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Marriage and Same-Sex Unions: One and the Same?

11/24/2003 - 4:00 AM PST

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Activists Lose Some Battles, But Debate Goes On

NEW YORK, NOV. 22, 2003 (Zenit) - Same-sex "marriage" is once more in the headlines after Tuesday's controversial decision by the Massachusetts Supreme Judicial Court. In a 4-3 decision, the court ruled that same-sex couples have a right to civil marriages, according to the provisions of the state constitution. The decision follows recent defeats for same-sex couples in state courts in New Jersey and Arizona, where appeals may still be made.

The judgment, written by Chief Justice Margaret Marshall, affirms that the definition of marriage as a union of a man and a woman unjustly "deprives individuals of access to an institution of fundamental legal, personal and social significance" just because they are of the same sex.

There is a lot more at stake than just a case of simple discrimination, as a wide-ranging collection of opinions entitled "Marriage and Same-Sex Unions -- A Debate," published just a few months ago, reveals.

Edited by Lynn Wardle, Mark Strasser, William Duncan and David Orgon Coolidge, the work pairs off contributors in a debate format on a succession of topics, from the nature of marriage and what same-sex unions imply, to notions of equality, discrimination and constitutional rights.

One of the main themes running through the book is the nature of marriage itself as an institution. Arguing in favor of same-sex marriage, Evan Wolfson sees marriage mainly as a source of benefits. He maintains that married couples receive from the state multiple protections and responsibilities, which are being unjustly denied to same-sex partnerships. In this sense, putting same-sex unions on the same level as heterosexual marriage is an essential part of the battle to gain equality for homosexuals, he says. Wolfson sees positive elements in establishing legal recognition of civil unions, such as has occurred in the state of Vermont. But "they do not provide equal benefits and they leave couples and those who deal with them exposed to legal uncertainty," he said.

In response, Maggie Gallagher points out that Wolfson's argument ignores a key question: whether marriage is just another word for a private, intimate relationship or if it is something more. Affirming the latter position, Gallagher explains that marriage is a normative social institution; its reason for being is to support and encourage a certain type of union that is long-lasting, child-centered and faithful. Marriage is a key institution in producing, rearing and nurturing the next generation. Therefore, putting same-sex unions on the same level as marriage would be a move in exactly the wrong direction we need to take in order to cope with family difficulties, Gallagher contends.

Gallagher also notes that the forms of marriage in diverse societies share some common features. Marriage creates rights and privileges between the couple and their children. It is also normative, defining for the children what the relationship is and what purposes it serves. Same-sex marriage puts all this at risk.

"Wholly malleable"

William Duncan also addresses this theme, noting that activists are attempting to use the state to redefine marriage in the name of reshaping civil society. The new marriage model has a number of characteristics. To wit: Marriage has nothing to do with sexual difference; it is a wholly malleable social institution; same-sex couples are held to be just as capable of looking after children; it is to be distributed by the state as a matter of basic fairness.

This is a "dramatic redefinition" of marriage, argued Duncan. The relationship between a man and a woman is qualitatively different from that of a homosexual couple. He also observed that marriage pre-exists the state and has been recognized by the latter because of its intrinsic value. This is not a theological argument, he noted. Marriage did not come into being by statute and "is not, therefore, wholly malleable."

In relation to procreation, Duncan pointed out that marriage law has recognized the reality that only the sexual relationship of a man and a woman can lead to the conception of a child. "This creates a state interest in the marital relationship that just does not exist in other relationships," he wrote.

Marriage has also always been considered to require a man and a woman, continued Duncan, "because the unique contributions of men and women to child rearing cannot be duplicated by any other contexts in which child rearing takes place."

Teresa Stanton Collett, in her essay, defends the proposition that marriage should receive special protection. She looks into the roots of why homosexuals are having success in trying to redefine the institution. She sees as factors the introduction of no-fault divorce, the changing sexual mores that no longer view ...

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