Michael Gaynor
Lambda legal: Please say marriage for "same sex partners," NOT "same sex marriage"
By Michael Gaynor
March 9, 2011

History shows that some of the legal incidents of marriage have changed, not the fundamental nature of marriage.

On March 8, 2011, Touro Law Center presented a continuing legal education program titled "The Social Evolution of Marriage: What's Next for Same Sex Marriage in New York?"

For attorneys who need continuing legal education credits, the program was a bargain: 3 credits and dinner for $25.

For those who wanted a debate on the constitutionality of same sex marriage, it was a disappointment: no opponent of "same sex marriage" was included as a panelist.

I sensed that I had entered an extreme political correctness zone when I perused a copy of the February 11, 2011 issue of Point of View: News & Opinions From the African Diapora available on a table at the entrance to the auditorium. It appears that Angelina Jolie will be playing Cleopatra, and Point of View is unhappy about it. At the top of the front page appears: "Commentary: Another White Cleopatra?" The picture of the front page is the Sphinx and the question asked is, "If we agree that ancient cultures created art in their own image, what should we conclude from the thick lips in this photo of the Sphinx? The commentator concluded that white women should not play Cleopatra, not even Angelina. "Honestly, I don't care how full Angelina Jolie's lips are, how many African children she adopts, or how bronzed her skin will become for the film, I firmly believe this role should have gone to a Black woman." The commentator wondered whether Vanessa Williams and Halle Berry were "unavailable for auditions" and opined that "the role should be given to a younger actress." (Angelina was born in 1975, Vanessa in 1963, Halle in 1966.)

The guest speakers included Columbia law professor Ariela Dubler, speaking on the history of marriage; Lambda Legal senior counsel and director of constitutional litigation Susan Sommmer, speaking on cases involving same-sex couples seeking the right to marry; attorney Ralph Randazzo, speaking on the rights in New York of same-sex couples who have registered as domestic partners outside New York and the rights of unregistered domestic partners; and attorney Joseph Milizio, speaking on legislative attempts to legalize same sex marriage in New York.

Professor Dobler made a "hope and change" case for legalizing same sex marriage in New York. She hopes for this change and argues that it should be made because marriage has changed over time and change is the continuity of marriage. She assures that prior changes have not brought an end to marriage.

The big changes involving marriage since the United States became a nation (and the proponents of same sex marriage prefer to disregard the history of marriage over 5,000 years, as though the United States invented instead of continued it) are the Married Women's Property Acts, the Married Women's Earning Statutes, the move away from coverture, the abolition of common law marriage and divorce laws.

Citing these changes, Professor Dubler declared that the legal meaning of marriage changes and marriages goes on, for better or worse, depending upon a person's ideology, and insisted that allowing same-sex partners to marry is not only appropriate, but would change would maintain the appropriate continuity of marriage — change.

But none of the changes Professor Dubler cited changed the fundamental nature of marriage as a union of one man and one woman. Instead, they involved economic matters and the requirements for entering into and ending a marriage.

Proponents of same-sex marriage don't like that phrase, because there is no history of same-sex marriage. So they say that history shows that marriage and non-marriage have always coexisted, some couples who wanted the rights and responsibilities of marriage have been excluded, the outlawing of interracial marriage was declared unconstitutional and same-sex couples cannot constitutionally be excluded from marriage because there is no rational basis for it (such as procreation).

The last question asked — whether a constitutional right to polygamy would follow from a constitutional right to same sex marriage — elicited an answer from Ms. Sommer to the effect that it need not necessarily, but it is a debate worth having. She described Reynolds v. United States, the United States Supreme Court case that upheld outlawing polygamy, as a flawed decision and an example of persecution of Mormons.

It all called to mind Abraham Lincoln's line — "How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg."

History shows that some of the legal incidents of marriage have changed, not the fundamental nature of marriage.

© Michael Gaynor


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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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