The American Spectator

One would expect that an article about homosexuality and discrimination would discuss discrimination against gay or lesbian people. This article is about discrimination in favor of gay and lesbian couples.

In the past few years, a few legislatures and courts have been persuaded to cull from the entire universe of human relationships one form of relationship, that of two gay men or two lesbian women, and grant the parties the right to marry (or enter into domestic partnerships or civil unions) and grant them the benefits of marriage. Furthermore, many private and public employers have been persuaded to extend employee benefits to domestic partners. These legislatures, courts and employers have been persuaded to discriminate in favor of gay and lesbian couples to the exclusion of all other possible parties who would benefit from marriage, civil unions, or domestic partnerships. There is, however, no principled basis for them to favor gay and lesbian couples to the exclusion of others.

Upon what basis do gay and lesbian couples seek to marry and to obtain the benefits of marriage? Their legal argument refers to “equal protection” and “due process.” At bottom, they claim they are like heterosexual married couples in all important respects except for the refusal of the private sector or the government to recognize their relationship as a marriage. How are they married except in name only? They respond: They love each other and are intimate with each other. They live together. They are committed to loving each other and living with each other forever. They share responsibilities and financial resources for caring for each other, for children, for parents. For example, New Jersey’s Civil Union Law refers to individuals who “live together in committed relationships,” California’s Family Code defines “domestic partners” as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring,” the Massachusetts court in Goodridge v. Dep’t of Public Health (2003) recited the life situations of seven plaintiff couples, and the September 18 Maryland decision, Conaway v. Deane, described “committed same-sex couples” who love each other.

Yet, the law of marriage does not require these attributes (Point 1). Furthermore, if the law of marriage did require these attributes, many people not eligible to marry under current law, not only gay and lesbian couples, could demonstrate them (Point 2). So, allowing gay and lesbian couples to marry (or become domestic partners) without allowing these others to marry (or become domestic partners) is discrimination.

Point 1: The Law of Marriage Does Not Require Love, Intimacy, Common Residence, Sharing of Resources, Having Children, or Commitment

The law governing who can enter marriage and the law governing married persons, does not require love, intimacy, common residence, sharing of resources, having children, or commitment. I speak of the law of marriage, not the customs of our ethnic and religious cultures associated with marriage. Thus:

p> Love br> The law of marriage does not require that the spouses love each other in order to marry or to remain married. For example, arranged marriages, so long as there is consent, are lawful. Marriages entered into by a woman (or a man) primarily to obtain protection or financial support are lawful. Couples who were once in love but “fall out of love” may remain married. The law simply does not inquire into the motives of the parties contracting marriage or their motives for remaining married. The one body of law that does inquire into the motives of the parties is immigration law to ensure that the marriage is not entered into to evade the otherwise applicable requirements of immigration. /p> p> Intimacy br> The law of marriage does not require that the spouses be intimate with each other. The requirement of consummation for the validity of a marriage no longer exists (with the exception that male impotence is a ground for annulment or divorce). Married men and women may abstain from sexual intercourse for any number of reasons, for any duration, and remain married. Not only are they not required to be intimate with each other, they may be intimate with third parties. The law of marriage does not require exclusivity of sexual relations. There may be laws prohibiting adultery still on the books, and adultery has long been grounds for divorce, but adultery does not dissolve a marriage. Married men and women are free, in this sense, to have sexual intercourse with others.