Same-Sex "Marriage": Should America Allow "Gay Rights" Activists to Cross The Last Cultural Frontier?

Anton N. Marco

Copyright 1996-2006, Christian Leadership Ministries


Part VI:
Reviewing Four Gay Activist Arguments Favoring Same-Sex "Marriage"

Argument 1: Gays, lesbians and bisexuals are being "discriminated against" in being denied the ability to legally marry; this "discrimination" should be remedied by immediate same-sex "marriage" recognition.

As mentioned before, the first and foremost argument gay activists advance in favor of same-sex "marriage" is this: Gays, lesbians and bisexuals are being "discriminated against" in being denied the ability to legally marry; this "discrimination" should be remedied by immediate same-sex "marriage" recognition.

Only Americans reasonably conversant with "minority" Civil Rights law are familiar with the intimate, unseverable connection between this branch of law, protected and suspect minority class status and the ability to make claims of discrimination.

In essence, to make a claim of discrimination, one must be a member of a protected or suspect minority class, or a member demonstrably practicing (not merely "believing") a recognized religious creed. In saying gays are being "discriminated against," gay activists are already claiming to be "just like" a protected or suspect minority class, in most cases without having first proved they qualify for the kind of status recognition that permits making such claims.

Since gay activists cannot make a valid claim for "sexual orientation" to be recognized as a suspect minority class, and because "sexual orientation" is certainly no religious creed, gays cannot properly make "claims of discrimination" based solely on their self-alleged "sexual orientations." However, neither does merely not being able to make "claims of discrimination" prove that one is being "discriminated against."

The Civil Rights Act of 1964 and other state and local Civil Rights statutes simply do not provide extraordinary protection for every conceivable group that might at some time or other be looked down upon by some person or other group.

Aside from the legal but unusual "sexual orientations" (other than homosexuality) we have already discussed, to our knowledge no provision of Civil Rights law anywhere protects wish-to-be bubble gum chewers, nose-pickers, finger-poppers, people with bad breath, people with dandruff, people with shrill voices, or any other of an almost infinite number of self-alleged "imaginers" of habits many people find annoying.

Are we to say that the Civil Rights laws passed thus far purposely and with malice aforethought "discriminate against" the above groups simply because the Civil Rights laws don't mention them? Laws designed to specially protect the truly disadvantaged and politically powerless must be based on criteria of some sort. "Sexual orientation" simply does not meet the established criteria. It is not a racial, color or even religious category. It is not even, as gay activists define it, a behavioral category.

If gay activists are not part of a suspect minority class, and are no religious creed, they have no "right to claim discrimination," nor, in Civil Rights terms, can they be "discriminated against." Therefore, they do not have to be treated as if they were a suspect minority class or religion � or anything other than people who merely claim to experience a certain sexual proclivity to an intense degree.

Are Gays Being Unjustly Denied Benefits Available to the "Heterosexually Married"?

An understanding of "minority" Civil Rights law should be sufficient to close the "discrimination" issue, but gay activists press further by insisting they are being denied benefits heterosexual married couples now enjoy. (They fail to mention that most of the benefits they feel they are lacking are also equally unavailable to unmarried heterosexual couples.)

Is gay activists' claim in this regard true? For one thing, the argument itself smacks of circular reasoning: It presumes a priori that gays, lesbians and bisexuals deserve these benefits and are being willfully and unjustly denied them.

We have already dealt with the question of qualification. We also learn from numerous avowedly gay/lesbian sources that gay activists are aware of their ability to avail themselves (as may cohabiting but unmarried heterosexual couples) of a host of substitutes for traditional marriage "benefits" now available through tort law. Gay activist Eric Marcus discusses several under the heading...

Legal Options for Formalizing your Relationship

You can... approximate or duplicate many of the rights of a marriage license with several of the documents discussed in this section, including Durable Power of Attorney, Designation of Preference, Will, and Living Together Contract.{238}

In subsequent pages, Marcus also discusses living wills and even the possibility of adopting one's homosexual lover.

