Thoughts From a Young Legal Mind…

Family, I want to share with you a brief history of my evolution on a hot-button topic, gay marriage.

Flashback some years ago and I, as a Christian man, believed that while we shouldn’t allow homosexuals to get married; we should allow the same benefits accorded a married couple, albeit under a different title such as a civil union. Today, I realize given the role marriage has played in our tradition, case-law, and our own deeply held personal views, this view simply doesn’t go far enough. Everyone deserves equal rights; we can’t call some folks married and say other folks have a civil union because just the difference in name alone suggests discrepant treatment of gays. It’s eerily similar to Jim Crow “separate but equal,” and as the Supreme Court noted in Brown v. Board of Education, “separate but equal is inherently unequal.” So what’s the best solution, the best compromise that will be respecting of everyone’s rights? Reform the tax code, verbiage, and subsequent statutory law to get the government to recognize all partnerships, respect the gay community’s right to love, and respect traditional marriage. A heavy lift, but certainly within the realm possibility for our great nation.

Let’s start with the elephant in the room: the gay agenda. I have said and will continue to say that the gay community has pursued the wrong goal. Instead of fighting for the right to get married, the gay community should’ve focused their efforts on rights instead of a title; by fighting for marriage, gays subverted the real issue of rights. As a result of demanding the right to marry, and nothing else, they have taken the biblical concept of marriage and offended folks who typically hold a traditional concept of marriage. This has resulted in pushback against the gay community from not just the conservative wing of the country, but a fair amount of moderates as well. Let me be clear: Marriage is a biblical concept, steeped in centuries of our country’s tradition and jurisprudence, it was strategic error to pursue the right to marry; emphasis should instead be placed on rights. By granting gays the right to marry we are infringing on those who prioritize traditional values and in some respects we’re back to square one because we’ve compromised one group’s set of beliefs for another’s. However, by no fault of their own, the gay community has been pigeonholed into this fight for marriage because the law recognizes and privileges nothing else short of marriage. Here’s where it gets complicated: because marriage has religious connotations and is protected within religious organizations by the 1st Amendment, and because states provide licenses that recognize marriage (which trigger  rights/responsibilities/etc.) we have gotten into this predicament by using each of these elements to mean the same thing, when in fact they are different. From my limited knowledge, most gay couples do not want official church sanctioned recognition of marriage, they simply want the rights associate with the granting of the marriage license. This is why government involvement is crucial to securing rights for gay men and women.

So how do we respect traditional marriage while acknowledging the right of gays to have their relationships recognized? Reform the law. Instead of asking who’s married, the government should be asking who is in committed partnerships, and basing rights, responsibilities, burdens, and privileges on this basis, as opposed to using marriage, and the traditional religious notions it infers, as the determinative factor. This way gays get the rights the seek, and we respect those who value  marriage in its traditional and historical sense. Give marriage back to the church and respect that tradition, while still maintaining an interest in the partnerships that adults consent to. The difficulty lies in changing attitudes about gay relationships and disentangling the role of traditional marriage from our culture and custom from our jurisprudence. However, difficult as the task may be, it’s within our capabilities and it is our responsibility to seek justice for those on whom this burden bears the heaviest, and the constitution declares no less than equality for all.

I want my gay brothers and sisters to enjoy the same rights, privileges, responsibilities, and burdens of citizenship that I, as a heterosexual man, enjoy. Federalism concerns aside, its important that this mandate of equality come from the judicial branch, as states have consistently shown their inability to recognize partnerships between gays and lesbians. Why? Because when it comes to this sensitive topic, a fundamental issue like the ability to engage in a consensual relationship with another adult should be respected as such. Securing it as a federal right would set the baseline for all states to follow and our principles and values as a nation demand no less. What I’m suggesting allows us to be respecting of all rights, while granting our gay brethren a measure of basic respect. While our history is littered with examples of where we’ve fallen short of the ideal of equality, we nonetheless should continue to strive for fairness.

Big thanks to Arizona State Law Professor Charles Calleros for his guidance and wisdom to help me compose this post. (Although he helped me formulate my ideas for this article, this in no way is to be taken as an endorsement of his thoughts).

I love you all, and there’s nothing you can do about it. Blessings.

JW