May 19, 2008
Some Logical Corollaries of California's Gay Marriage Decision
As Lady Macbeth said, "what's done cannot be undone" -- except by constitutional amendment. In order to appease an intransigent minority group, the California Supreme Court has, in the manner of Roe v. Wade, resorted to inventing a new legal principle to justify their predetermined goal.
But one does wish that they had thought the matter out a little more carefully. In creating a mechanism for justifying gay marriage, the justices have set in motion an infernal machine with consequences far beyond their limited imaginations. Cliff Thier has already pointed out that these unintended consequences may include the invalidation of no-fault divorce and the legitimization of polygamy. Let us extend his line of argument further and assess the range of logical consequences of this decision.
Using their "strict Scrutiny standard" -- which the court obviously invented ad hoc to justify gay marriage -- the justices deem that constitutionality requires that any differential treatment be not only in a constitutionally legitimate interest but that it also be a compelling state interest for which differential treatment is absolutely necessary [italics theirs]. You have to think this idea over for a while to fully appreciate its asininity and the vast number of California laws that could be declared unconstitutional if it were applied uniformly. But let us for the moment content ourselves with considering the full extent of its application to the institution of marriage.
The court goes on, with a great deal of verbal sleight-of-hand and gobbledygook, to justify gay marriage, i.e. the elevation of the union of two males or two females, who engage in mutual sexual activity, to the full status of marriage. The first thing we notice about this argument is the superfluity of the word "two". True, the words "two adults" and "couple" do appear in the decision, but only by way of example and not of restriction. No argument is given for the magical uniqueness of "two" and no argument presented thereafter is not equally applicable to three or four or more gay men or lesbian women. It is my fond hope that, even as we speak, some gay trio or quartet in San Francisco is planning to apply for a marriage license. And I would defy the California Supreme Court, with the present decision in place, to devise a way to stop them within the boundaries of its own principles.
Having been forced to accept the right of gay polygamous marriage, we are compelled to concede a similar right to heterosexual polygamy. As Their has already noted, the insertion of the word "polygamous" into appropriate places in the CSC decision yields a coherent and logical case for the rights of polygamous families to full marital status. So those gay couples (and trios and quartets, etc.) waiting in line for marriage licenses will find their ranks augmented by eager Muslim and Mormon dissident sect applicants.
But the fun doesn't stop there. Even the ingenious wordsmiths of CSC would be hard pressed to justify specific sexual acts as requirements for full marital status. Accepting the arguments used for granting marital status to gay couples and trios, we must admit that there would be no honest reason for denying the same status to other cohabiting couples such as brothers and/or sisters, cousins, or just friends.
Consider, for example, two old friends of mine, Felix and Oscar, who have shared an apartment for decades. Their friendship has no homoerotic overtones; they are in fact persistently if unsuccessfully heterosexual. The legalization of gay marriages wouldn't help them a bit. But if they were to claim to be gay partners, they would, under the present CSC decision, be eligible for all the advantages of a gay marriage. If that isn't "discrimination on the basis of sexual orientation", please tell me what is. Therefore, in all fairness, the CSC must extend its permission to them and their ilk
Having got rid of the old Judeo-Christian taboos, and considering the logical ramifications of the recent CSC decision, we are forced to conclude that "marriage" in California is now or about to be accessible to any cohabiting group of any number of people of the same or both sexes, regardless of sexual orientation or activity.
However, the transition into such an innovation should be undertaken very slowly and cautiously because of the legal ramifications, such as tax status, inheritance, liability, and dissolution of union, that will engender a labyrinth of complications. Any hasty and poorly thought out legislation would result in decades of litigation and statute revision. In many cases, laws concerning married couples will not serve as a valid model because of their emphasis on provision for children. Moreover, if domestic partnership status confers any substantial legal or economic advantages, then it can confidently be predicted that, within a few decades, virtually everyone will be a member of such a union. This could result in devastating changes in, for example, our tax structure.
But let us look on the bright side. The CSC decision could lead to the restoration of clans or tribes -- a concept that has often had a strong stabilizing effect on society. Eventually, whole communities or cities might be joined in matrimony. Ultimately the whole population of California might become one big happy family, filing a single enormous tax return and referring to the governor (by then hereditary) as "big daddy" or big mama". And in such an intimate family-state, there would be no need for a supreme court.