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Deadlock Over Wedlock By Christopher
Lisotta As the debate over same-sex marriage becomes a larger national issue, with implications that go far beyond next year's presidential election, communities across the country have begun to debate the pros and cons of exactly what legal recognition of gay relationships means. The Williams Project, the UCLA School of Law's sexual-orientation think tank, decided to step into the fray and sponsor a debate on marriage, civil unions, and domestic partnerships. In a crowded lecture hall on the UCLA campus in Westwood, more than 200 law students, gay activists, marriage traditionalists, and curious members of the public listened as speakers on both sides of the issue sifted through the legal arguments. "For people who are opposed to same-sex marriages, I have a simple solution," began Erwin Chemerinsky, a USC law professor and a member of the pro-marriage side of the debate. "They shouldn't marry someone of the same sex." Chemerinksy went on to say that any law that infringes on a person's fundamental rights has to meet strict scrutiny, something that current marriage laws do not do. These laws discriminate on the basis of gender primarily, as gay people can marry people of the opposite sex. "Same-sex couples should have the same right to be disappointed by marriage as opposite-sex couples," he noted. On the con side, Lynn Wardle, a law professor at Brigham Young University's (BYU) J. Rueben Clark Law School in Provo, Utah, started by saying, "Men and women are different," and noted that "calling a same-sex union a marriage doesn't make it a marriage." For Wardle, the issue of private yearning wasn't a compelling enough reason to open up marriage to same-sex couples, since marriage is a preferred institution. Wardle also argued that sexual orientation and gender are not in the same category as race. "Antimiscegenation laws were adopted to stigmatize," Wardle said. "We do not have a constitutional amendment [such as the 13th Amendment, which ended slavery, and the 14th Amendment, which established equal protection] establishing the same value for same-sex couples." At one point Wardle and Chemerinsky got into a tussle over polygamy and incest, which Wardle warned could no longer be criminalized if same-sex marriage became legal. "Why is there a clean line?" Wardle asked. Chemerinsky noted that polygamy has traditionally been the practice of subjugating women in the United States, and that there is a state interest in preventing that kind of behavior, which spurred Maggie Gallagher, president of the Institute for Marriage and Public Policy, to note that creative Americans could surely come up with some sort of polygamous relationship without women being subjugated. Gallagher, a nationally syndicated columnist and co-author of "The Case for Marriage," who spoke of her own experience of single motherhood, pointed out that studies have shown that the best way to raise a child is in a traditional two-parent structure, and that society should do everything it can to ensure the creation of more stable families, something that wouldn't come about with the introduction of same-sex marriage. Grace Blumberg, a UCLA Family Law professor, shot back that "this objection is supported neither by evidence nor logic," and pointed out that parental income and education are also highly correlated to the success of children, yet society puts no breaks on child rearing for these groups. "There is not a study in existence that says two parents of opposite sex are better than parents of the same sex," she said. As Gallagher and Blumberg began to argue back and forth, Chemerinsky interrupted, pointing out that Gallagher's disapproval notwithstanding, lesbians can have children quite easily and gay men are allowed to adopt in most states, so they are parents regardless of legal recognition of their relationships. "It's not whether they have children, they have them all the time," he said of gays and lesbians, noting that the issue is really whether it is better to have same-sex married couples with kids or same-sex unmarried couples with kids. William Duncan, executive director of the Marriage and Family Law Research Grant at BYU, looked at the issue from a legislative perspective, arguing that the recent success of California's AB 205, which strengthened the state's domestic-partnership statutes, was really an end-run around Proposition 22, the referendum that said marriage in the state is between a man and a woman. Filling in for no-show Equal- ity California Executive Director Geoffrey Kors, openly gay moderator and UCLA law professor William Rubenstein joined the pro side, stating, "This is my life you're talking about here. Lesbians and gay men and bisexuals fall in love just the same way everybody else does." Rubenstein also noted that knowing if someone is gay "hasn't told me anything about their reproductive capacity. Lesbians and gay men and bisexuals want to become parents for all the same reasons." Rubenstein also took on the double criticism that conservatives bring up when they slam "activist courts" for ruling for gays and lesbians, while at the same time deeming pro-gay legislatures like California's out-of-step. "Whatever forum people turn to and start winning in, we're told we're in the wrong place," he explained. "Just tell us where to go, and we'll do our thing." "All I'm asking for is to play by the rules," Duncan said, stressing that in his opinion, the problem with AB 205 is its violation of Proposition 22. Brad Sears, the director of the Williams Project who jumped in to serve as moderator, asked Duncan his opinion of AB 205 if there wasn't a Proposition 22. Duncan responded with a question of his own. "Why does it [AB 205] require an intimate relationship between two parties?" he asked, noting that all sorts of people could benefit from AB 205's expanded rights. "Why not a child and a parent?" Sears then opened up the floor to questions from the audience. When asked about the question of a constitutional amendment, which in different forms seeks to define marriage as a union between a woman and a man and has made traditional conservatives concerned about a federal reach toward something that has always been the responsibility of each state, Wardle was less enthusiastic. "I hope that that's not necessary," he said. "That's not one of the powers given to the federal government. I'm troubled." Gallagher, however, saw the amendment as the way to go. "I see marriage as one of the small number of institutions that should be recognized," she said. "This definitely is necessary to protect a society." Rubenstein took a more pragmatic view of the "marriage as a states' rights" issue as the debate began to draw to a close. "I would love the federal government to federalize the issue if they came out with a position I like, but for now I'm sticking with states' rights," he said. "There will always be states where we will never win."
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