OPINION/EDITORIAL: FOR SAME-SEX MARRIAGE
BY EVEN GERSTMANN, J.D, Ph.D

FEBRUARY 4, 2004 --This week, the Supreme Court of Massachusetts held that Civil Unions are not enough and that same-sex couples must have access to the institution of marriage itself. This is a decision that many Americans have trouble understanding and has led to calls to amend the Constitution. This would be a mistake because it would deprive millions of Americans of access to one of the most fundamental of human rights -- the right to marry the person they love.

Despite the anger expressed over the Court's ruling, the arguments made against same-sex marriage are deeply flawed. The fact that same-sex couples cannot have children certainly isn't a reason to deny them the right to marry. Nobody would dream of telling two 80-year olds that they cannot get married because they cannot produce children. It is true that many people morally disapprove of homosexuality, but many people also disapprove of inter-racial marriage and of marrying outside of one's own religion. One person's moral disapproval has never been thought a good reason for telling two other people that they cannot get married.

Same-sex marriage has been analogized to all sorts of impermissible unions. The most common analogy has been to polygamy, but it's a poor comparison. If a person is gay and there is no same-sex marriage, then that person is effectively barred from marriage, assuming that they want to marry the person they love. There is no way this can be said about a would-be polygamist. Polygamists are seeking a right that no one else has -- the right to take on as many spouses as they like without fully committing to any one person. Gays and lesbians are seeking only the same right that most of us take for granted, which is the right to marry the person they love.

Over-heated rhetoric should not obscure the fact that there is much common ground between those who oppose and those who support same-sex marriage. All of us agree that marriage is a vitally important institution worth fighting for. It is fundamental to human happiness. Ninety-three percent of Americans rate "having a happy marriage" either one of their two most important goals or as a very important goal-far above the percentage of people who similarly rated "being in good health." In fact, the right to marry is intimately tied to a person's health and longevity. Mortality rates are fifty percent higher for unmarried women than for married women. For unmarried men, the mortality rates are an astounding two hundred and fifty percent higher than for married men. Being unmarried cuts about ten years off a man's life. We should not deprive two people who love each other the right to marry without very good reason.

Most would agree that the institution of marriage is troubled in America. There are high divorce rates, even when children are involved, and the media trivializes marriage with shows such as "Who Wants to Marry a Multi-Millionaire."

These facts are actually points in favor of same-sex marriage. This debate is about gay men and lesbians who want to make lifetime commitments to one another, to care for one another in sickness and in health, to take financial responsibility for their life partners and for their children. These are the very values that most of those who are against same-sex marriage stand for.

The only way that same-sex marriage could threaten the institution of marriage is if large numbers of heterosexuals so despise gay men and lesbians that they decide not to take part in the institution of marriage at all if gay men and lesbians are allowed to marry. How likely is that in reality? In truth, same-sex marriage would merely open the door to a group of previously excluded people who love one another and want to solemnize their commitment.

What is more threatening to marriage is the rise of a laundry list of marriage alternatives such as civil unions and domestic partnerships. These legal devices are being offered to same-sex couples so that the word marriage won't be used. But inevitably, these halfway legal relationships will become available to heterosexual couples as well. At a time when so many people are reluctant to take on the serious commitments of marriage, do we really want to create a menu of alternatives to marriage? Isn't it better to let same-sex couples that love each other get married?

As well, the rhetoric of constitutional amendment threatens other core American values such as the central role of the courts in protecting the rights of minorities and everybody's right to autonomy in making fundamentally personal life choices. Many have disagreed with judicial rulings on abortion, prayer in schools, and other controversial areas, but we have wisely stayed away from turning the constitution itself into a battleground on these issues. Amending the constitution now would inevitably lead to more and more amendments regarding all sorts of hot button social issues, robbing us of one of our greatest sources of political and legal stability.

Many people of good will are morally uneasy about homosexuality and therefore uneasy about same-sex marriage. But we should all remember that the only thing that has happened in Massachusetts is that a small minority who want to commit to the person they love by entering into marriage will now be able to do so. No church will have to marry any couple that it doesn't want to and nobody will have to marry anybody that they don't choose to. This decision is important, but it does not impose anything on anybody and does not threaten anybody's marriage. The best possible reaction to it would be a national dialogue on how to strengthen the institution of marriage for all Americans, not how to take it away from a small minority who seek the happiness and protection that this vital institution promises.

* * *
Evan Gerstmann, J.D, Ph.D, is an associate professor of Political Science at Loyola Marymount University in Los Angeles. Gerstmann is the author of Same Sex Marriage and The Constitution (Cambridge University Press, 2003) and The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection (University of Chicago Press, 1999) and has written on numerous other issues involving the law, courts and judicial politics. Gerstmann can be emailed at egerstma@lmu.edu.

###

*Not for publication: Evan Gerstmann can be reached directly at 310.338.3004, or via email at egerstma@lmu.edu.