If you know me, you know I’ve thought very much about this over the years. It’s always been a discovery for me because speaking about this honestly is constantly opening up new doors and windows to real people, to whom marriage and the right to marry, really matters. I hope that I’ve taken My Prayer (in previous post, just scroll down) to heart more and more as I’ve pondered marriage in general, and, specifically, same-sex marriage.
I’ve never been able to agree that Equal Treatment compels the legalisation of same-sex marriage. I do believe that the courts and judges who’ve done so are mistaken. I tend to trust that those nations’ courts who’ve decided against ordering its legalisation were rational and without prejudice. Many of them went on to adopt ssm by legislature, though, so we can reasonably say that the judicial decision was not a matter of the culture being unable to accept same-sex couples. Only one nation, Brazil, has compelled the legalisation of same-sex marriage through the courts.
However, I do think that there should be protections for gay couples. Yet even with same-sex marriage, we will eventually encounter the basic differences which demonstrate that Equal Treatment cannot apply universally. I’ve written a fictional dialogue between a lawyer and a judge to illustrate. It’s not in legal language, but I believe it does capture the spirit and merit of my argument. Here goes:
Judge: Can you give me any rational basis to not legalize same-sex marriage?
Lawyer: Yes, Your Honor.
Judge: Please, do tell, and let the record show that we’ve already shown that fertility has not been a legal requirement for marriage.
Lawyer: Duly noted, Your Honor. Fertility has indeed never been a requirement for couples to marry in the states. The requirements, however, come on the other end. For example: a man and woman marry, the wife bears a child, one abandons the relationship. Who is legally responsible for the welfare of their child? They both are.
Let’s review this scenario. Did they have a fertility test when they married? No. Let’s suppose that the woman had never previously been able to have children and believes she was infertile. Let’s say the man even had a vasectomy.
Nothing in the story changes. They marry, the wife bears a child. One of them abandons their family. Who is responsible for their child? They both are. This responsibility is implicit at the moment of marriage. The husband is always presumed to be the father.
Judge: You have not shown how same-sex marriage changes this, counselor.
Lawyer: Indeed. Here’s the new story: a woman marries a woman. One wife bears a child, one wife abandons the relationship. Are they both responsible for this child? We can assume that at least, the woman who bears the child is responsible. How, then, is her wife responsible? How can the wife be responsible for a child that she has not rational basis of anticipating at marriage as a result of their union? The only way the spouse carries responsibility of parenthood through marriage is if we apply the natural basis of heterosexual partners to the homosexual couple.
Judge: And? Equal Treatment requires us to do so.
Lawyer: Equal Treatment requires us to apply the law when no injury can be shown by doing so. Yet, in this case, we are compelling a person to be responsible without a rational basis for that responsibility.
Judge: Yet there are same-sex couples who want to assume this responsibility.
Lawyer: Yes, Your Honor, and there are those who do not.
Judge: As with heterosexual couples, counsellor. How are the two different?
Lawyer: The heterosexual couple has assumed the responsibility at marriage because them procreating together is a rational expectation of their union. They must assume this, they cannot choose. If a child results from their union, they are responsible, whether they want the child or not. This is the nature of heterosexual unions that any civil society recognizes.
Judge: And the same-sex couple?
Lawyer: The same-sex couple, to have a child together, must choose at the time of adoption. They cannot assume such responsibility at marriage, for there is no rational basis for expecting a child to result from their union. They may choose or not choose to seek to adopt a child, while a heterosexual couple cannot choose whether to be parents of their child.
Judge: So if we apply presumed paternity equally to heterosexual and same-sex couples, we are assigning responsibility to those who must not have it. If we remove presumed paternity from marriage altogether, we are removing responsibility from those who must assume it.
Lawyer: Exactly, your Honor.
I live in France and it happens to be one of the countries who heard the arguments for gay marriage, but upheld the ban. Francois Hollande ran his presidential campaign on many promises, including gay marriage, and it was passed not long after his election. So I think it can be said that there are many rational, compassionate people who desire the ability for same-sex couples to legally unite, even marry, but who also recognize the significantly different nature of heterosexual unions. It’s just part of being human.
Today the Supreme Court of the United States hears oral arguments regarding same-sex marriage. I hope that the representatives will be sharp and smart, that the decisions will be compassionate, and made in wisdom and foresight. Most importantly, I hope and pray that people will continue to treat each other better and always try to be excellent to each other.