Activist Paula L. Ettelbrick (quoted supra) also reports, in a Lesbians at Midlife article entitled "Legal Protections for Lesbians," that lesbians and gays have many legal options that can almost fully compensate for the lack of a marriage privilege.

She points out that a last will and testament can distribute property, appoint a guardian, provide for pets, provide for funeral and burial, and also appoint an executor. She points to joint property agreements, cohabitation agreements, conservatorships, durable powers of attorney, living wills, and more.

One of Colorado's chief avowedly gay same-sex "marriage" advocate, a Boulder activist named Rick Cendo, feels that he already has, in effect, "a working same-sex marriage. [Both Cendo and his `life partner'] has power of attorney over the other, which allows one to make medical and other major decisions should the other become physically incapacitated, and they can sign off on one another's checking account."{239}

As with tort laws that protect all citizens, gays included, from wrongful termination, gay activists would rather have the general public think such laws don't exist. Tort laws don't require "claiming discrimination" to be effective, and "claiming discrimination" and suing others with taxpayers� money are what gay activists really want to do � with government assistance.

In the final analysis, to claim that opponents of "gay rights" or same-sex marriage recognition are "discriminating against gays and lesbians" is begging the question: assuming "sexual orientation" already possesses universally accepted suspect status, which, as we have seen, is not the case.

Criticism of, or legal action contrary to the whims of affluent, powerful special interest groups which do not possess or qualify for suspect status does not constitute "discrimination." Saying that wealthy young Caucasian corporation presidents as a class don't qualify for suspect minority status doesn't "discriminate" against the young, white and well-heeled. It simply states a fact. No amount of non-libelous or slanderous verbal "millionaire-bashing" will compel government to declare Caucasian plutocrats a suspect class. They simply don't qualify for that status, nor do gay activists or other wealthy, powerful special interest groups.

When speaking of "marriage benefits," perhaps a reminder of activist Robert Bray's brash boast � "Gay greenbacks are very powerful, and the gay and lesbian community is a virtual motherlode of untapped sales" � is appropriate here. Gay activists have ample resources to secure virtually all the benefits they might desire � without tapping the public till or using government as a billy club to punish their opponents.

Refusing to grant special protected class status (suspect or marital) to gay activists doesn't deny gay people a single fundamental Constitutional right. Suspect and marital status bestow privileges additional to the U.S. Constitution's fundamental protections. Again, Caucasian males under age 40 with no disabilities or firm ethnic identities are not beneficiaries of suspect minority class status; nevertheless, it cannot be said that they do not possess all fundamental Constitutional rights because they do not enjoy special class status.

In fact, it is gay activists who seem most eager to practice reverse discrimination against other Americans, by using suspect class or marital status leverage to force society to subsidize and advance "gay rights" and to institutionalize their own political goals, using taxpayers� money and government coercion to advance their interests.

No, opposing gay activist special interests isn't "discriminating against gays," it's preserving rational and just Civil Rights and marriage policies: It's simply saying "No special status and no undeserved benefits" to a powerful special interest group which already shares the fundamental rights of American citizenship and enjoys far more advantages than most American citizens.

Argument 2: Marriage is a `basic human right,' and choice of marriage partners should in no way be regulated by government.

Gay activists argue that "marriage is a `basic human right,' and choice of marriage partners should in no way be regulated by government." Therefore, same-sex couples should be allowed to legally marry.

One will search the Constitution of the United States in vain for a "fundamental right to marry," or even for a mention of marriage. It is true that numerous U.S. Supreme Court decisions have referred to the extraordinary significance of marriage; the High Court has called marriage "one of the basic civil rights of man" (see Skinner vs. Oklahoma, 1942; Zablocki vs. Redhail, etc.).

