Bismarck Tribune - North Dakota News - Discrimination claims flawed

Discrimination claims flawed

Jul 08, 2006 - 02:10:10 CDT

By GERALD GLASER
Bismarck

Homosexuals complain laws that only allow marriage between a male and female are unconstitutional. They claim such laws discriminate against them, deny them equal protection of the law and make them second-class citizens. Such claims are fatally flawed. Homosexuals, both male and female, can and do marry. They can’t, however, marry their own gender. But that is also true of “straights,” both male and female. There is no gender discrimination here. Every person is treated equally, whether male or female, homosexual or heterosexual.

Confusion arises when we fail to focus on the fact that such marriage laws are not about sexual orientation. They are about procreation. Persons of the same sex cannot procreate. They can, however, engage in other kinds of sexual activity and legally do so just as do straights, and a formal relationship called marriage is not necessary to do so for either heterosexuals or homosexuals. Claims of gender discrimination are nonexistent in this context.

But, the argument goes, if homosexuals who live together cannot marry, they are denied the benefits of tax laws, lower health insurance premiums and so forth. This makes them “second-class citizens.” Again, however, this argument ignores the fact that all males who live together and all females who live together, heterosexual or homosexual, are treated equally. No discrimination or equal protection issues here.

Well then, how about creating “civil union” laws to give homosexuals who “marry” the same rights and benefits as married couples? Notice, however, this argument no longer involves a complaint by homosexuals that current marriage laws are unconstitutional. Instead, they propose that homosexuals living together be granted a status that gives them the same rights and benefits as married couples. But what about heterosexuals who live together, such as father and son, two brothers, mother and daughter, sisters and so forth, who are not homosexual? The only difference among these kinds of “partners” is that homosexuals engage in sexual activity vis-a-vis each other, and heterosexuals do not. Such a difference does not provide a rational basis for the government or anyone else to provide one group a legal status withheld from the other. On the contrary, such a distinction would clearly be discriminatory and deny heterosexuals equal protection of law. Heterosexuals may tolerate homosexuality, but they are unlikely to support any legal process that is designed to promote it.

(Glaser is a retired district court judge. — Editor)

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Comments

michael wrote on Jul 11, 2006 2:54 AM:

" Never fly in North Dakota. They can always move to a more accepting state though. "

Freedom of Religion wrote on Jul 9, 2006 12:00 AM:

" I meant to say religion can be used as a means to control people. I just don't want people to misunderstand and think that all religion is controling people. Religion is a good thing to have what ever form you chose to use. When politicians use it to control people it is wrong. "

homer wrote on Jul 8, 2006 1:25 PM:

" The author’s analysis of this issue is so flawed that every point needs to be addressed but this is not the time or place for doing that. In a nutshell, the government grants a license to marry individuals of different genders. It denies granting that license if the persons are of the same gender, just as it used to deny the license if they were of different races. So to say that there is no gender discrimination involved here is the same as saying there was no racial discrimination involved because both blacks and whites could still marry, just not someone from the other race. The U.S. Supreme Court obviously thought differently and struck that notion down forty years ago. The most bizarre argument advanced by the author is that marriage laws “are about procreation.” Therefore, it follows that in getting a marriage license, the applicants must be able to procreate. So if the couple is too old or if one is sterile (you would obviously need testing here if this was the criteria for getting a license), the county couldn’t grant them a license. I say go for it and lets have this requirement for getting a license. It won’t by itself keep two non-sterile women from getting a license, unless artificial insemination is also made illegal. It will however, prove the absurdity of this argument. One thing I would like an answer to is do counties have a limited number of marriage licenses that can be granted each year, because if they don't, how does granting gays these licenses affect any straight people who want to get married. Sorry Bill and Sally but the gays used up all the licenses we had available to issue and now you can't get one. . . too funny. "

Protect Marriage wrote on Jul 8, 2006 1:22 PM:

" The author makes some very excellent points in this article, many of which have not ever come up before. He does an very good job of looking beyond "the now" in order to see what kind of can of worms this would open up to allow gay marriage or civil unions. Homosexual behavior does not and should not be rewarded. It is allowed to be pursued under the law we all live by but that does not make it something we should adjust all our laws to accomodate. I am interested to know if the author is in favor of a marriage ammendment or not. By his article, it would appear that he does not seem to think it is necessary. The problem is that there are many ohters out there interpreting laws and discrimination without as much thought into the "can of worms". Therefore, I would think an ammendment is necessary to provide a clear interpretation to all. "

Tiffany Washington wrote on Jul 8, 2006 10:48 AM:

" Since this article focuses solely on faulty arguements, I would like to point out a few that I saw in yours... "The only difference among these kinds of “partners” is that homosexuals engage in sexual activity vis-a-vis each other..." My best friend's parents have been married for 30 years, they have one child and have had separate rooms for 20 years. I doubt that they have sex with one another. Yet, they are legally married. The sole purpose or difference between partnered relationships is not primarily sex. My spouse and I not only have sex, but we make decisions together about money, children, vacations, pets. When I lived with my parents, we did not make these decisions together. When I lived with roommates we did not make decisions in the same way, either. My roommate did not quit her job to stay home and care for my child as a spouse might. It is a faulty argument to assume that all same sex "partners" are denied the rights of marriage, because the relationships themselves are not interchangable. Roommates for example enter a contract of sorts when they live together but do not need the protection of the law for children or health benefits because they are not partners in the same way a couple is (straight or gay). Additionally, if the argument is that marriage should be for putpose of procreation, then what about the couples who do not have children (straight or gay). Is their marriage less significant? Should their marriage be denied? Should they have no shared rights to the other's benefits, finances, home? Gay couples can inseminate and adopt in the same way straight couples who are unable to procreate, should we prevent insemination and adoption for all couples? Should individual biological limitations deny someone's right to a commited partnership with someone they love? The funadmental flaw in your argument is that you view all same sex relationships in the same vein and do not fully understand the nature of a homosexual relationship and perhaps a straight marriage. "

flaws in your theory wrote on Jul 8, 2006 10:01 AM:

" Marriage may be based on procreation, but procreation is not mandatory. There are many people who are unable to have children and many people who get married later in life who can no longer have children. Should we not allow these marriages either? The civil union is an alternative to marriage for homosexuals not for relatives. Why would siblings want to be designated as a "married" couple? It also would not make sense for people who are roommates to have a civil union. The civil union, like marriage, would be a display of comittment between two individuals who want to share their lives together. Like marriage, it would be a contract between two individuals to remain faithful to each other. By the same token, the civil union should also have the same mechanism of divorce as marriage does. "

dante wrote on Jul 8, 2006 9:18 AM:

" good one judge. such logic. dont you have a pie eating contest to preside over? "

North Dakota Resident wrote on Jul 8, 2006 3:41 AM:

" I feel this is a poor argument in my opinion. If these people love each other and they want to have a marraige with each other just like heterosexuals do, why make such a big issue out of it. When two heterosexuals fall in love they want to make a committment and be joined by marraige vows. Why discriminate against the homosexuals marraiges?? I think so many people have a phobia about it they cannot accept it. I have lived in other cities where this is really common. You come back here and it is a big issue?? If someone out their can find someone they love and want to spend the rest of your life with. All the power to you!!! "

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