Quindlen column triggers another essay on gay "marriage," the Supreme Court and the prophet Ezekiel

Froth and levity are suspended again, but just for the morning.

It is perhaps because, personally, as a writer wannabe, words are important to me. Certainly, after nearly three decades in the law, I fervently believe that words are the bricks with which our civilization is built. I know that words may change in meaning over time. Bricks erode over time, too. But -- please God! -- bricks should be made of stronger stuff than Alka-Seltzer tablets, that fizz away as soon as water hits them. Words shouldn't change meanings to suit the PC fashions of the day. Fashions may change.

This is why I get so frustrated by the advocates of gay "marriage" and their twisting of that word.

The latest example is from Anna Qundlen. The link is to Newsweek, though I read her column this morning in the Chicago Sun-Times. Quindlen is a writer of no small talent and she, more than most, should understand the importance of words.

In her column, Quindlen tries to draw a parallel between opponents of gay "marriage" and Southern segregationists whose last-ditch stand against interracial marriage was overcome by the United States Supreme Court in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817 (1967). (Yes, kids, there was a time when Supreme Court opinions could be unanimous, or nearly so; in Loving, Justice Potter Stewart added only a two sentence, one citation concurrence.)

Most of the Court's opinion is taken up in a strict-scrutiny analysis of the Virginia miscegenation statute (miscegenation, Quindlen writes, is "a $10 word for bigotry") under the 14th Amendment. The Court summed up its analysis this way (388 U.S. at 11-12):

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. [Citations omitted.]

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated ‘(d)istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ [Citation.] At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’ Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. * * *

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

But the court also offered a due process basis on which to invalidate the Virginia statute. Quindlen's column quotes a passage from this portion of opinion (388 U.S. at 12), "Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival." But, as a wordsmith of Ms. Quindlen's talent should surely understand, this passage does not aid her argument that gay "marriage" should be deemed a fundamental right.

There is a cultural assumption implicit in the sentence that Quindlen quotes that marriage exists for the procreation of children. It is from marriages that new people come into "existence." Now some may scoff at this, and note that many people come into this world through the efforts of parents who have neglected to marry. At one time, however, this was generally recognized as a severe handicap: Being born 'on the wrong side of the blanket' was an impediment to many careers unless, of course, you were the bastard son of an English King in the Middle Ages... and for at least a time thereafter... in which case you'd be a Duke. (Of course, if that same son had been born as the product of a marriage, he'd be at least a Prince. So even there... some penalty.) Even today, in general, children of unmarried parents fare worse in school and then in life than children from stable, intact nuclear families. It's just that we're no longer supposed to notice these things. I don't know why.

And, similarly, marriage is fundamental to our "survival," because it is from marriages that new generations are supposed to be spawned.

Ms. Quindlen would be among the scoffers, I guess, at what she may consider an antiquated notion, but this is the only fair reading of the sentence that she quotes. This conclusion is reinforced by examining the cases that the Loving court cites for this proposition, about the fundamental nature of the right to marry.

The first case cited by the Loving court here, Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110 (1942), is of particular import. Skinner was a unanimous opinion written by Justice William O. Douglas invalidating an Oklahoma statute that called for the sterilization of habitual criminals. Said Justice Douglas in that case (316 U.S. at 541):

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

The sentence, "Marriage and procreation are fundamental to the very existence and survival of the race," can not be transmogrified into an endorsement of gay "marriage." It necessarily reflects a cultural understanding that the two terms are, in fact, linked.

The other case cited by the Loving court for marriage as a fundamental right was Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723 (1888). Actually, this was a poor choice for a citation to show that marriage is a fundamental right, inasmuch as the case concerned a suit by the children of an abandoned father to enforce, after his death, rights to a portion of property he homesteaded in the Washington Territory after he abandoned the family. The Supreme Court found that the children had no claim because their late mother had no claim, their father having divorced their mother pursuant to an act of the Oregon territorial legislature before the homestead rights were fully vested.

You may find it remarkable that there was a time in this country when marriage was considered so important and fundamental a matter of public policy that its dissolution was impossible without special legislation. Courts were only gradually brought into the divorce business and Maynard may yet, apparently, be cited for the proposition that a legislature retains the power to end a marriage unless that power has been expressly removed from it.

That no notice of Mr. Maynard's intent to divorce his wife was ever given the poor woman, left with her two children and without support in Ohio, was not enough to invalidate the divorce. Said the Court (125 U.S. at 209-210):

The facts mentioned as to the neglect of the husband to send to his wife, whom he left in Ohio, any means for her support or that of her children, in disregard of his promise, shows conduct meriting the strongest reprobation, and, if the facts stated had been brought to the attention of congress, that body might and probably would have annulled the act. Be that as it may, the loose morals and shameless conduct of the husband can have no bearing upon the question of the existence or absence of power in the assembly to pass the act.

But we move further, now, into the realm of history, which I enjoy, and farther away from the PC prose of Ms. Quindlen, which so riled me this morning. To return:

When two men decide to set up housekeeping, forsaking all others, to death do them part, they have not been denied marriage. They each could have chosen to marry a woman; they both have decided to do something else. I will not argue that the relationship between these two hypothetical men is more or less precious to them than a marriage. But it is not a marriage. It can not be a marriage.

Now, you may say that this relationship between our two hypothetical men is morally wrong. You say you cannot abide such behavior because it is repugnant to God's law. I am not as certain as some that I know God's will. I do know that not every practice prohibited by the Old Testament is still prohibited and that not every practice countenanced by the Old Testament is still permitted. But for those of you who know better, I would nevertheless suggest you review Ezekiel, ch. 33, verses 7-9:

You, son of man, I have appointed watchman for the house of Israel; when you hear me say anything, you shall warn them for me. If I tell the wicked man that he shall surely die, and you do not speak out to dissuade the wicked man from his way, he (the wicked man) shall die for his guilt, but I will hold you responsible for his death. But if you warn the wicked man, trying to turn him from his way, and he refuses to turn from his way, he shall die for his guilt, but you shall save yourself.

So speak out, if you must, but do so civilly, please. After all, the burden is on the hearer to conform to God's law; you are not required to be persuasive or even shrill in order to be saved.

In the meantime, I think it is unnecessarily cruel to deny our hypothetical men the comfort of each other in their final illnesses or the opportunity of one to obtain insurance for the other. In short, I would favor permitting civil unions that give some or even all of the legal benefits of marriage to gay couples. But it would still not be marriage. Not because I'm a "hater." But because their relationship, however special, is not a marriage. I know this, too, is not enough for some. But it is as far as we should go.