On the Issue of Gay Marriage

The American Family Gazette

Volume I, 10/09


Californians are voting on an amendment to the state constitution to ban homosexual (gay) “marriage” come November 4.  This is the second time a measure has been on the state ballot to ban conferring the title, or of recognition of Marriage, on formalized homosexual domestic relationships.  Last time, in 2000, it was in the form of a law, not a  constitutional amendment, and although Californians voted in favor of such a state law—by 61% of the vote—, it was overturned at the state level as “unconstitutional”.  So now, the people are being asked again (to vote) if they want to change the state constitution to allow what they voted for previously, i.e., to reaffirm that “marriage” constitutes a union between a man and a woman exclusively.

Those in favor of allowing formalized homosexual relationships to qualify as a marriage argue for the protection, or the extension, of individual rights; that it is discriminatory to deny such distinction to some domestic relationships—or unions— and not others. To quote their propaganda on the issue, it is “unfair, unnecessary, wrong”.  It is discrimination, they claim to deny the “right to marry” to two persons of the same sex who are in love with one and other and, like any other couple, are committed to each other and want to spend their lives together. Those opposed to sanctifying homosexual relationships as “a marriage” tend to do so not as denying anyone their rights, or as discrimination, but more on a basis that such relationships do not conform to either (1) a usual and common societal or cultural understanding of what marriage consists, or (2) that the usual and normal results of what marriage, in most instances, results in (procreation) are absent—by default— in homosexual domestic relationships.

Both sides appear to make this a conservative vs. a liberal issue.  It isn’t. It isn’t, as some would define it, a matter of “justice as fairness”, or an issue of majority vs minority freedoms.  It’s a rather broad, cross-cultural issue, in the sense of what the institution of what we define as marriage has traditionally been, is, and will be in the future.  It isn’t a normative issue of what a marriage “should be”.  It’s a positive matter of just what marriage is. So, just what is  marriage?

Marriage is more than a state of mind.  It is more than a physical relationship, it is more than a religious recognition or a civil union.  Marriage is the formally recognized—or even the informally recognized—and societally condoned institution we employ to propagate our species. Not only physically propagate our species, but to do so in comformity with an interwoven fabric of social, economic and political institutions within which we conduct our lives.

One need only ask themselves, if a homosexual relationship—as loving or as caring or as permanent as it might be— is capable of providing society with these basic necessities to qualify as “a marriage”: Family and a future. It isn’t.  It is a sterile relationship in this sense—and only in this sense—and thus differentiates itself from the normal expectations of a heterosexual union the preponderance of us, as a society, define as the institution of marriage. A homosexual union produces no off-spring; it socializes no next generation; it contributes nothing to the education system (to educate), it creates no “family tree.”  It simply lacks the basics of what (our) society has determined constitutes marriage.

And this is aside from any religious considerations.  Not all marriages are religious, either by ceremony or by personal inclination.  Many are civil in nature.  But in a heterosexual situation, such unions lead naturally to at least the expectation of producing what we expect, or at least anticipate will result from such a union.  This is simply not the case with homosexual unions.  If uniting parties and churches are in agreement, there is no reason such unions cannot be formalized religiously.  However, this should be left to the discretion of the parties and the churches to decide.

Those in favor of condoning homosexual unions as “marriages” argue (in their Prop 8 literature) that Prop 8 eliminates the rights for same-sex couples to marry.  That Prop 8 would deny equal protection and write discrimination against one group of people…  First of all, where does it state that same-sex couples have a right to marry?  Rights are the results of laws.  In the absence of a law, such a non-prohibited “right” may be assumed, but that does not make it so.  If there is a law on the books providing same-sex couples the right to “marry”, they need to be specific about it in their claims. To argue that a right to form a domestic union is in all respects the same as to enter into a marriage is a leap of logic and reason that I trust the above will dissuade. Wanting a right and having a right are two different issues.

On the purported issue of denying equal protection to one group of people, proponents are likewise on very thin ice with this argument.  Here is what the 14th Amendment has to say regarding equal protection of the law, under definition of terms:

“The inhibition against denial of equal protection of the laws has exclusive reference to State action.  It means that no agency of the State…, and no person, office or agen
t exerting the power of the State shall deny equal protection to any person within the jurisdiction of the state.  The clause prohibits ‘discriminating and partial legislation* * * in favor or particular persons as against others in like condition.’” 

The key provision here is obviously, “in like condition”. 

It is an un-bridgable gap to attempt to defend a homosexual union and a heterosexual union as a situation of persons “in like condition”.  Unless this can be shown, this gap bridged, it is, as per the 14th amendment, not a case of discrimination or elimination of any ones “rights.

That same-sex couples may want equal recognition of the legitimacy of their unions with heterosexual couples may be understandable.  But understanding their desire does not bridge the gap between what is understood to be the product of a “married couple”.  If the issue was merely a matter of semantics, it might be resolvable in their favor.  But, it is not.  It is a substantive difference.

If  Californians  vote for a constitutional amendment prohibiting same-sex marriage, it will be by majority, and in a democracy, the majority carries the day.  While minorities have rights protecting their status, they do not have the right (to my knowledge) to thwart the will of the majority, so long as such will is not demonstrably prejudicial or discriminative of such minority’s freedoms.  To the best of my knowledge, most reasonable people today recognize the issue of same-sex relationships.  At the civil level, most states have provisions for same-sex unions that carry with them most of the civil rights and privileges that heterosexual couples enjoy in “marriage”.  They are not “second class citizens”, even if today they continue to be regarded as “different” by many people.  And, face it, to many, probably most, they are “different” if only in their sexual lifestyle. That’s not a small matter in our society.

Now, having said all the above, and taken a stand on this issue, should this eventually go all the way to the Supreme Court, I will probably be deemed to be wrong in my conclusion. Why? Because today the public philosophy the political and judicial system most often recognizes is a liberal approach in which the main feature is that government must be neutral among competing conceptions of the good life. Over the course of the twentieth century, the notion that government should shape the moral and civic character of its citizens gave way to the notion that government should be neutral towards the values its citizens espouse, and respect each person’s capacity to choose his or her own ends.  It’s a philosophy that tends to put the right prior to the good, and in so doing, “bracket” moral issues when considering situations before it. It this way it attempts to consider peoples’ rights without making value or moral judgments.

In this case here we have a (very) small population within society that the majority, by their values and judgments, deems is out of bounds in their instances in their demand to recognize homosexual unions as traditional marriages.  The Court will, in all probability, minimize the weight of the majority’s views, which represent the generally accepted “good” in society, to establish new “non-judgmental” rights for a minority. e.g. they should have the right to choose whatever life style they desire, and if this produces a non-traditional union between two consenting adults, agree that it “implies a marriage”. This would be consistent with the current philosophy of the voluntarist conception of individual choice and ends.

Now, I don’t have any real problem with this view, as far as it goes: I would likewise uphold their right to live whatever lifestyle they prefer, so long as it does not infringe on the freedom or liberty of others. But recognizing such a right to choose one’s lifestyle does not, in my view, confer upon this minority any parallel or implied right to usurp or degrade in the minds of those who uphold it a societal institution which, as per above, has usual and specific connotations for which such unions do not (and cannot) qualify. In my view, that would be making a value judgment by the Court which I would insist they have no proper constitutional authority to make.

At some point, the political and judicial system has to reaffirm the idea that society as society is important; that society (the majority) counts. There simply can’t be any lack of an outer-limit of individual conduct and demand if society, if community, is to have any civic and cultural significance and meaning.   




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