But perhaps David Shapiro, managing editor of The Honolulu Star-Bulletin, has answered this argument as pointedly as is necessary:

There's no civil right to marry whomever you wish. Gay and lesbian couples aren't the only ones who can't get marriage licenses. You can't get a license to marry your brother or sister. You can't get a license to marry more than one person at a time. You can't get a license to marry a 9-year-old child or your horse [or anything vegetable or mineral, for that matter].

Every man and woman in Hawaii has the exact same right to get married. It just has to be to an individual of the opposite sex who is of age, is not a close relative and is human.

If men and women are treated the same, there's no sex discrimination unless you hold that gay men and lesbian women are the third and fourth genders. There's a lot of legal ground to plow between here and there.{240}

Far less likely will one be to discover in the Constitution any "right" to marry whomever one wishes based on particular self-alleged varieties of sexual fantasy alone.

Republican Presidential candidate Alan Keyes has said, "...[I]f we allow people to redefine marriage as an institution in such a way as to make it consistent with life sensuousness instead of responsibility, then I think we will have destroyed not only this important institution, but all the things in society that depend on it."{241}

To oppose the aims of affluent gay activist special interests may violate their wishes and deprive them of undeserved status and benefits, including marital; it does not violate their fundamental rights.

Argument 3: Civil and religious marriage will remain separate institutions if same-sex "marriages" are legally recognized.

Gay activists' third argument asserts that civil and religious marriage will remain separate institutions if same-sex "marriages" are legally recognized. Our earlier analysis of "religious exceptions" dissipates this smoke-screen, designed to pacify religious people and organizations.

If "sexual orientation" gains suspect class minority status and gay activists gain sufficient political leverage, America can count on it: Gay activists will show up at religious organizations' doors with lawyers in tow, followed by process servers with subpoenas to press "equal protection" lawsuits against organizations that refuse to recognize and enact same-sex "marriages."

Argument 4: Preventing same-sex 'marriages' denies gay 'families' the benefits, protections and responsibilities of civil marriage.

Same-sex couples can't legally marry anywhere in the U.S., no matter how much they feel they `need' to or how much their `families' need the benefits, protections and responsibilities of civil marriage," say gay activists; therefore, this societal wrong should be remedied immediately.

Like gay activists' second argument, this one also presumes that it is perfectly right and just for gay activists to demand marriage recognition for same-sex unions. We think we have shown that this demand is neither right nor just, and is no more appropriate than for self-avowed consensual sado-masochist fantasizers, or people who claim to crave indulgence in hair, foot or underwear fetishes to make, based solely on their self-alleged sexual fantasy proclivities.

Gay Activists' Unspoken "Fifth Argument"

Stripped of all their pseudo-merit, gay activists' arguments in support of same-sex "marriage" boil down to one unspoken "fifth argument," which happens to be a classic non-sequitur known as argumentum ad misericordiam, or the "argument to pity." Applied to "gay rights" issues, it goes something like this:

Gay people have suffered emotional torment because society does not smile on their "sexual orientations." Gay activists complain loudly about this "oppression." Therefore, society "owes" "sexual orientation" suspect class minority status, marital status and all accompanying benefits, to redress injuries done to gays and to make them feel better.

Or, as one observer has put gay activists' position more colloquially, "We feel bad, we shout loud, give us `perks'!"

Of course, loudly expressed injured feelings per se offer no compelling reason to bestow favors on anyone. If they did, every child's tantrum would be immediately rewarded. Doubtless many imprisoned criminals "feel bad" because they are behind bars. This fact alone does not entitle them to automatic release. Nor do gay activists' vociferously shared hurt feelings alone entitle them to get away with perpetrating what amounts to massive Civil Rights fraud.

Gay Activist Media Strategies Will Be Based Primarily On "Argument #5"

Knowing the virtual intellectual and public policy bankruptcy of their position (Kirk and Madsen admit in After the Ball that their arguments amount to no more than sheer, if shrewd, propaganda), gay activists' primary media strategy supporting same-sex "marriage" will be an expensive lathering-on of sympathy-mongering, especially for gay couples who will tell tearful tales of having been "cruelly denied the right to unite our deep love in the bonds of marriage."

