Part 1: Legal Impact
Same-sex marriage is not a gay rights issue -- it is a civil rights issue whose outcome is critical to upholding the principles of the American Constitution and Declaration of Independence.
Throughout history, governments and political systems have clearly demonstrated one thing: societies are extremely unlikely to sustain liberty over extended periods of time. From the demise of ancient Greece to the fall of the Roman Empire, governments and societies have tumbled.
If we uphold and adhere to the precepts of our Constitution, equality is blind to race, sex, social status and religion. The person who earns $1 million a year is granted the same singular vote on each election day as the individual who makes $25,000. A woman must pay the same taxes on the money she earns as a man. If an individual of Asian or Italian or Hispanic descent is accused of murder, they are tried and sentenced under the same laws as someone white, Arab or African American. Our legal system does not have separate courts for Catholics, Muslims, Jews or Buddhists. Nor does our legal system prohibit American citizens, based on race or religion, from walking into a Justice of the Peace and marrying the person they love.
While the specific tenets and traditions of an individual's place of worship may have internal doctrines that disagree over whether two people who do not share similar religious or cultures stories can or should marry, the American court system cannot base its laws on subjective faith systems.
Fortunately, we live in a country where it is not the State's position to control private nuptial decisions, any more than it is their right to determine how many children a heterosexual couple may have based on their income. Placing gay couples under a separate legal code that discriminates their civil liberties to marry the individual they love is completely inconsistent with our most basic protections and freedoms.
Equality is not our only legal privilege. Our freedom of speech defends our ability to voice a personal discomfort, or individual moral objection, to all topics, including an individual's sexual orientation. However, to retain our right to free speech, we cannot selectively eliminate the constitutional facet that includes guarding each and every citizen's right to "pursue happiness." For any American, being able to decide whom to marry is inherent in that pursuit, and tied to our freedoms and our government not being able to control our personal lives.
Same-sex couples are denied hundreds of constitutional protections granted to married heterosexual couples. Imagine what it is like as a free American to be in love with someone and be told that you are:
• Denied the right to make decisions to protect your partner's life in a medical emergency
• Denied the right to take leave from work to care for a seriously ill partner
• Denied social security benefits for your partner or disability benefits
• Denied military and veteran benefits for your loved one -- even after you have served our country and put your life at risk to protect the principles of America
According to the New York Times, a same sex couple's lifetime cost of being in a long-term gay relationship versus married relationship can run as high as an additional $467,562. That is neither equal or just.
Much of the public debate surrounding same-sex marriage is presently focused on Proposition 8 -- an initiative in the state of California that abolished the option for same-sex couples to marry, after having previously granted that identical right.
"Initiatives" create a unique and often troubling problem. They do not follow the normal judicial system established by our Constitution and can create conflicting agendas and interpretations of already defined laws. They are citizen-constructed versus having been written by the actual legislators elected to prepare and vet legislation through our legal system. This issue is detailed in a special report in The Economist dedicated to the failure of California's government and its present economic collapse caused by voter-proposed "initiatives" which have failed to meet criteria that are legally sustainable.
Proposition 8 is very likely to become a landmark piece of legislation ultimately ruled on by the U.S. Supreme Court. I found myself deeply tied to this critical piece of our country's history after a lunch where I happened to make a suggestion to the right person at the right moment.
It was August of 2008 and I joined a friend for a birthday celebration. We were sitting in the garden at the Beverly Hills Hotel on a summer day, taking a break from being busy working moms. Across the room, my friends Michele and Rob Reiner were gathered with a group. On the way out of the restaurant, Michele stopped by to say hello. The beautiful Michele looked miserable and, in fact, she was. Her lunch had been a commiseration meal with a political advocacy team over the news that California had repealed the right of same-sex couples to marry.
"You should talk to Ted Olson," I suggested. "Ask him to represent the appeal." If I recall correctly, Michele's first words were, "Are you brain dead?"
Ted Olson, previously the United States Solicitor General, was best known as the rock star conservative attorney who had represented George W. Bush in the famous Supreme Court case Bush v. Gore -- and won.
Liberal and politically active Michele wanted to know what missing piece of my wits might lead me to think that Ted Olson would ever support same-sex marriage. Ted was my brother-in-law. While his marriage to my equally dazzling, highly liberal, sister had ended, my friendship with him had sustained. Over the years, I had watched this brilliant man discuss constitutional issues. It was inherent in his deep respect for America's freedoms and principles that he would be horrified at the idea of our government trying to legislate love. Michele and friends left but about an hour later, I got a call asking if Ted would actually be interested in discussing the case. A few weeks later, we were all having lunch at the Reiners' with several of the key people now working on the case.
Laws in which people try to impose their personal moral stance on national policy simply cannot be tolerated. While one group might find this a convenient method to market and manipulate public opinion on gay marriage, another group might find it equally convenient to implement laws that discriminate against women, race or an individual's social status or education. I could certainly formulate a stalwart and well-founded argument that a minimum education of a college degree should be a prerequisite for an individual being given the right to vote and perhaps even incorporate a viable element that defined why only the top 5% of financially solvent American taxpayers should be permitted to cast ballots on fiscal issues. But as appealing and logical as that might be, it would be unacceptable under a successful democratic constitution.
Laws embody the ideals of a democratic nation only to the extent that every citizen receives equal and impartial justice. Those laws must be based on objective criteria that defend our constitution impartially, not with subjective ethics. It is because of the critical nature of this distinction that we define the separation of church and state so that no one ideology bends justice towards any specific faith or belief system. In a country based on equality, the church needs to get out of bed with the legal system because only when that happens can democracy rest safely.