposition is not the government’s business.
It is incumbent upon us to offer a reasoned, calm analysis of the issues involved, pro and con. The law constantly adjusts the legal characteristics of marriage; there is little that is static about it. I wish Kentucky had taken a more calm, long-term and thoughtful analysis last year before adopting a state constitutional amendment our children will surely look back upon as short-sighted and harmful to many families. It is good news that congress does not seem poised this week to over-react as the issue is placed before it again.