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Xrlq - Columnist

Xrlq is proprietor of the blog damnum absque injuria and a sometime attorney. [go to Xrlq index]


The Gay Rights Exception to the Flynt Amendment
Should a noisy minority be allowed to change the meaning of marriage?
[Xrlq] 1/2/04

My principal objection to gay "marriage," aside from the fact that it asks society to redefine a millennia-old concept to suit the whims of a vocal minority, is that marriage involves a bundle of rights and responsibilities, each of which has been debated separately by legislatures over the years, and each of which should be debated separately if any new marriage-like-thing were created for gays, swingers, polygamists, confirmed bachelors, or any other groups whose relationships differ materially from that of the traditional, one man, one woman relationship. So rather than pushing gay "marriage," I say scrap that issue, enact a more sensible version of the federal marriage amendment to keep it from spreading beyond the states that actually want it, and let the rest of us debate the pros and cons of the specific "marriage" benefits gays believe they ought to enjoy, one issue at a time.

One example is joint property ownership. Any two (or more) people can own property concurrently, but only married couples can own it as community property or hold it in tenancy by the entirety. If gay couples feel strongly that they should have all the benefits of community property, fine, what's the harm?

Another example is visitation rights, power of attorney, etc. After all, if a straight, adulterous man has a God-given right to kill his wife, shouldn't a gay man be afforded the same privilege? Why of course ... uh, I mean, yeah, I guess. As much as I dislike the right to die/kill law of which James "It's My Legacy, Dammit" King seems to be so proud, the solution is to repeal that idiotic law and replace it with one requiring a living will, not to restrict its application to "only" 98% of the population. As to the legitimate decision-making powers that married couples should have, I see no reason to deny the same privileges to gay couples.

The list goes on. If you were to compile a list of all of rights/privileges afforded to married couples, and argue that each of these rights/privileges should also be made available to gay couples, I would probably agree with you, or at least not vehemently disagree with you, on about 90% of them. But that other 10% (or whatever) can be a doozy.

As to the other 10% (or whatever), I can only think of two specific rights/privileges afforded to traditional, straight couples that I think should absolutely, positively not be extended to non-traditional unions of any kind. The first is adoption. Do I think gays can't be good parents? Of course not. I think the average single gay man can, potentially, be just as good a father as the average single straight man. I think the same about the average single lesbian vs. the average single straight woman. The only caveat is that the average straight man/woman is likely to hook up with a member of the opposite sex in the future. All other things being equal, a kid is better off having a mother and a father, or at a bare minimum, a mother and a reasonable expectation of acquiring a father somewhere down the road. A second father is not a valid substitute for a mother, nor is a second mother a valid substitute for a father. To pretend otherwise is, in my opinion, to sacrifice the child's best interest on the altar of political correctness. So sue fisk me.

The other right/privilege married couples enjoy but nontraditional couples should not is the right to sue private institutions for discrimination if they are treated as anything other than married couples. Advocates of gay "marriage" often make cursory references to Loving v. Virginia, 388 U.S. 1 (1967), which invalidated anti-miscegenation laws. This comparison is quite a stretch, as neither the traditional definition of marriage nor the legal validity of Richard Loving's marriage to Mildred Jeter - performed in the District of Columbia - was at issue in Loving. Nevertheless, one result of the case is that public and private institutions alike are required to treat mixed marriages and "pure" ones alike. If you doubt this, see how long you can get away with running a motel that rents only to married couples whose marriages comply with Virginia's pre-1967 anti-miscegenation law.

Enter Michael Butler, his partner Richard Butler, and their pro-bonehead attorney, Neel Chatterjee. Despite the fact that Michael Butler and Richard Butler are not legally married (nor can they be under California law), these jokers have managed to roll the two worst features of gay "marriage" into one, by suing Adoption Media, LLC for adhering to its policy of only allowing ads from traditional, married couples on

"This is a clear-cut case of discrimination."

Thanks for sharing, legal eagle. Of course it is. Then again, so is any other policy that involves accepting applications from some people while rejecting them from others. That doesn't mean it is wrong, let alone actionable.

Perhaps Mr. Chatterjee has forgotten about that pesky freedom of association bit. Then again, maybe he hasn't. I suppose it could be argued that when the Supreme Court repealed the free expression clause, they also intended to take the free association clause down with it. Next on the chopping block is that part about free exercise of religion, leaving nothing but an ultra-expansive interpretation of the establishment clause in its place.


This column first appeared at

copyright 2003 Xrlq




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