GAY MARRIAGE

"The official language of San Marcos will be Swedish. All citizens have to change their underwear every half hour, and they have to wear them on the outside so we can check."---Fielding Mellish (Woody Allen), revolutionary leader in "Bananas," in his first speech after taking over the government.

Aren't you a little surprised that the latest developments in the gay marriage fandango haven't sparked any violence? This past week, would you have been shocked if you had flipped on CNN and learned that some nut had climbed on top of a building with a rifle and picked off a couple of the people waiting in line outside the San Francisco City Hall? I don't think I would have been surprised at all. And, of course, the night is young.

I'll tell you in a little while why I'm in favor of allowing gay marriages, but the real purpose of this diatribe is to tell you why what's happening now, via the Supreme Judicial Court of Massachusetts and the Mayor of San Francisco, is wrong.

It takes guts to do what they did, I'll give them that. The word that comes to mind is chutzpah. I mean, the institution of marriage is one that pre-dates governments and will probably outlive them. It's a creature of culture and tradition. It has existed in one form or another on every continent, in every clan, tribe, nomadic band, chiefdom, nation and state so long that (to quote an old law book) "the memory of man runneth not to the contrary." For millennia, governments didn't even have any say in the process, and couldn't even perform marriages. All they could do was enforce secular laws (that came from the shamans, priests, and rabbis) about marriage-related topics like inheritance and property rights.

A lot of folks, faced with a history suggesting that marriage is a more important institution than any government that has ever existed, might pause before declaring unilaterally that marriage (as we know it) is wrong, unfair, discriminatory, and homophobic. But not the mayor of San Francisco. A lot of judges might wonder why, in the 224 years since the Massachusetts Constitution was adopted, nobody had noticed that a "fundamental right" was being denied to the state's citizens. But not the Supreme Judicial Court of Massachusetts.

Honestly now, by what possible authority (moral or secular), do these folks purport to decide for all of us what marriage should consist of? I mean, these people don't own the institution of marriage any more than I do, do they?

In law school, I had a professor named Yale Kamisar, and one of the few things I remember from his criminal law class was his view that that the large moral issues of society had no place in court. His examples were abortion and capital punishment, both of which have been addressed repeatedly by the Supreme Court, though neither of them are even hinted at in the U.S. Constitution. His point was that when a case involving these issues arrives at the Supreme Court, the justices have no law to apply. All they have is their own prejudices. Thus, when an opinion emerges from the court, even if it has a patina of legal reasoning to it, all you're getting is the biases of nine people who are no more qualified to decide the issue than any other nine people you could pull out of a bus station. It's tyranny. It's anti-democratic. It's what makes people pick up guns. Gay marriage was not an issue at the time, but if it had been, I'm sure it would have made his list of large moral issues that require the full, lengthy, messy and time-consuming process of democracy.

One of the great strengths, and profound frustrations, of a democracy is that large questions can sometimes take decades to resolve. Even stupid ideas can stick around for a hundred years, until all the diehards on one side are dead or have given up the fight. The "Free Coinage of Silver" campaign, for example, was a dopey notion even by the standards of economic science in the 1860's, but it stuck around for sixty years.

School vouchers is another example. It's been at least forty years since Milton Friedman came up with the idea, and it will be another twenty before it's finally decided. It's pretty clear which way the battle is going, but that doesn't mean it's even close to being over. There's money involved, and power, and political philosophies, and nobody is going gently into the night. But ultimately, it will be settled.

The beauty of this unwieldy process is that, so long as no one has the dictatorial power to say, "This is the LAW," nobody gets killed, and the government doesn't get overthrown. People bitch, of course, and they write letters to the editor and they call talk radio shows, and maybe, late at night in a taproom, somebody gets a bloody nose. But if you want to ignore the politics entirely, you can. Armed men don't come to the door to find out which side you're on. The mail still gets delivered. The Eagles still lose the NFC Championship game. And eventually, the issue gets settled one way or the other.

There are costs attached to the system, of course. It's not very efficient. The "Free Coinage of Silver" fight, for example, raged on for decades with millions spent on political campaigns, and resulted in exactly---nothing. People wasted their entire lives on it. William Jennings Bryan, a great man of his time, is now a sort of historical joke figure. The school choice controversy also carries a price, since at times it seems the very purpose of public schools, to educate children, has been forgotten. And doesn't it seem unlikely schools will get any better until the issue has been resolved?

In the fight over gay rights, one argument you hear is that allowing gay marriage would "undermine" traditional marriages. I'm not sure how that works exactly because I don't really see how it would affect me and my marriage, but maybe I'm missing something there. What I do know is that the current fight, like any long political battle in a democracy, has its costs, the primary one of which is that the fight itself undermines traditional marriage, in the following way.

There once was a time when society encouraged couples to get married, in various ways. There were tax advantages. It was easier to get a mortgage. Employers typically extended health insurance and other employee benefits to spouses. In these and many other ways, the government and the world at large nudged young couples toward the altar. And if you believe that marriage is a great civilizing influence, and the best way to raise children, this was a good thing.

Those days, to a large extent, are gone. Along the way, in the fight for gay rights, many major cities and many large employers (virtually every hi-tech and entertainment company, for example) started offering benefits to "significant others" or same-sex "partners." Once this process started, they couldn't very deny those same benefits to John and Mary, an unmarried couple who live together. "Why get hitched?" John wonders, and it's hard to give him much of an answer.

Well, I still want John and Mary to get married. Despite the leftist ideologues who wish it weren't so, all the evidence still tells us that kids are better off with both mommy and daddy, that married people commit fewer crimes and take fewer drugs, and are more productive members of society. Not that we really need any sociological studies to tell us of the civilizing influence of marriage, of course. The fact it has worked since we all lived in caves is good enough for me.

So bring on the gay marriages. It's OK with me. It's probably going to happen anyway in twenty years or so, so why fight it? Let them get married. But no more of this same-sex partner business, or "civil unions" or "significant others." No more “spousal benefits” for people who are just living together. None of that. It's marriage or nothing. You get the benefits, you get the joint credit card liabilities, you get the mother-in-law, you get everything. Let them all get married. And let's see how THEY like it.

Copyright Michael Kubacki 2004