Saturday, February 21, 2004
My opinion on Gay Marriage Issue

Well, everybody around here kind of knows what my views on this issue is - but only kind of. I think it would help if I clear it a little further.

1. Yes, I believe that any two individuals fully consent to be bound by a contract called marriage should be allowed to do so, without the state getting into a process of judging the social utility of the contract. Now, there are certain difficulties in this line of argument. For example, we would be hard pressed to find justification for, say, anti-trust laws. However, a little more analysis would make it clear that the constitution does not afford companies or commercial entities the same rights that it affords to individuals.

2. I was immensely happy with Lawrence v Texas. However, my happiness had less to do with the holding in that case (though I welcomed that too) than the justification that Justice Kennedy offered for the ruling. His harping on liberty of the individual to make personal choices, and refusal to conduct an enquiry into whether sodomy was a fundamental right (which was the question in the Bowers v Hardwick case) are immensely important. Why? Because, no more is it important for you to justify your action in terms of your fundamental rights for it to escape governmental scrutiny. The burden of justifying the laws it enacts is on the government now. This would make it much more difficult for the government to restrict personal freedoms in the name of morality etc. This is the greatest bulwark against dictatorship of the majority, one of the greatest weaknesses of democracies. If followed through, this would be the Griswold v Connecticut of this century.

3. I think the logical follow up of Lawrence is very important. Removing discrimination in the laws that penalize the very existence of one's identity as a homosexual. For example, the so-called "Romeo and Juliet" law in Kansas and imporuning law of Ohio(now overturned). The Kansas law explicitly awards a much lighter punishment to a person having consensual sex with a minor of opposite sex. Now, as Justice Kennedy says in Lawrence ruling, the consent in the case of minor is not meaningful. That is why sex with a minor could be punishable. This argument is gender neutral - thus whatever punishment the law metes out, it should be irrespective of the gender of the participants. But the Kansas law (enacted in 1999) discriminates between the homosexual and heterosexual encounters, supposedly because heterosexual encounters could lead to marriage! It is a wrong premise, and the law is wrong. Similar laws exist in many states. This kind of discrimination that should be fought.

4. Marriage, IMHO, is not a very pressing pressing problem. It is certainly important. So, if it is going to succeed, I will be happy, and will keep supporting it as an ultimate goal. However, I think CA-like legislations are good for now. Let people see that civil unions work - and that marriage between John and Ashley does not get torn apart by the fact that Jim and Jim are living together, and the state recognizes their relationship.

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