The ruling yesterday by Federal Judge Vaughn Walker, overturning the California State initiative Proposition 8, banning same-sex marriage, and limiting the legal definition of marriage to that between a man and a woman, was accompanied by a "stay" of the ruling, in effect prolonging the ban on marriages, until the matter can be resolved, one way or another, at a higher judicial level. The proponents of the measure will be filing a formal appeal of the ruling with the 9th U.S. Circuit Court of Appeals. Whereas Judge Walker's ruling applies only to California, the 9th Circuit's jurisdiction applies to nine Western States, including California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Would a supportive ruling by the 9th Circuit have the effect of "legalizing" same sex marriage in all these States, or at least laying the groundwork for a tacit legalization in states which had not yet legislated or decided the matter legally? Then, assuming the matter were to reach the U.S. Supreme Court, would a ruling there have applicability in all 50 States? As I understand it, it would.
Given the determination of the Gay Lesbian Community's pursuit of formal legitimation, it's difficult to see how this issue won't eventually be decided at the national level, by the Supreme Court. Given the way the Obama Administration has approached the immigration issue in Arizona, insisting on a higher bracket of jurisdiction, it seems likely that the Constitutional issues of equality and fairness before the law, will eventually be applied, one way or another, to the same sex marriage issue. We seem on the threshold, therefore, of legalizing same sex marriage, and with it, Gay/Lesbian sexual life-styles and Gay/Lesbian sex in America.
On a personal level, I support the idea of civil unions, while questioning the value of Gay parentage, and the formal encouragement of different forms of sexual practice and identity, implicit in the legal acknowledgment of a separate, protected class. I don't think we have any kind of "rational" precedent for the official recognition of "different" life-styles. Sexual preference isn't equatable with racial stereotyping. Using the equality principle to defend the idea that there is no difference between men and women--when it comes to marriage, co-habitation, rights and privileges, child-rearing, and all the functional applications (like military service), and so on--seems to me a deliberately irrational insistence, designed to defend private preferences and behavior which it is not the government's business to legislate. It is one thing to defend the right of privacy and co-habitation by choice, but it is quite another to insist that what one does in private, and through personal, non-binding choice, should be the basis for a protected, defined class of entitlement.
Marriage carries a number of privileges and entitlements which it is society's right to define and legislate. To insist that that right should apply without regard to the sex of the couples, or to the original meaning and purpose of marriage as an institution, is a sweeping departure from historical precedent. If the legalization of same sex marriage is to be used as a pretext for the adoption of Gay parenting in law, I have serious problems with it. In addition, I have qualms about the celebratory affirmation of different sexual orientations in institutional settings. If same sex marriage becomes law, will our children be taught in public schools that Gay Sex is just another alternative choice, like having children out of wedlock, or extra-marital sex? Will "cruising" be practiced at the Junior Prom, with boys dancing with boys, girls kissing behind the quonset huts?
My personal belief--which on no account could or should be the basis for law--is that the decision to pursue a same sex life-style, should preclude the privilege of child-rearing. Proponents of Gay parentage usually try to defend it by claiming that there is no evidence that the children of Gay couples are any "different" than children of heterosexual couples. Whether or not this is true (and I don't for one moment accept that it is), the plain fact is that being raised inside a non-traditional same sex household will tend to legitimate the Gay lifestyle, and to encourage those children, as well as others, to think of themselves as the heirs to that inheritance. Children emulate their parents.