Further Discussion of Gay Marriage

Here Ryan Puzycki and I continue our previous discussion regarding gay marriage and Colorado’s Amendment 43, which defines “marriage” as between a man and woman. To review briefly, we both agree that gay couples should have the ability to contract as heterosexual couples do in romantic unions. However, while Puzycki believes that Amendment 43 should be overturned by the courts, I’m not so sure.

Following is Puzycki’s reply of February 19:

Thanks for your response post.

In asserting that Amendment 43 should be overturned “[b]ased on the religious motivations,” I was reiterating my own interpretation of the Amendment. As I understand it, it does not seem to have any secular foundation and seems to rise only from religious beliefs, but the language of the Amendment itself is not religious in nature. So, I agree that this would be difficult to overturn on the establishment clause. But, if the Amendment is interpreted to allow only for “marriages” with no provision for “domestic partnerships,” then a very strong argument would still have to be invented to defend a possible secular foundation for why homosexual couples should not be afforded any partnership rights.

However, even if we consider the possible allowance for domestic partnerships, then we would have to explain the need to create “domestic partnerships” apart from “marriage.” You have suggested as a “plausible argument” the potentiality of heterosexual marriages to result in children. Notwithstanding the facts you mentioned that homosexual couples can adopt and use artificial insemination, Diana Hsieh already made the valid point that procreation is not an acceptable basis for marriage. As for the historical nominalist argument, that is easily dismissed, as well. I have still heard no secular arguments that stand on their feet.

So, what justification does the government have for establishing a “marriage” for heterosexual couples and a “domestic partnership” for homosexual couples? Even if marriages and domestic partnerships afforded the same rights to couples of either sexual orientation, one must ask why it is necessary for the government to make a legal distinction between straights and gays. As I wrote in my earlier email, “separate” implies inequality–or why else make the distinction? The establishment of “domestic partnerships” would denigrate gays to a second-class status before the law, at least as far as marriage contracts are concerned. The concept of blind justice is meant to suggest that laws should be objective, but if the law instead sees a distinction between heterosexuals and homosexuals, it is not.

Before the law, all individuals must be afforded equal protection of their rights as stipulated in the 14th Amendment. It would therefore be unconstitutional to make any law that establishes separate legal status to individuals based on their sexual orientation. Before the law, sexual orientation is irrelevant. A murderer’s sexual orientation is no more relevant to the crime committed than is a homebuyer’s sexual orientation to a loan. The only questions the law can legitimately ask in regard to marriage are: are these two individuals of age and did they both consent?

While it seems obvious that Amendment 43 was motivated by religion, the Amendment itself makes no mention of God, so demonstrating the Amendment’s intent would be better left to a sophisticated lawyer who could make a clear case based on the establishment clause. However, the Amendment is, clearly, a violation of the equal protection clause because it does not explicitly protect the rights of gays to contract in any form of “marriage” and, secondly, because the potential allowance it implies is inherently unequal and legally baseless.

On that basis, then, Colorado’s courts should overturn the Amendment.

Our disagreement is not about Amendment 43 — we both disapprove of it — but whether it should be overturned by the courts based on the establishment and/or equal-protection clause. I think we also agree that the amendment more plausibly violates the equal-protection clause. However, I’m still going to argue that it should not be overturned even for that reason, though my argument is tentative.

In Colorado, by law the state government distributes a document commonly called the “blue book” that contains the language of ballot measures as well as summaries of arguments from proponents and opponents. The 2006 blue-book information about Amendment 43 pertains to this discussion:

Summary and Analysis

Definitions of marriage affecting Coloradans. Federal statutes define marriage as a legal union between one man and one woman for purposes of all federal laws relating to marital status. Colorado statutes define marriage as a legal union between one man and one woman for purposes of the state’s laws relating to marital status.

For a marriage to be valid under Colorado statutes, it must be: (1) between a man and a woman; and (2) licensed, solemnized, and registered according to established procedures. In addition, Colorado recognizes common law marriage between a man and a woman who live together and hold themselves out publicly as husband and wife. Common law marriages are treated exactly the same as licensed marriages.

Legal effects of marriage in Colorado. The marriage relationship in Colorado provides spouses with a number of legal rights, responsibilities, and benefits, including:

* collecting benefits such as pensions, life insurance, and workers’ compensation without being
designated as a beneficiary;
* jointly incurring and being held liable for debts;
* making medical treatment decisions for each other;
* protection from discrimination based on marital status in areas such as employment and housing;
* filing income taxes jointly; and
* ending a marriage and distributing property through a legal process.

Arguments For

1) The public has an interest in preserving the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman and, as such, provides the optimal environment for creating, nurturing, and protecting children and preserving families.

2) A constitutional amendment is necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. In Massachusetts, a statutory definition was not sufficient to prevent a court from requiring the state to recognize same-sex marriages. Any change to the definition of marriage should be determined by the voters, not judges.

Arguments Against

1) Language that limits marriage to opposite-sex couples does not belong in Colorado’s Bill of Rights, which generally guarantees individual rights. Amendment 43 may be unconstitutional because it denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.

2) Adding the proposed language to the constitution is unnecessary because there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman. Additionally, federal statutes define marriage as between one man and one woman for purposes of federal laws.

I’m not finding much here relevant to the establishment clause. While I think the “arguments for” are faulty, I also think that they are separable from religion.

So what about the equal-protection clause? The second “argument for” claims that the goal is to prevent the courts from overturning state law. And, as an addition to the state’s Constitution, Amendment 43 would restrict the action of state-level courts. But it would not stop federal courts from tossing it out on equal-protection grounds.

The first “argument against” expressly raises the matter of equal protection, claiming that Amendment 43 “denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.” However, the second argument points out that “there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman.”

As discussed previously, Amendment 43 does not seem to restrict “domestic partnerships” for gay couples. Thus, if a court were to intervene on equal-protection grounds, I think the more likely route would be for the court to require the state to allow for “domestic partnerships” in statute.

I have suggested that, regardless of the position of the courts, the legislature should provide for “domestic partnerships” through statute.

Would this, as Puzycki argues, still violate the equal-protection clause? I remain unconvinced.

Puzycki claims that offering “marriage” contracts for heterosexual couples but “domestic partnership” contracts for homosexual couples would create separate status for the two, and “‘separate’ implies inequality.” However, unlike segregated schools, having two titles for contracts of romantic unions would not physically separate heterosexuals from homosexuals. The only difference that I can see is that the contract would have a different title on top, which doesn’t strike me as much of an imposition.

I don’t want to fall into the trap of failing to take the principled stand on this one. But I just don’t see any significant difference between “marriages” and “domestic partnerships” for gay couples. Why fight for eliminating a distinction that doesn’t matter? Adding “domestic partnerships” via statute would be a lot easier than removing Amendment 43 and instituting “marriage” for gay couples. As far as I can tell, we’re not even talking about a “whole loaf” versus “half of a loaf” here; we’re talking about the same loaf in a differently-labeled wrapper.