You guys are all taking a frame of reference that is different from the one I take.
Essentially, I don’t think the genetic/choice debate is pertinent to the question at hand, because marriage isn’t a civil rights issue, irrespective of how those who want the courts to enforce a gay-marriage right would choose to define it.
The bottom line question is whether the legislature can decide to preference one form of behavior, and subsidize that, while not extending that subsidy to other forms of behavior.
Unless there is an individual right to state-sanctioned marriage somewhere in the Constitution, which I would love for someone to point out to me, or unless gays are a “suspect class” under the USSC’s Constitutional civil rights doctrines, which they are not (in fact, only blacks and women are, and blacks more than women), then the only thing that the legislature needs is a “rational basis” for its program. And “rational basis” basically means the court isn’t even going to do an analysis – it’s the ultimiate standard of judicial deference to the legislature.
So if the legislature decides that heterosexual marriages are good for society (good for child-raising, or for whatever other reason they come up with), and thus wants to preference them with tax incentives and make it easy for a package of contractual rights to attach upon the consummation of a legal, state-sanctioned marriage, then the court has no business questioning that decision.
There is no individual liberty restriction taking place, because no one is stopping: 1) gays from living together; 2) gays from engaging in whatever sexual behavior they want with whichever gender they want; 3) from finding a church to say they are married according to that church’s religious doctrine; and 4) any individual of whatever sexual preference from marrying someone of the opposite sex.
If the court were to make up an individual right to “marriage” and place it somewhere in those “penumbras” of the Constitution, then those arguments concerning polygamy, incest, and other things take on a whole new importance, because if there were an individual right to marriage, then why would the number of individuals or their biological relationship be any less “arbitrary and capricious” than restricting it to only those of opposite gender?
That’s the legal analysis.
And under that analysis, the legislature wouldn’t have to open marriage to gays, or create a separate program, if it didn’t want to do so, for whatever reason.
The other side of the question is whether there is a good argument against the expansion of marriage to include gays that goes beyone the “ick” factor.
I hold that there is a rational argument in that area, but it is actually a stronger argument against the creation of a “civil union” that encompasses heterosexual couples. The assumptions behind that argument are: 1) That traditional, two-gendered couples and nuclear families are better for society than other forms, especially due to child-rearing issues; and 2) That heterosexuals generally need to be incentivized to form and stay in such relationships. Assumption 2 comes into play because the contractual rights that go with marriage also come with contractual duties, and many people, especially young men, would generally choose to be without the duties.
As such, the argument that creating an easy “civil union” would weaken marriage seems quite evident – though I’m sure there are many who would argue the premises.
A little less clear is whether expanding marriage to gays, without other changes, would necessarily weaken marriage. This requires another assumption: Namely, that gays would be more promiscuous when married. THis example would then weaken some of the social assumptions and strength that serve to hold marriage together – especially in the modern society with its more permissive divorce laws.
To me, the ultimate solution that addresses both sides, and fits neatly with the Constitutional analysis above, would be for state legislatures in receptive jurisdictions to create civil unions that were only available to homosexual couples, and which were just as hard, if not harder, to get out of than traditional marriage (this would be key if couples in civil unions were allowed to adopt children in those jurisdictions).
However, given this is a legislative matter with no individual right attached, it would be left to the individual states to take the matter up. One thinks that CA, NY, MA and some other jurisdictions wouldn’t be too hard pressed to enact such solutions, giving gay couples the chance to vote with their feet, as it were, as to whether the ability to enter into such unions is truly important to them.