'Not all couplings are equally important'

Posted: Oct 31, 2006 12:53 PM

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.

"Infertile" couples sometimes manage miraculous births, and even aged lovers model the fusion of opposite genders that represents the very essence of traditional marriage. But if others insist on a separate classification for partnerships that commence when bride and groom are both over 70, then a state legislature ought to retain the right to consider that distinction.

It may be ill-advised to mandate variable treatment of couples based on procreative abilities but it hardly amounts to profound injustice or an example of oppression.

By the same token, there's every logical basis for preferential policies toward opposite-sex marriages — most of which at some point will produce children — and same sex couples — none of which can yield children as a union of the two parties.

Gay advocates may insist that lesbian couples can use sperm donors to conceive children, and gay males can adopt, but those options, which would still place children in either fatherless or motherless households, can't obscure the essential, irreducible contrast between the impact of homosexual and heterosexual eroticism.

When the court refuses to allow the New Jersey legislature even to consider taking that contrast into account, it attempts to outlaw a confrontation with reality.

The house guest mentioned above — from the family of 12 kids — joined us for a wedding ceremony from which we just returned.

More than 300 people celebrated life and love and continuity, singing and dancing and congratulating the bride and groom on their way to their first night together as a married couple.

That wedding night is significant, timeless and holy — not just because this husband and wife chose to live apart until their nuptials, but because their first evening together could indeed produce a baby, and a line of descendants with incalculable consequences.

And what, precisely, is holy and consequential about a gay wedding night?

Two same-sex lovers may be wonderful, loving people, committed to building a new home to benefit the larger community, but the essence of their pairing makes their after-ceremony intimacy less consequential, less worthy of public celebration than a couple in a natural marriage.

Whatever the majority of New Jersey justices may declare, not all couplings are equally important and they don't demand identical support and sanction from governmental authorities.

Most Americans understand our national interest in maintaining a uniquely privileged position for the ideal and norm of male-female matrimony.