Family Net Daily

Same-Sex Marriage: A Brave New World?

The author is a retired California Superior Court Judge.

In November, California voters will be able to choose between at least two very different points of view. Not only will this apply to the Presidency and Congress of the United States, but also to what may be a major change in society itself.  It is not an exaggeration to suggest that the proposed amendment to the California Constitution defining marriage may be the most important issue presented in recent years.

Most of us want to make our community and nation better.  Some believe we are doing that by legally sanctioning same-sex marriage. Recently we have seen numerous accounts of longtime same-sex partners in California rejoicing over their newly acquired right to marry each other, thanks to a 4-3 California Supreme Court decision on May 15, 2008.  That decision invalidated Proposition 22 and held that equal respect and dignity of marriage is a basic civil right that cannot be withheld from same-sex couples.  Inasmuch as the decision is now final, it is pointless to discuss whether the four justices whose decision prevailed were mistaken, although the other three justices apparently believed so.

The proposed amendment, which offers the only remaining method of reinstating the effect of Proposition 22, says that only a marriage between one man and one woman will be recognized.  Although Proposition 22 was approved in 2000 by 61.4% of the voters, some suspect that many younger voters today, perhaps feeling more enlightened than their elders, might not support the amendment.  However sympathetic one may be toward same-sex marriage, prudence demands a consideration of a few of the many possible unplanned and deleterious consequences if the amendment barring it is defeated.

1.      While we have no crystal ball, it is quite probable that if a same-sex marriage is lawful, then the same must be said of a polygamous marriage.  In effectively changing the traditional definition of marriage, the State Supreme Court said that an individual must be allowed to establish a marriage with the person with whom the individual has chosen to share his or her life.  If the person chosen is already married to another and all parties agree to the arrangement, in the light of the court's language, how can the state refuse to recognize the three-party marriage, or indeed place any limit on the number of marriage partners?  We have recently seen in Texas and elsewhere that there are many people who would probably seek such a marriage, and it appears that choice now trumps tradition.  Voters should ask themselves whether they really wish to create such a society.

2.      Many personal freedoms, including the free exercise of religion, may well be diminished or lost if the amendment is not adopted.  Although such free exercise is provided in both the U.S. and California Constitutions, because same-sex marriage has now been found to be a constitutional right, it is reasonable to assume that there are some judges who will decide that the marriage right must prevail over the religious one.

• In Boston, the Catholic Charities recently closed down its adoption program because the state of Massachusettsinsisted that every adoption agency must allow same-sex couples to adopt.  Thereafter, an affiliated agency in San Francisco did the same. 
• A Methodist group in New Jersey lost part of its tax-exempt status because it refused to allow two lesbian couples to use its facility for a civil union ceremony. 
• In Albuquerque, a wedding photographer was ordered by the state's Human Rights Commission to pay $6,637 to the attorney for a gay couple because she declined to photograph the couple's commitment ceremony.  She had explained to them that because of her religious beliefs she photographed only traditional marriages.

3.      What of the effect on children in schools?  The state's position that same-sex couples are equivalent to opposite-sex couples will in all likelihood require changes in instruction to insure that a homosexual relationship is not treated differently than a heterosexual one.  We can anticipate that the princess in a children's story will be as likely to marry another princess as a prince.  Differences between sexes will probably be downplayed or ignored altogether.  Who can estimate the confusion that will create in the minds of young boys and girls? In Quebec, a Mennonite school was informed by the Ministry of Education that it must conform to the official provincial curriculum, including teaching that homosexuality is an acceptable alternative lifestyle, or be shut down.  The Mennonites say they will leave the province.  A similar government position can be anticipated here.

Proponents of same-sex marriage will argue that these concerns are unrealistic, and that to show our good will we should abandon the wisdom of centuries by rejecting the constitutional amendment.  While it is true that just because a practice is old does not make it right, we have already seen the realization of some of the fears of the amendment supporters.  But recent history suggests that more sweeping ones are likely to come if the amendment is defeated.

In the minds of members of the public, will the right to same-sex marriage outweigh its attendant risks?  Wherever our sympathies lie, it would be tragic to permit them to cloud our judgment.  The voters will soon have an opportunity to change our society, for better or for worse.