Same-sex marriage: Who says it’s a right?

Posted: May 18, 2012

The love that “dare not speak its name” started chattering rather loudly last week through a new presidential megaphone. Barack Obama announced that he was personally in favor of same-sex marriage, thereby energizing his somewhat-disgruntled base and alienating his already disgusted opponents. The real issue is whether this announcement, which has absolutely no legal importance, will move the undecided middle in either direction.

There are a lot of reasons why people oppose what some call a “civil right” and others call “an abomination.” Obama knew that he was never going to win the vote of those who think homosexuality should be hidden from public view, not celebrated on top of a three-tiered cake. He also knew that he had the LGBT vote locked in, even if he kept dancing around the marriage issue. Who else were they going to vote for?

The real targets of his confession, nicely scripted and soulfully delivered, were the people who consider themselves fair-minded moderates who don’t think that the law should get into micromanaging personal relationships but who also resent being called homophobes because just because they haven’t jumped on the “denying marriage rights is just like racism” bandwagon.

A few days ago, I read a thread on Facebook where an African-American questioned the legitimacy of comparing so-called “marriage equality” to the struggles of blacks during Jim Crow. He expressed what many of us, not just those in the black community, have been feeling all along. To put what racial minorities have suffered alongside of the inability to get married strikes me as simplistic and extremely dishonest.

Not being able to vote, not being able to get a quality education, not being able to eat in a restaurant, not being able to own a business, and not even being able to walk down a street without the fear of being lynched for something you cannot change or — much more importantly — hide, is infinitely worse than not being able to get your partner’s Social Security benefits. Being brought to a country naked, in chains, is a lot worse than being told you can’t inherit your partner’s property. Seeing crosses burned on your front lawn is a human-rights violation; not being able to have your marriage announced in the New York Times, not so much.

It seems duplicitous to piggyback onto a movement that fought for a lot more than economic parity and call it a crusade for civil rights. This, of course, makes me a homophobe in the eyes of many, including a lot of people who read philly.com. But my opposition to same-sex marriage has less to do with bigotry (religious or otherwise) and more to do with not wanting to be steamrolled into recognizing a constitutional right that, as yet, doesn’t exist.

Regardless of the hot air that blows from some legal mercenaries in the LGBT movement, there is no fundamental right to same-sex marriage. You will hear them talking about Loving v. Virginia, a case that overturned laws barring interracial marriage. But that case dealt solely with the issue of discrimination based on race, and did not upend the centuries-long tradition of heterosexual marriage, an institution designed and developed to provide for the welfare of children. The fact that some hetero couples can’t or don’t have children is irrelevant. The institution, imperfect as it is, was designed to promote that goal.

But even if it wasn’t, society has a right to determine how it’s going to divvy up its limited resources. If the state believes that certain relationships deserve preferential treatment, it’s entitled to make that choice — assuming, of course, there is a rational basis for that decision. We don’t allow children to marry adults. We don’t want to encourage incest. We don’t think that a brigade of wives and only one hubby is a good idea. It’s therefore hard to understand why a state can’t decide to keep two men from plighting their troth to each other. Unless we are willing to accept polygamy and allow people to say “I do, I do, and I do, too,” it is hard to explain just what unique aspect of same-sex marriage entitles it to constitutional protection. And when you look at it that way, you realize that marriage “equality” is actually preferential treatment for one group of citizens.

Of course, that’s not the popular view. And Obama is no idiot. He reads the polls. He knows how to get Newsweek to put him on the cover in a halo. And he knows how to strategically “evolve” on issues of earthshaking importance, like whether a tiny demographic minority has the right to upend centuries of jurisprudence, tradition and common sense.

Just call the opposition bigots. And don’t pay attention to that Constitution behind the curtain. n

Christine Flowers is a lawyer. Send email to cflowers1961@gmail.com and read her blog at philly.com/FlowersShow

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