Typically, gay activists have calculated their moves with a combination of sheer bathos and cynicism designed to appeal to unthinking public emotion, fueled by eager hyper-liberal media coverage (a recent national survey of print, television and radio journalists and editors revealed that some 40% claim to be lesbian or gay).

To Have and to Hold, gay activists� operative guide to same-sex "marriage" promotion, gives national gay activists leaders' "marching orders." Kicking off statewide campaigns favoring same-sex "marriage," individuals and groups in local communities and statewide will be urged to first sign the gay activist-written "Marriage Resolution" (supra, page 2). To Have and to Hold then says:

The resolution has been drafted by the Lambda Legal Defense and Education Fund Marriage Project. Lobby any organization in which you belong to sign on to the Marriage Resolution. By endorsing the Resolution you and your group are telling judges, politicians and others that it is time to end discrimination against lesbians, gay men and bisexuals throughout the US. Once your organization has endorsed this resolution, let Lambda know immediately by mail, phone, fax or email, then circulate it to others. Set a goal for the number of additional sign-ons your group can gather, i.e., 10 new groups within two months. In this way, your efforts will snowball....{242}

To Have and to Hold details a "Media Plan," in part as follows:

Good examples of some of these strategies in action may be found in a tabloid entitled "Someone You Know," published in Colorado Springs, Colorado, by a "gay rights"-promoting organization known as Ground Zero. Widely distributed in stores, libraries and other public outlets as a paid insert in a local "cultural" newspaper, "Someone You Know" carries the standard gay activist messages:

We chose the title Someone You Know because every story and every issue discussed on these pages involves or pertains to gays or lesbians. Whether he or she has chosen to come out to you or not, you do know someone who is gay. ["10%/we are everywhere" myth]

Since we are born into the spectrum of humanity ["innateness" thesis] -- every country, every culture, every race, every faith, every economic stature -- gays are not the wedge between people, as some would have you believe, but a link that can bridge societies together. We are your neighbors, family members, co-workers and friends. ["Just like everyone else" theme] We are your mechanics, teachers, health care professionals, law officers, construction workers, military personnel, waiters, executives, clerks. We are an integral part of society.

Unfortunately, much of the information concerning gays and lesbians provided to you by the media is written by non-gays and those who oppose us for a variety of reasons. In Someone You Know, we want to give a new perspective, our perspective, on who we are and how we live. Essentially, we are just like you [Kirk and Pill, op. cit., Guide: "Straight viewers must be able to identify with gays as victims. Mr. and Mrs. public must be given no extra excuses to say `they are not like us'... Our campaign should not demand support for homosexual practices, but should instead take anti-discrimination as its theme."] We live, we love, we have families, we revel in the joys of life, great and small, and we strive to be the best people and the best citizens we can be. ["We behave just like everyone else" theme.]

... On these pages throughout the next year, we will put faces on gays and lesbians, portraying us as we truly are. We will explore issues of importance and interest to lesbians and gays, but that also touch your lives as well.{244}

A sympathic "poster couple" cover story "portraits" a lesbian "family" consisting of the local Metropolitan Community Church (a predominantly gay/lesbian "denomination") pastor, her "life partner" and their infant son. Other features include a "thumbnail" sketch of an elderly widow who is delighted to be going to Disneyland with her gay son's "`4-year-old daughter and her two lesbian mothers.'"{245}

Gay Activists Expect -- And Are Battling -- Opposition

Large sections of To Have and to Hold are devoted to strategies to deal with expected -- and already active -- opposition to gay activists' national campaign for same-sex "marriage." Opponents are concerned about potential developments like the following, should Hawaii, or some other State, end up granting same-sex "marriage" recognition:

Legal scholars like [Richard] Duncan [a constitutional law professor at the University of Nebraska] and Lynn Wardle, a professor of both constitutional and family law at Brigham Young University, point to the legal confusion that could result if just one state sanctions same-sex marriage. Imagine a scenario, says Duncan, wherein a state grants two homosexuals a marriage license.

