Keep the Government Out of Our Bedrooms and Ensure Equal Rights for All

by Professor Byron L. Warnken on February 25, 2011

My 28-year-old daughter is an attorney.  She said to me, “Dad, it is hard for people of my generation to believe that, as recently as when you were in college, it was illegal, in some states, for people to marry based solely on their race.”  She then said, “I bet when I am your age (which is 65), my children will find it hard to believe that when I was 28, it was illegal, in most states, for people to marry based solely on their sexual orientation.”

Marriage has to do with long term love, long term commitment, and – yes – sex.  “Same sex” marriage is a complicated issue for many people.  First, under the Judeo-Christian tradition, on which this country was founded, the institution of marriage strongly encourages procreation, which, obviously, involves sexual intercourse between two people of the opposite gender.  Thus, there is religious and historical pressure to not expand the concept of marriage.

Second, for many people, issues of morality and sexuality are intertwined.  It was not until 2003 that the Supreme Court held that the right of privacy made it unconstitutional for a legislature to enact laws that made criminal acts of sexual conduct, e.g., anal intercourse, when engaged in by consenting adults in private.  Prior to 2003, the Supreme Court totally protected sexual conduct among married persons, but, for non-married persons, protected only procreative sexual conduct, i.e., sexual intercourse in its traditional format.  Thus, prior to 2003, every state had the power to decide whether to make criminal acts of sexual conduct among people of the same gender.  Maryland eliminated such crimes, through judicial decision, in 1991.

Third, it is speculated that about 90% of people are heterosexual and about 10% of people are homosexual.  Many of the 90% are simply biased against the 10% for whatever reason.  Plain, old fashioned, dislike and discomfort based on difference.

Times and attitudes in our society are changing, and I think in a positive way.  Many people throughout the country, many legislators in my state of Maryland, and many people in the Obama administration are re-thinking the “same sex” marriage issue.  And that makes sense.  Why should some people be allowed to have the blessings – and the legal rights – of marriage, while other people are denied those blessings and rights, solely based on their sexual orientation?  The answer is that, other than the arguments above, there is no logical reason why they should be treated differently.  It seems to me that the desire to treat them differently is based on prejudice, on fear, and on blind adherence to tradition for its own sake.  These attitudes seem to be slowly ameliorating, and there seems to be a much greater recognition of, and perhaps a greater acceptance of, the fact there is homosexuality in America, and that is not necessarily a bad thing.

This week, two things happened.  The Maryland State Senate voted, on second reader, by a vote of 25-22, to approve legislation that would authorize “same sex” marriage.  There are still numerous steps in the process.  There is the need to approve the proposed legislation in the Maryland House of Delegates.  There is the need to have the legislation, if approved, signed into law by the Governor.  I am reasonably certain that would happen.  There is also the possibly that there will be a need to win the support of a majority of the people of Maryland, in the event that the law goes to referendum .  If “same sex” marriage becomes the law in Maryland, that would make Maryland the seventh state to legalize “same sex” marriage.  As recently as 2006, “same sex” marriage was defeated in all 31 states in which the issue went to referendum.  But, five years ago is a long time ago on this issue.

The other thing that happened yesterday was that the Obama administration announced that it would no longer defend the “Defense of Marriage Act.”  This 1996 congressional legislation was enacted when the concept of legalizing gay marriage was just starting to take hold, and many people “feared” that gay people would travel to a state in which “same sex” marriage was lawful, get married, go back home, and the home state might be required, under the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage as a lawful marriage, even though such marriage could not take place in that state.  The statute was an attempt to defeat “same sex” marriage and to evade the constitutional requirement.

Two of my former law students – one a man and one a woman – are gay and are judges in Maryland.  Each traveled with his or her respective partner – now spouse – to a state that permits “same sex” marriage.  When the first of these two attorneys became a judge, about six years ago, the fact that the Governor had appointed a gay attorney to be a judge was, according to the media, newsworthy.  When the second of these two attorneys became a judge last year, like when heterosexual attorneys become a judge, no one even noticed or seemed to care about the judge’s sexual orientation or marital status.

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