Ken McElroy Online

No Rational Basis for Redefining Marriage

Ken McElroy
March 20, 2005

San Francisco Superior Court Judge Richard Kramer ruled last week that the ban on 'same-sex marriage' in California is unconstitutional, saying the ban violates the "basic human right to marry a person of one's choice," and that he could think of "no rational purpose" for limiting marriage to two people of opposite gender. If the judge is really that limited in his thinking ability, he should be removed from the bench at once.

The judge has it backwards - there is no rational basis for redefining marriage. It's self evident to most people that male-female relationships are essentially different from same-sex relationships. For society to recognize that fact in the law is entirely legitimate. We are under no obligation, constitutionally, morally, or otherwise, to ignore cultural and biological norms in our laws.

The burden of proof is not on those who define marriage as it has always been defined and recognize the unique role of male-female sexual relationships in our society. The burden is on those flat-earthers who wish to argue that male-female relationships and same-sex relationships are identical. It's not enough to say there are some similarities. There are important differences, so it's OK for our laws to say so.

Even before this one judge's opinion, every person in California has been legally allowed to marry, subject to the same limitations. This is the definition of equality under the law. Every person in California can marry one person, who is an adult, who is of the opposite sex, and is not a blood relative. Those four criteria apply equally to every Californian.

Judge Kramer's standard, a "basic human right to marry a person of one's choice," would not permit any of those four criteria.

Making distinctions between two different things, i.e. discriminating, is entirely legitimate. That's what all laws do; they discriminate. Blanket statements that "all discrimination is wrong" are just empty rhetoric. Discriminating against some trait, like skin color, is not the same thing as discriminating among different forms of behavior.

"No discrimination" does not mean "no limits." A law against speeding discriminates against people who exceed the speed limit, but that isn't illegal discrimination because the same speed limits apply to every individual. If you made a law that had different speed limits for black drivers than for white drivers, then you would be discriminating wrongly, and illegally, because there is no rational connection between skin color and driving. The connection between gender and sexual relationships should be obvious to anyone, however.

Skin color has nothing more to do with marriage than with driving. That's why laws against inter-racial marriage were wrong. Gender has everything to do with marriage. Most people discriminate based on gender in their personal lives when they date and marry. Most people would not have an identical reaction if their own son brought home either a female or a male fiancée to meet the folks. There's nothing irrational about society recognizing the same distinctions through its laws.

Nobody really believes race and gender are analogous. Imagine walking into a public building and seeing two restrooms - one labeled "White" and the other labeled "Non-White." The vast majority of Americans would be shocked and horrified to see such a thing, and rightly so.

Now imagine walking into the same public building and seeing two restrooms - one labeled "Men" and the other labeled "Women." Would you be just as shocked and horrified, or do you agree that race and gender are not analogous, legally or morally?

There are all sorts of human relationships that the government doesn't license - friends, roommates, co-workers, dance partners, siblings, neighbors. Because we license one type of relationship does not obligate us to license every type. It's perfectly legitimate to treat different relationships differently. People happily engage in all sorts of behavior without official government sanction; couples can live together happily without it. So happiness of couples is not the reason society sanctions marriage.

Advocates for redefining marriage often respond to the argument that marriage is primarily about procreation by arguing that some heterosexual couples cannot or do not procreate. But we make laws based on the rule, not the exception. There is no reasonable way for the government to discern when a male-female couple applies for a marriage license whether that couple will bear children in the future. We don't have to require a fertility test for every couple to say that the potential for opposite-sex couples is, as a rule, different than that for same-sex couples.

One of the inherent, fundamental interests of government is to perpetuate the society it governs, and try to provide the next generation with stable homes, preferably with a mother and father. We officially sanction marriage for the sake of society, more so than for the sake of married couples. Same-sex and opposite-sex couples simply do not fulfill the same role in our society. We are under no obligation, through our laws, to pretend otherwise. That would be irrational.

Ultimately, the proper place to decide these issues is in legislatures, not courthouses. If Judge Kramer wants to legislate, he should resign from the bench and run for legislative office.