"Let's say `John' marries `George,'" Duncan [says]. "Subsequently, John decides to leave this... relationship with George. He doesn't get a divorce, he just leaves the homosexual relationship and moves to a state which has declared homosexual marriages null and void. As far as state #2 is concerned, John is not married."

What happens, Duncan queries further, if John meets and marries "Sally"? Under the laws of state #2, John and Sally are legally husband and wife. And what if John and Sally have children and move to a third state, a state that recognizes all out-of-state marriages, homosexual or heterosexual?

"Is John a bigamist?" Duncan asks. "Is the same-sex marriage valid, or is the heterosexual marriage valid? Are [John's] children legitimate? If he dies, does his "husband" inherit his property or does his wife? There are no answers to these questions."

Rather than wait for the Hawaii decision -- appeals from either side could drag out the case for a couple of years -- many states are moving to put policies into place that would insulate them from having to recognize same-sex marriages. Pro-family legal experts say the most effective legislation would not only define traditional marriage, but announce that same-sex marriages performed elsewhere are contrary to state policy.{246}

Steve Fitschen, executive director of the National Legal Foundation, explained these legislative actions in light of the U.S. Constitution's Full Faith and Credit clause:

"Under present case law, most courts recognize a strong `public policy exception' to the application of the Full Faith and Credit clause. There are numerous ways in which such an exception might be established, depending upon state constitutions and applicable statutes. In some states, for instance, it might be established through a legislative resolution, or even by a gubernatorial decree.{247}

In other words, even if Hawaii or some other State(s) endorse(s) same-sex "marriages," other States which have officially expressed strong public policy reservations to Hawaii's action may have grounds to refuse recognition of Hawaii-enacted same-sex unions:

"If the other 49 states would do that, then the problem would be limited to Hawaii," [legal scholar Richard] Duncan [says].

Utah's legislature was the first to pass such a law in March 1995. South Dakota -- on its second attempt -- passed a similar bill last February. Legislators in approximately 20 other states have either introduced legislation or planned to do so in 1996. [The State of Maine succeeded in imposing a ban on same-sex "marriage" by statewide citizen initiative during Spring, 1997.]

... To educate the American public about the implications of same-sex marriage, several pro-family activists have launched an organization called the National Campaign to Protect Marriage. One of the group's goals is to encourage state lawmakers to enact at least one of the following public-policy measures.

Same-sex marriage has already become an issue in the 1996 presidential race.... [F]ederal legislation, tentatively entitled the "Defense of Marriage Act" -- is also in the works.{248}

This legislation, which has subsequently been passed by Congress and signed into law by President Bill Clinton, says in essence that every State will be allowed to decide the same-sex "marriage" issue for itself.

These public policy moves give some hope to same-sex "marriage" opponents. However, Steve Fitschen warns that in a number of States marriage, "right to privacy" laws and "equal rights" constitutional amendments may make certain "public policy exceptions" vulnerable to "equal protection" challenges. Gay activists' aim is that, wherever it's possible to stop them, "public policy exception" measures never even approach passage. Activists have devised several strategies to try to achieve that outcome:

Fighting the Backlash: Tips from the Field

Anticipating and Battling Legislative Attacks against Same-Gender Marriage

By anticipating legislative attacks on our right to marry, we can ensure that our communities are well prepared to fight to challenge state interference. Experienced activists suggest you:

Can America Stop Same-Sex "Marriage" Recognition?

One thing is clear: America can expect a "battle royal" to rage over the same-sex "marriage" issue in coming months and years, at every level of government and the courts. Yoked to political spending in the national top tenth-of-one-percent range and strong media cooperation, gay activists' same-sex "marriage" message will resound forcefully across the nation.

