Same Sex Marriage and the use of force in debate

The Equality Forum is about to open in Philadelphia. For those who don’t know what this is all about, it used to be called “Pride Fest.” Essentially, this is another sexual minority festival… Think Key West, minus the warm weather, sea breezes, Island drinks, and sand.

This year we get to highlight the claim for Same Sex Marriage. (SSM) I think the argument in favor has bee explored in every imaginable forum. Given the media’s advocacy for SSM in recent years and the presentation of all opposition as Neanderthal, I thought I would try to carry the other side of the argument. I mean, what is this debate really about? What is it about for… you know… the “Majority?”

For most Americans, the institution of marriage is a framework around which we forge our legal and social architecture. As sexual minority activists have pointed out, the status carries with it meaningful benefits, particularly in the obtaining, possession, and transfer of property. (I refer to “property” in a broad sense to include entitlements and access to financial arrangements such as insurance.) The STATUS of “married” also carries with it social benefits. In essence, when the larger society acknowledges individuals to be married, we acknowledge a change in state and status within society. As activists have pointed out, this acknowledgement of the relationship as “valid” is affirming and supports durability of the relationship through a host of subtle cues.

The problem with SSM advocate arguments is that they mix and match inherent rights, legal rights, and social acceptance. It is my impression that activists want nothing less than all three in their full measure. On the other side, those who are unable to see the humanity in homosexuals and lesbians (lets just adopt the inaccurate title of “homophobe,” with all of the negative connotations that it carries with it), want to deny all three. Throw into the mix the more… um… “difficult” individual claims to bi-sexuality, cross-dressing, trans-gendered persons, and transsexuals (I’m sure that I’ve missed some) and the conflation of the issues makes the more reasonable… those trying to honor our Constitution, our faith, and individual freedom… on both sides, unable to enter into a dialog.

THESE ARE MY DEFINITIONS SO DON’T QUIBBLE WITH THEM. THEY ARE AS VALID AS ANYONE ELSE’S.

Inherent Rights- It strikes me as odd that the Supreme Court defined these rights under the rubric of “privacy” rather than the 1st amendment. Perhaps they were early sexual minority activists, figuring that changes to notions of “privacy” would lead to a wholesale change in society. I doubt it… I suspect that the successive Courts were trying to avoid the extension of 1st amendment rights to areas not previously covered.

Creating out of whole cloth a “privacy right” not contained in the Constitution was, in my opinion, a disastrous choice. It is a shame that the Court went this direction since the application of the 1st amendment to intimate behavior seems a natural fit. The decision to engage in intimate relations with an individual or group of individuals of one’s choosing strikes me as a protected liberty, well within the “free speech” intent of the Framers of the Constitution. As importantly, it has defined limits… there is a well-established framework for determining when and how the State can limit this liberty. In short… it doesn’t matter whether the majority approves of sodomy or not if there is an inherent right to the freedom of intimate expression. It is like “flag burning”- an individual may hate it, consider it a sin, believe that practicers are doomed… but the right is protected. In my opinion, MOST of the complaints of individuals against minority abuses are addressed by inherent 1st amendment rights, not the legal rights and social acceptance areas.

Legal Rights- By extension, there is an inherent right to equal protections under the law and due process. The claim by individuals, who choose relationships not sanctioned by society, to unjust treatment under the law seem to me to be valid.

To frame the argument in a way less charged… why should a confirmed bachelor and spinster (brother and sister), living in the same household, be denied the legal benefits accorded heterosexual couples? Plainly stated, there are a large number of benefits accorded married folks that increase our real property by saving us money on one end (taxes, insurance, property transfer, etc.) and satisfy the need for expression of solidarity that is at the heart of durable relationships (powers of attorney, visitation rights, child rearing rights, end of relationship distribution of property, etc.). These “Equal Protection” claims are not addressed by law and it seems right and proper for the State to accord some form of legal status to non-married relationships. (I acknowledge that there are some very real legal problems with defining and confining those benefits to the DURABLE non-marital relationships. This is particularly true in addressing concerns about fraud against the State and in normal economic intercourse.)

However, where legal claims require sanction of the State and, by extension, society, there is an underlying request for consent to the relationship from society as a whole. For the most part this view expresses itself in the assertion that either the term “marriage” should be scrubbed from the law or that any claim to “civil unions” is unacceptable because “marriage” must include every couple who claims a durable relationship. (It is this type of legal claim that drives even the most reasonable of the majority crazy.)

Which brings us to the issue of social acceptance… no right exists for one to force another to change their worldview. Calling everyone who believes sexual acts between other-than-married, adult men and women a “homophobe,” denies their humanity in the same way as narrowly defining persons who engage in homosexual and lesbian behavior a “homos.” Social acceptance is a cherished benefit accorded as a reward from the larger society. It is given to those who affirm the underlying values of the majority. It cannot be forced from them and there is no entitlement to it.

Simply stated, those who reject society’s rules and place themselves in opposition to the majority do so at their own peril. There are, of course, times to do so and it is sometimes necessary to fight for the respect that comes from a society that adopts the minority position. The Civil Rights movement of the 1960’s was one such struggle. The Suffragette’s faced a similar struggle. However, make no mistake that both would have failed if the majority had not slowly been turned towards their position. A “sea-change” occurs not because of a tidal wave but because of shifting currents.

Homosexuals and Lesbians have turned the majority’s opinion in their favor through a blending with the society that once rejected them and was, in turn, rejected by them. For the first time in Western culture, the majority is favorably disposed to granting the same rights to same-sex couples as heterosexual couples enjoy. The majority has closed its eyes to the specific behavior, that it continues to define as aberrant, in favor of the larger sense of humanity.

Extreme tactics do more harm to the larger “gay rights” movement than anything. Bringing ridicule and labeling the moderate opposition in a way that causes them direct harm suggests to “middle America” that we may be making a mistake. It tells us that this minority community does not seek “tolerance,” but demands our full consent. This we cannot give, and to demand it of the Majority is to violate the inherent rights of middle America to define ourselves as our conscience dictates.

Civil Unions is about as far as the Majority is willing to go because the legal issues end there. SSM is about social acceptance and the attempt to force that from us is unacceptable.