Spring 2004 #3. Same-sex marriage: Pro & Con - 'Gay marriage' is an oxymoron.

Author:by Stephen C. Whiting

Maine Bar Journal


Spring 2004 #3.

Same-sex marriage: Pro & Con - 'Gay marriage' is an oxymoron

Maine Bar JournalSpring 2004SAME-SEX MARRIAGE: PRO & CON - 'GAY MARRIAGE' IS AN OXYMORONby Stephen C. WhitingWhat is marriage? It seems logical that we should first define what marriage is, before we discuss whether there should be gay marriage.

Actually though, it seems funny that we would even have to ask this question. When I grew up, everyone knew what marriage was. Unfortunately, in the past ten years, thanks to some more "enlightened" state supreme courts, no one is quite sure what marriage is anymore.

For at least the past three thousand years, in almost every culture on the planet, marriage has been a "'til death do us part" commitment between a man and a woman to live together for the primary purpose of procreation and raising children. When a young man and a young woman got married, they left their parents' homes and moved in together - with their parents' blessings and society's approval - for the purpose of having conjugal relations, having children, and then raising those children together.

On the other hand, if a man and a woman moved in together without getting married, their parents were horrified and often disowned them. Society disapproved as well. They would be referred to as "shacking up" together; the woman was a "tramp" or a "slut"; and their children were "illegitimate" or "bastards." Needless to say, society did not expect the man to stick around to help raise the children.

Marriage was (and still is) an institution recognized in law and approved by society to create a safe haven for a man and woman to unite for the primary purpose of procreation and raising children. This purpose is expressly recognized in the preamble to Maine's Marriage Act1, which reads:

1. Findings. The people of the State of Maine find that:

  1. The union of one man and one woman joined in traditional monogamous marriage is of inestimable value to society; the State has a compelling interest to nurture and promote the unique institution of traditional monogamous marriage in the support of harmonious families and the physical and mental health of children; and that the State has the compelling interest in promoting the moral values inherent in traditional monogamous marriage.

    2. Purposes. The purposes of this chapter are:

  2. To encourage the traditional monogamous family unit as the basic building block of our society, the foundation of harmonious and enriching family life;

  3. To nurture, sustain and protect the traditional monogamous family unit in Maine society, its moral imperatives, its economic function and its unique contribution to the rearing of healthy children . . . "

    In addition, this purpose - of procreation and raising children - is woven into the rest of Maine's marriage law as well. See e.g.: Title 19-A M.R.S.A. §651(3) - distant relatives may marry if they receive genetic counseling from a physician; §652(5) - municipal clerks must give couples a brochure concerning the effects of alcohol and drugs on fetuses when they issue a marriage license; §652(6) - municipal clerks cannot issue a marriage license to distant relatives unless the clerk receives a physician's certificate of genetic counseling; §657 - a marriage performed by an unlicensed official is not void if the marriage is "consummated" with a full belief, on the part of either of the persons married, that they were lawfully married; §701(2) - people who are closely related by blood cannot marry; §752(2) - court entering an order for annulment may make an order awarding parental rights and responsibilities with respect to a minor child of the parties; §851(5) - court making an order of judicial separation may make an order awarding parental rights and responsibilities with...

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