Genderless Marriage

I think being a retired Judge gives us an insight and many things that clarify why this proposition [8] is so important to work toward!

GENDERLESS MARRIAGE: A BRAVE NEW WORLD?
by William T. GarnerJudge of the Los Angeles County Superior Court, Retired

It is no exaggeration to suggest that when California voters go to the polls in November to select a new president, they will also decide another issue at least as important. A 'yes' vote on Proposition 8 will create a state constitutional amendment allowing marriage only between one man and one woman. A 'no' vote will allow same-sex couples to marry.

What is the benefit and what is the harm of recognizing genderless marriage (marriage without a gender requirement)? Aside from being able to call themselves 'married, 'there appears to be no benefit to same-sex couples that did not exist at the time of the 4-3 California Supreme Court decision of May 15, 2008 legalizing genderless marriage. Section 297.5 of the California Family Code already provided that persons who register as 'domestic partners shall have the same rights, protections and benefits as married spouses. However, the harm of official recognition of such relationships as 'marriages' may be irreparable.

Although we cannot foretell the future with certainty, if a genderless marriage remains lawful, then so must a polygamous marriage be. The California Supreme Court effectively changed the traditional definition of marriage by holding that an individual must be allowed to establish a marriage with a person of either sex with whom the individual has chosen to share his or her life. If the person chosen is already married to another and all parties agree, in light of the court's language, how can the state refuse to recognize a three-party marriage, or indeed place any limit on the number of marriage partners?

We have recently seen in Texas and elsewhere that there are many people who want such a marriage, and it appears that choice now trumps tradition. Many personal freedoms, including the free exercise of religion, may well be diminished or lost if the amendment is not adopted. Although the free exercise right is provided in both the U.S. and California Constitutions, because genderless marriage has now been held to be another constitutional right, who can doubt that there are judges who will decide that the marriage right must prevail over the religious one?

Consider the following: In Boston, the Catholic Charities recently closed down its adoption program because the state of Massachusetts insisted that every adoption agency must allow same-sex couples to adopt. Thereafter, an affiliated agency in San Francisco did the same. A Methodist group in New Jersey lost part of its tax-exempt status because it refused to allow two lesbian couples to use its facility for a civil union ceremony. In Albuquerque, a wedding photographer was ordered by the state's Human Rights Commission to pay $6,637 to the attorney for a gay couple because she declined to photograph the couple's commitment ceremony. She had explained to them that because of her religious beliefs she photographed only traditional marriages.

What of the effect on education? Section 51890 of the California Education Code requires teachers to instruct children as early as kindergarten about the legal aspects of marriage. The state's position that same-sex couples are equivalent to opposite-sex couples will in all likelihood require changes in school instruction to ensure that a homosexual relationship is not treated differently from a heterosexual one. We can anticipate that the princess in a children's story will be as likely to marry another princess as a prince. Differences between sexes will be minimized or ignored. What confusion will that create in the minds of young boys and girls? If a parent objects to the teaching of homosexuality in the public schools, there is probably little he or she will be able to do about it.

A federal district court in Massachusetts has ruled that parents may not prevent an elementary school from teaching their kindergarten and first-grade children that homosexuality and same-sex marriage are moral and acceptable, even though contrary to the parents' sincere religious beliefs, and that the parents are not entitled to notice of any such instruction or to opt their children out of it. That decision has been affirmed by the First District Court of Appeals. Incidentally, in that case a first grade student was required to listen to a teacher read the book King and King, a story of a prince who falls in love with and marries another prince. (Parker v Hurley)

In England, a Catholic school has been prohibited from firing an openly gay headmaster. In Quebec, a Mennonite school was informed by the Ministry of Education that it must conform to the official provincial curriculum, including teaching that homosexuality is an acceptable alternative lifestyle, or be shut down. The Mennonites say they will leave the province. A similar government position can be anticipated here. A loss of free speech rights is likely. In Canada, the Alberta Human Rights Commission issued a ruling forbidding a Christian pastor from making 'disparaging' remarks about homosexuality. Expect the same in California.

Opponents of Proposition 8 ask the public to discard the wisdom of centuries by giving official approval to same-sex marriage. But at what price? The mere fact that a practice is old may not make it right but neither does it make it wrong. We have already witnessed the loss of important rights, and recent history suggests that defeat of the proposition will bring others. Let us hope for the triumph of reason over emotion.