The distasteful brouhaha in Massachusetts over gay marriage belies the fact that most gay and lesbian Americans are law-abiding, tax-paying citizens who should be allowed to enjoy the rights of every other American - including the right to marry.
The hoopla, in Massachusetts of all places - home of openly gay congressman Barney Frank - proves that even in the most enlightened corners of this nation all pretense of rugged individualism, with its live-and-let-live ethos, has been abandoned. We have instead embraced the religious right's dictate of being in everybody's business.
I still believe that eventually we will look upon the legal barriers to same-sex unions with the same general contempt that we now view those that once barred miscegenation. But the intervening transitional years are proving to be dangerous ones for the dual principles of equality and liberty, and it is far from certain that the Constitution will survive the "traditional values" onslaught intact.
Conservative Republicans are reveling in the prospect of demagoging this issue during an election year. According to a Newhouse News report, a memo authored by Republican pollster Richard Wirthlin called a constitutional amendment to ban gay marriage "an ideal wedge issue." Already President Bush has made cagey statements appearing to support a federal marriage amendment; while most Democratic presidential contenders have been left in the uncomfortable position of trying to explain the difference between civil unions - which they support - and gay marriage - which they don't.
In a stupefying exaltation of form over substance, this country seems stuck on the "m" word. Sure, afford gays equal rights, just don't call their 20-year monogamous relationships, with children raised and sent to college, a "marriage."
But the Massachusetts Supreme Judicial Court was right to reject the "civil union" compromise. As the majority said: "The history of our nation has demonstrated that separate is seldom, if ever, equal."
I only wish it happened some other year. Just as the presidential race clicks into high gear this spring, gay and lesbian couples from all over the United States will be able to travel to Massachusetts to say their legal "I do's."
There would be nothing better for the cause of gay rights (and for Democrats) if, after hundreds of weddings took place in Massachusetts, the newly minted spouses quietly - very quietly - returned to their home states.
But that is not going to happen. Humans lead messy lives. Some people who marry are going to want to divorce, leading to child custody and property disputes. There will be tragedies: sicknesses with medical surrogacy issues and deaths that raise inheritance questions. All of these sticky situations will land in the courts for resolution, and all the answers will turn on whether the spouses are married or not.
Will the courts in states - such as Florida and 37 others - that have passed laws categorically stating they will not recognize same-sex marriages, treat these couples as married or single? As legal commentators have been suggesting, a lot will depend upon the interpretation of the Constitution's Full Faith and Credit clause, which holds that states must respect and enforce the laws and judgments of other states.
Until now, a marriage license in one state was unquestionably accepted as valid elsewhere. Texas allows minors to marry at 14 with parental consent - too young in almost any other state. Still, such marriages are accepted outside Texas's borders. The same holds true for marrying a first cousin, which is barred in Delaware, Arkansas, Iowa and Michigan, among others, but permissible in Florida and a number of others. Married first cousins aren't viewed as single again if they move to one of those states where it is taboo.
However, the 1996 federal Defense of Marriage Act instructs the courts not to require this kind of deference to same-sex marriages performed in other states. We shall soon see whether the courts go along.
One clue is to look at what has transpired since Vermont established civil unions. There have already been a handful of cases where the parties have tried to dissolve their union in states other than Vermont - to mixed results. According to Ken Choe, staff attorney at the American Civil Liberties Union, West Virginia and Iowa trial courts have granted uncontested dissolutions, but in Connecticut, an appeals court refused to recognize the legitimacy of the union and therefore rejected a filing for its dissolution.
These issues are going to be state-by-state determinations with courts going every which way. Expect a royal tangle of immense proportions with children of gay couples being the likely losers.
The mad dash to pass laws and constitutional amendments to keep gay families from being welcomed into a legal status that defines the lives of most Americans is beneath us as individuals and a nation. The one true American value is that we let others live their lives as they wish. Where did all the true Americans go?