From gay activists' standpoint: "`The good news is, we have done more to frame the public debate on this than on anything else before,' declared Evan Wolfson of the Lambda Legal Defense and Education Fund in an interview with The Advocate... `The bad news is, it will be a state-by-state battle for years to come, and we're not as prepared as we should be.'"{252}

The reason gay activists are not as "prepared" as they would like is, again, that they had hoped not to launch their same-sex "marriage" campaign until they had first secured Federal "gay rights"-suspect class protections. They have been unable to do so largely because of public opposition and use by "gay rights" opponents of the anti-"sexual orientation"-"minority"-status arguments, enumerated (at greater length elsewhere{253}) in this paper.

Again, despite several years of gay activist propaganda pounding, public opposition to same-sex "marriage" grew steadily in Hawaii, from percentages in the mid-50s to a figure of nearly 75% pollsters report just before the �98 November election. As reported here earlier, the final Hawaii vote against same-sex "marriage" neared 78%-22%. National Legal Foundation executive director Steve Fitschen...

... suggests that the debate over homosexual marriage is following a course similar to that taken by the debate over homosexuals in the military. "When Bill Clinton came into office," Fitschen recalls, "he assured his homosexual supporters that the military ban would be promptly lifted by Executive Order. That didn't happen, because of the intensity of public opposition."{254}

Not only is the public nationwide overwhelmingly opposed to the idea of same-sex "marriage,"{255} the national leadership of "gay rights" issues itself is deeply divided over the wisdom of pursuing a course toward the "last frontier" of same-sex "marriage" recognition at this time.

Indeed, the blame for the attempted perpetration of "gay rights" fraud ought not to be laid at the feet of all gay, lesbian and bisexual individuals. It is the view of Americans for Reason and Justice that there is nothing especially "gay" about "gay rights"; "gay rights" is primarily the initiative of power-and-influence-hungry special interests intent on imposing their own self-serving social and political agendas on American society, using suspect/protected "minority" class status civil rights policy as its "battering ram," fronted by taxpayer-funded lawsuits against all "gay rights" opposition.

Accompanied by sound, relevant, just and reasonable argumentation, with effective leadership, public opposition to the fraudulent public policies known as "gay rights" and same-sex "marriage" may yet prevail.

We trust that informed Americans will act quickly and effectively to prevent gay activist special interests from achieving their designs for our nation, while sufficient time yet remains.


{238}Op. cit., The Male Couple's Guide to Living Together, p. 161 ff.

{239}"Same-sex couples register commitment," Colorado Springs Gazette Telegraph, July 2, 1996, p. B-2.

{240}Editorial, December 16, 1995, enmphasis added.

{241}Statement to press, January 27, 1996, quoted in SPHA Bulletin, January/February 1996, p. 6.

{242}Op. cit., p. 17.

{243}Ibid. p. 16.

{244}"Welcome," in Someone You Know, gay activist-written tabloid insert, Vol. 1, No. 1, January 17, 1996, pp. 1, 2.

{245}Ibid. p. 3.

{246}"What's wrong with this picture?" op. cit., Citizen magazine, pp. 2, 3.

{247}Op. cit., The New American, p. 8.

{248}Op. cit., Citizen magazine, p. 3.

{249}Op. cit., To Have and to Hold, pp. 8, 9, 10.

{250}See op. cit., Special Class Protections for Self-Alleged Gays, pp. 77-79, for documentation of "gay boycott" failure in Colorado.

{251}Ibid. pp. 9, 10.

{252}Quoted in op. cit., The New American, p. 7.

{253}See op. cit., Special Class Protections for Self-Alleged Gays, available at [CLM's website] and [from CLM at appropriate address].

{254}Quoted in op. cit., The New American, p. 8.

{255}According to an Associated Press poll, dated June 14-18, 1996, 3% margin of error, 57% of Americans oppose same-sex "marriage," 30% approve and 13% have no opinion on the subject.

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