Last night's episode of Law & Order was, to some degree, about gay marriage. You see, the Governor of Connecticut was a homosexual having an extra-marital affair with one of his subordinates. The subordinate, in turn, was in a relationship with a Mr. Kaplan, who received lots of cherry construction contracts from the state. Somehow, the governor's wife found out about the affair, and Kaplan worried that she would go public with it, which would force the Governor to resign, which would mean a loss of those cherry construction deals for him. So Kaplan killed the Governor's wife to keep her quiet. The subordinate confessed to the police that it was his partner, Kaplan, who killed the Governor's wife.
Open and shut, right? Not when the defense tries to pull the old "spousal privilege" trick. How can they do this? Kaplan and the subordinate claim that they had been married! Assistant DA Jack McCoy (Sam Waterston) was faced with a tough decision: get their marriage annulled somehow so as to make the confession admissible, or try to preserve the marriage that had already been sanctioned by the state. Of course he chose the former -- not because he doesn't like gays, but because he's trying to convict a murderer.
In the end, the New York State Supreme Court annulled the marriage, thus allowing the confession. The subordinate, though, refused to cooperate, insisting that McCoy had destroyed his life and the lives of other homosexual couples by annulling the marriage.
Is there a legal response to gay marriage beyond the Antonin Scalia "tradition" point of view? Just to get a taste of what this strict constructionist thinks about gay marriage, here's a snippet of Scalia's dissent from Lawrence v. Texas (with citations removed to protect the innocent, or even the people that don't want to read the citations, because they're really distracting):
Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality." State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.
Sure, that's great. But the law is very clear about where it come from. It comes from the legislature, which in turn comes from us. By proxy, We the People are in charge of making the law. All of us, living in the United States, having voted for representatives, can agree that the power to create a law that is used to govern all people in this country comes from those same people. With morals, not so much. While there are morals that many -- if not all -- people have in common, this does not mean that morals are universal (I cite as an example the "right turn on red" rule; all states have this rule, but it is not a federal law, it is a bunch of state laws, and every state has the ability to repeal it). Most morals are personal; that is, what is virtuous for me may not be virtuous for you, or vice versa. "Morals" misused have been used to justify many terrible things throughout human history.
Last year, Michelle and my friend Mike had a little tiff on this blog over the relationship between Brown v. Board of Education and the current gay marriage debate. Mike claimed that giving homosexuals the right to marry was the creation of a new law, since it was commonly understood that marriage was between a man and a woman; no one could have fathomed that marriage would ever be between two men or two women, so why the need to be so explicit? It would be like saying that the act of using a telephone required a telephone. Implicit in the word "marriage" was the qualification that it was between a man and a woman. To a resident of Virginia prior to the 1960s, the idea of "marriage" was not only rooted in heterosexuality, but also race. Virginia used to have a statute prohibiting interracial marriage, and for a good, moral reason: the maintenance of the purity of the white race!
Michelle was correct in saying that southerners of the 1950s cried "judicial activism!" when the Brown decision came down. They thought then -- as much as many conservatives do today regarding homosexual marriage -- that it was wrong and unnatural for the two races to intermix. The fact was that there was nothing "natural" about it: human beings had created the distinction between the races, and now human beings were ending it.
What about the "sanctity" of marriage? Some conservatives claim that this 5,000-year-old institution is the foundation of our society. I suppose that all depends on what kind of marriage we're talking about. If we're Ancient Greeks, then we can only marry citizens, who are defined as people that were born within the city-state of Athens. At the same time, though, we can carry on love affairs with boys between the ages of 10 and 13 (many Athenians suggested that, when a boy began to grow facial hair, he was too old for such an affair). If we're Muslim, then we are technically allowed up to three wives; if we're Mormon, we can have as many as we want. What about concubines? If we're the Sultan of Brunei that changes things, doesn't it?
My point is this: marriage as a spiritual or religious institution is a far newer advance than marriage as a political or legal institution. This so-called 5,000-year history of marriage is true, but marriage hasn't been sacred for that long. Even love is a relatively recent invention, coming out of the 16th and 17th centuries, when a middle class was forming that could afford to marry for love and not for economic benefit. How long has marriage been a sacrament in the Catholic Church? Probably not as long as you think: marriage became a sacrament in only the tenth century! Noted heretic Martin Luther wrote of marriage:
Not only is the sacramental character of matrimony without foundation in Scripture; but the very traditions, which claim such sacredness for it, are a mere jest. [...] Marriage may therefore be a figure of Christ and the Church; it is, however, no Divinely instituted sacrament, but the invention of men in the Church, arising from ignorance of the subject.
The argument about marriage being a long-standing historical and moral institution should be tempered with history. History is always more cynical than people make it out to be.
Okay, then, should gay marriage be legal? Yes. Who should make it legal? The answer, unfortunately, is "not the courts." As my friend Mike noted, statutes written regarding marriage were written with a particular definition of marriage in mind. To suddenly change that meaning is what the Supreme Court would call "arbitrary and capricious," for legal definitions of seemingly common-sense words are very important. If a body can change the definition of a word on a whim, then that body can change the law completely. What I'm talking about here is larger than the issue of gay marriage: it's the issue of the integrity of the law. As a society founded on rule of law, a law made yesterday must hold the same meaning as a law made today, or else the law cannot stand the test of time. As beings who live in time, this is important for us. A law whose meaning changes daily is like the rampant inflation in Hungary prior to World War II, where prices actually increased by the hour. There's no security in that.
Like the judges on Law & Order, I call upon the legislature to definitively say what marriage is, and I would prefer that they say that marriage is the union of any two people, regardless of color or sexual orientation. I disagree with the amendments passed by eleven states prohibiting gay marriage, but it seems that the country is not yet ready for homosexual marriage. This does not mean we should not stop lobbying to have these constitutions re-amended to remove those amendments, or attempting to change the law to include homosexuals, but these activities must be done by the legislature to ensure the integrity of the law and to ensure the legitimacy of the laws made, since the legislature ultimately derives its power from the people.
It's November 5, and that can only mean one thing (aside from Beth Ruschau's birthday): Guy Fawkes' Day! A uniquely British holiday, Guy Fawkes Day celebrates the day the infamous