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)