C U Again

Douglas W. Kmiec, a professor of constitutional law at Pepperdine University, promotes the False Compromise (see a much-discussed previous entry here) in a commentary run by the Los Angeles Times, calling for abolishing state marriage licensing and replacing it with "civil unions". I maintain that this is removing one thing (marriage) entirely and attempting to expand something else (civil unions) to accommodate the displaced couples.

It is not often in life, or law practice for that matter, that you can say to two opposing parties: You both win.

The False Compromise is only a win for those who have wanted to abolish state marriage licensing and further weaken marriage all along. It isn't a win for marriage defenders. It isn't a win for any homosexuals who truly seek to apply the term "marriage" to their own brideless or groomless union because they think it will make them happy and force others to affirm their behavior. "Moderates" think it is a win because they think it will solve all of the disputes and stop the whining and lawsuits. But it won't.

[The rest is below the fold; make the jump if you want to read it.]

The gay couples could well win this legal battle because the U.S. Constitution, as construed in Romer vs. Evans and Lawrence vs. Texas, denies the validity of laws that have no purpose other than allowing a majority to express animus for homosexuals.

And what if some homosexuals wanted to abolish traffic laws on the interstate highways? Would we all have to allow that just because it was homosexual people asking for it? It is absurd to maintain that marriage licensing law is nothing more than animus for homosexual people, although that is what is often claimed. Marriage law is about perpetuating society in an orderly and beneficial way. When I got married, it wasn't so that I could wave around the paper and taunt my gay friends, and when I voted for the California Marriage Amendment, it wasn't to spite anyone.

But does holding that gay and traditional couples must be treated the same by the state -- even as gays can be denied the nomenclature of marriage -- make any sense?

Perhaps not. But a personal union of a man+woman is different than two men or two women, and thus can Constitutionally be treated differently. Business partnerships are treated differently than marriage - even though they both involve two people.

The attorney general, in defending the state's interest, could ask for a court order enjoining the state from using the terminology of marriage altogether.

Kmiec apparently thinks it is a good idea for a court to start telling us what words we can and can't use. Sorry, Kmiec, "marriage" is not a registered trademark of the California Supreme Court. If we, the people, want to use the word in our law, we will.

Why can't we have a word for it - the same word that has been used throughout history? What is wrong with the state recognizing, licensing, and even encouraging the only kind of union that unites both basic elements of society – males and females – and the only kind of union that can naturally create new citizens as a result of interaction that is normal in the course of such a union, providing those children with both a mother and a father? There is nothing wrong with it, except that some highly organized political activists don't want to participate, but want to be treated, legally and socially, as though they are participating.

Everyone is welcome to play the game. Yes, some people don't care to play. They don't have to. But here they are, demanding that the rest of us either change the name of the game so it appears to be no different from whatever activity they do enjoy, or stop playing entirely. They are trying to "take the ball and go home", but the ball belongs to all of us and there are more of us who want to keep playing.

Marriage neutering advocates and false compromise endorsers don't want anything that implies a difference. Well there is a difference. As much as they hate to hear it, it is still true: same-sex sodomy has not contributed anything positive to society that the participants couldn't have otherwise contributed, while coitus is how all of us got here. Same-sex couplings do not unite both basic kinds of citizens into a unit. They simply aren't the same, morality and religion aside. Calling them equal won't actually make it true. When people do different things, "equality" doesn't apply. Civil unions and domestic patnerships are the compromise. Many of us would rather not encourage, though law, actions we believe to be harmful or destructive, but enough of us put that aside in an attempt to address some issues that same-sex couples face.

Finally, if state licensed marriage is a fundamental right, then the state should not cease to issue such licenses. You can't have it both ways – jokes about bisexuality aside.