A Compromise Solution to the Gay Marriage Debate

  By: Joe Messerli

A debate that's heating up on the domestic front is the question of whether or not a homosexual couple should be allowed to complete a state-sanctioned marriage equal in status to a heterosexual couple. While countries such as Great Britain and Canada allow various forms of gay marriage, the idea has yet to gain acceptance here in the United States. Local politicians in Massachusetts and California have recently defied the law in trying to allow the marriages. President Bush has proposed a constitutional amendment defining marriage as between a man and women only. John Kerry, who says he opposes gay marriage, is against the amendment and say he believes the states should decide the issue. Homosexuals around the country aren't satisfied with either position. This article examines why none of the current ideas are practical, and it proposes a compromise solution that solves the problem.

The Problems

There are many advantages and disadvantages to allowing gay marriage, but each side has one key reason for taking the position they do. On the for-gay-marriage side, people see the prohibition as a form of discrimination. They cite proven biological causations of homosexuality. Why should a homosexual couple be denied equal rights such as tax filing status, hospital visitation privileges, power of attorney in medical decisions, estate rights, etc.? Why shouldn't a gay couple be allowed to participate in the ultimate expression of love--a marriage? However, the idea of gay marriage hasn't gained acceptance in this country. Polls show that over 75 percent of the people oppose the idea. Americans, like all human beings, are naturally resistant to change. Humans are especially resistant to change when it's shoved down their throats, which is what many see being done by the liberal courts nowadays. As we've seen with blacks' quest for civil rights, change must come gradually over time; otherwise, unrest and further division are created.

On the other side of the debate, those against gay marriage feel such a law change may begin the crumbling of the entire definition of marriage. If gay marriage is allowed, eventually people may be allowed to marry an immediate relative such as a sibling, marry multiple partners, marry a child, or even marry a pet. Obviously some of these examples sound ridiculous. But are they realistic? Will allowing gay marriage lead to such unorthodox unions, especially when 95+ percent of the population would probably oppose such ideas? Unfortunately, the answer may be yes. To learn why, you have to understand how laws are made in the USA.

The U.S. Constitution has absolute supremacy followed by state constitutions and federal/state statutes. Any laws that violate the U.S. Constitution are null and void. Unfortunately, the wording of the constitution isn't always clear, which is where court decisions come in. The judicial branch members have the power to
interpret the laws in the way they see fit. However, a growing trend in America is the ability of the courts to make new law rather than just interpret law, even when the vast majority of the population disagrees with the courts. Two recent examples are the partial-birth ban and the "under God" dispute in the pledge. Despite overwhelming support for the legislative positions, liberal judges overturned the laws and in the process established law. The reason for this is the legal doctrine of stare decisis , which literally means "to stand by previous decisions". This doctrine of American law states that when one court renders a decision, all courts within the same jurisdiction must follow the decision until a higher court overrules it. Thus, when one court in California declared "Under God" in the pledge as unconstitutional, all courts of all states in the west coast district had to respect the decision. One liberal court established a law that affected over 50 million people, 90+ percent of which disagreed with the decision. Consequently on the issue of gay marriage, the idea of a father marrying his daughter may be repulsive to 95 percent of the population, but one liberal court may use the gay marriage decision as legal justification to allow such a union.

George W. Bush's solution is an amendment to the U.S. Constitution, since any court decision cannot conflict with wording directly in an amendment. However, it takes overwhelming support to get a constitutional amendment passed. You need more than 3/4 support from the population, legislature, and states. Since a large percentage of Republicans don't even support the idea, this seems completely impractical.

John Kerry's decision is to just leave it up to the states. In other words, if California wants to allow gay marriage, but Texas doesn't, both states can do what they want. However, this idea is also impractical due to the "full faith and credit" clause of the U.S. Constitution. This means that if one state passes a law, other states must respect and recognize the law. This is why a driver's license in Wisconsin allows you to drive around in all of the other 49 states without having to pass a new driver's test in each. Thus, a marriage in California must be recognized in Texas, Georgia, etc. In effect, all it takes is one state allowing gay marriage to make the unions legal in all states.

The Solution

The solution is an amendment to the U.S. Constitution defining a marriage between two people rather than just between a man and a woman. The exact wording of the amendment would have to be debated and amended by legal scholars, but it would look something like this:

A "marriage", as recognized by federal, state, and local governments, is defined as a union between two adults. The two adults must both be over the age of 18 and must not be immediate relatives (sibling, parent, first cousin, aunt, uncle, grandparent). Any further restrictions of the marriage are left up to the states, with any state decision applying only to the state that passes the law and any other state that recognizes a similar marriage.

This amendment would likely have the bipartisan support to pass since it doesn't legalize gay marriage but prevents courts from having the ability to slowly destroy the definition of marriage. Laws could then be crafted without having to worry about the "full faith and credit" clause being used as a reason to crush them. States that are more liberal would have a practical way to stop what they see as a form of discrimination. The more conservative states that don't accept the idea of gay marriage would be able to keep things they way they are, or simply change at the pace they can accept.

Obviously the extreme right and extreme left aren't going to accept any form of compromise, but it's up to all of us in the middle to put forth a practical solution that is much better than doing nothing at all. Religions are perfectly within their rights to
not recognize the marriages, since we're talking about civil marriages. Homosexuals may still see it as a form of discrimination, but they would likely have the legal right to marry in certain states within a couple of years. In other words, both sides have a reason to be unhappy, but both sides also have a reason to feel better.

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