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Tuesday, October 31, 2006
Michael Medved :: Townhall.com Columnist
'Not all couplings are equally important'
by Michael Medved
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Most Americans reject the inane idea that all relationships are created equal.

In our personal lives as well as our political positions, we understand and embrace the undeniable, commonsense truth that some intimate associations are more significant, more valuable than others.

That's why there's so little enthusiasm for last week's odd, ill-considered decision by the New Jersey Supreme Court.

On the one hand, the court leaves it to the legislature to determine whether gay couples should receive the same marital designation as traditional male-female partnerships.

"We cannot find that a right to same-sex marriage is so deeply rooted in the tradition, history and conscience of the people of this state that it ranks as a fundamental right," said Justice Barry T. Albin for the 4-3 court majority.

On the other hand, he and his colleagues ordered the legislature to grant "every statutory right and benefit conferred to heterosexual couples" to "committed same-sex couples. … We cannot find a legitimate public need for an unequal legal scheme of benefits and privileges."

In other words, the imperial judiciary graciously allows the people and their elected representatives to reserve the term "marriage" for opposite-sex couples, but the legislature is not permitted to confer any practical benefits — tuition assistance, tax breaks or survivor payments — exclusively to those partnerships that qualify as marriages.

The decision therefore represents a unique frontal assault on the privileged position of marriage in society: The state isn't permitted to treat matrimony differently from other couplings that might be called "civil unions," "domestic partnerships" or "longtime pals."

The judges won't allow New Jersey to do what governments have always done: to establish a hierarchy among human relationships, with special recognition and privileges for those connections that the people deem most useful and consequential.

Admittedly, the old idea of ranking relationships based on their significance and utility goes against the grain of a radically egalitarian age, but does it make sense to say that Britney Spears' notorious first marriage, which lasted all of 54 hours, impacted the world as much as her second marriage, which has already lasted more than two years, and produced two children?

However much one may despise Britney's current hapless husband, Kevin Federline, their relationship counts as more significant than her previous fleeting alliance, and, for the sake of the two children, society has an undeniable interest in keeping the parents together to take responsibility for their offspring.

And speaking of offspring, we just welcomed a house guest who is one of 12 children from the same father and mother. Each of these kids is, as it happens, hardworking, high-achieving and communal-minded, so it's safe to say that the relationship of the two parents behind this extraordinary brood stands as more consequential than a similarly long-term union of a childless couple.

When many nations worry about a population dearth, it's hardly unreasonable for governments to consider privileges for the parents of 12 that wouldn't be open to couples without kids.

It makes unmistakable sense for society to draw distinctions among relationships based upon their long-term impact, and in that sense procreative potential makes a partnership obviously more worthy of privileged consideration.

With this in mind, previous decisions by high courts in Washington, New York and California made reference to the organic connection between marriage and childbearing — an association all but ignored in the New Jersey judgment.

Whenever defenders of traditional male-female marriage note that these relationships can produce progeny while homosexual unions cannot, gay advocates invariably ask about infertile or elderly opposite-sex couples.

If man and woman have no more chance at baby-making than two gay lovers, should they still get the chance to marry?

I would argue they should, for many reasons. Continued...

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About The Author
Michael Medved's daily syndicated radio talk show reaches one of the largest national audiences every weekday between 3 and 6 PM, Eastern Time. Michael Medved is the author of eleven books, including the bestsellers What Really Happened to the Class of '65?, Hollywood vs. America, Right Turns and, most recently, The Ten Big Lies About America.
 
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Disagree on the issue of gay unions
One thing that we should always remember that the courts are among the most methodologically conservative fixtures of American government. They almost epitomize the idea of the Constrained Vision by respecting precident and not going out of their way to change things. In fact, I say the courts are at their best when they do as little as possible to make the laws consistant and effective.

After the Civil War, a Constitutional Amendment was ratified which called for, among other things, "equal protection under the laws" for all American people. While not all relationships may be equal, all *people* are entitled to equal protection under the laws. Yet it took nearly a hundred years after the passage of this Amendment to come to terms with the fact that segregation was inconsistant with that amendment. Early cases, such as Plessy, in fact held that segregation didn't mean unequal protection provided that substantive measures were in place to ensure equal treatment (of course if separate was always unequal, we wouldn't have separate men's and women's restrooms, I suppose).

Given the amount of time that was taken to conclude that even segregation meant unequal protection, it is reasonable to understand that some questions about whether gays are entitled to the same legal protections of their committed relationships that straights are is still an unsettled question. Yet the 14th Amendment does not limit itself to race. In fact it makes no boundaries around the issue of who this is intended to protect.

Personally, I am opposed to hate crime legislation (generally) because I don't think a murder or any other crime is any more or less a crime based on motive. And I think that antidiscrimination laws while sometimes necessary ought to be kept to a minimum. And while I understand the uncertainty that many gays feel and why they look to these measures for refuge, I must disagree that they are appropriate.

But legislating additional protections for married couples while denying those legal protections to gay couples is different and is tantamount to legislating discrimination against them. While I may be straight, married, and have a kid, I have to think about the situation of a family friend who is a lesbian with two kids. If she is in the hospital, can her partner automatically come to visit (bringing her kids)? If she gets hit by a car, can her partner automatically take custody? And if not, should losing one parent automatically deprive the kids of both if a grandparent wants to interfere? Why would we want to undermine gay families that choose to have or adopt children in this way? In refusing to grant the same protections, not only do we deny these individuals access to equal protection under the laws but we deny that protection to their kids too. And that strikes me not only as unfair but also as downright Unamerican.

Lydia 1:06 PM
Well said, Maam!

einhverfr, there are methods in the law which allow one to alleviate these problems, such as a living will, power of attorney, contracts and probably others that if used properly would prevent these problems, it is just that SSCs do not desire to spend the time and expense to do this.
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