The proposed legalization of same-sex marriages will be one of the most significant issues to confront contemporary American family law.
Presently, it is one of the most vigorously advocated reforms in law reviews, one of the most explosive political questions that Nevada politicians inevitably will face, and one of the most provocative issues emerging before American courts. The potential consequences, positive or negative, for children, parents, same-sex couples, families, social structure, public health and the status of women, will be profound.
Given the magnitude of this issue, the value of comprehensive debate of the reasons for and against legalizing same sex marriage should be obvious.
In 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA). Assuming for the moment that it is constitutionally sound (it is debatable whether or not it can pass a Fourteenth Amendment analysis), the act allows that no state is obligated to recognize same-sex marriages solemnized in other states and that for the first time the federal government would not accept state determinations of who was married for federal purposes such as immigration, Social Security, tax, Medicare, family leave and determination of pensions for federal workers. At least 30 states have taken advantage of DOMA and have enacted their own protection of marriage laws.
In light of the recent Vermont Supreme Court Decision, which ruled that same sex couples must be granted the full benefits of marriage under the provisions of the Vermont State Constitution, members of an organization such as the Coalition for the Protection of Marriage fear that without amending the state constitution to prohibit same-sex marriage, some Nevada residents would travel to Vermont, marry and return home to Nevada and demand recognition of their same-sex marriage.
The proposed amendment to the Nevada Constitution is closely modeled after California's Proposition 22 ballot initiative and provides for adding a Section 21 to Article I of the Nevada State Constitution to read as follows: "Only a marriage between a male and female person shall be recognized and given effect in this state."
Using DOMA as a legal template, it appears that this type of legislation could be passed in the state of Nevada and would result in a rejection, prohibition of, and non-recognition of same-sex marriage. Apparently, DOMA has not been challenged at the national level, and no doubt, this is where it will be decided.
As a conservative, I oppose gay marriages because I simply think that it will be unhealthy and unwise for our country to endorse such relationships and would create another "protected class." However, in cases where the issue of public policy vs. individual rights are balanced against each other, under liberal and conservative Supreme Courts, the individual generally wins if the state cannot prove a "compelling interest" sufficient enough to discriminate against the individual. Such was the case when laws prohibiting interracial marriages were struck down.
My fellow conservatives should be very careful on how they present this issue. I fully understand and agree with their intellectual and rational arguments on this issue, as it applies to public policy concerns measured against cultural and traditional reasons for family unity and structure. However, if their only argument is that gay marriages will destroy the institution of marriage, they will lose!
In this country, we allow child molesters, rapists, pornographers, murderers, wife beaters, atheists and sex perverts to marry. In other words, if we look at our cultural landscape, heterosexuals have done enough damage to the institution of marriage. The high rate of divorce in the state of Nevada alone should be ample evidence that the sanctity of marriage is taken lightly in our society.
Additionally, it would be extremely foolish and unwise if they attack the issue using a collateral argument of "family values." After Newt Gingrich has been exposed for carrying on an affair while he was Speaker of the House, along with the indiscretions of congressional members, Bob Livingstone, Dan Burton and Helen Chenoweth, all Republicans who ran on "family values" platforms, the term "family values" will be treated not only as a joke but as the highest form of hypocrisy.
This will be a hard and long fight. I wish my conservative colleagues well.
Karl Neathammer is a former lay judge who writes occasionally for the Nevada Appeal.