In Spanish there is a saying to somewhat express the quest for the absurd: trying to achieve "la cuadratura del círculo", which could be translated as trying to square the circle. This is how I perceive the debate about the marriage for homosexuals.
First of all, as I usually do, I will appeal to the good faith of my readers, as I always try my best to have good faith when confronting positions with which I do not agree. By this I mean saving the good intentions of the people that don't think like me, believing that they are in good faith. In this case I will claim that I firmly believe that I am not prejudiced against homosexual people, and I do not in the least attempt to discriminate against them. Likewise, I will claim that I do not dismiss the arguments of those who oppose marriage between homosexuals just because I do not understand them. Even if I don't, it doesn't mean that I don't believe they may have good solid and rational reasons to do so.
We cannot expect, nobody should expect to legislate morality. Therefore, we cannot expect the law to punish somebody for doing something that some consider immoral. Some people might one day decide that picking your nose is immoral and therefore people who pick their noses should be punished. On the other hand, I think it reasonable to expect the law to be sensible and not call square what really is a circle.
The issue at stake here is not whether homosexual couples have the right to do in private whatever they choose to. The issue at stake here is whether there is such a thing as a constitutional right to get married regardless of any circumstances.
If homosexual couples can get married, why not heterosexuals of the same sex? Wouldn't that be a discrimination against heterosexuals? And what about polygamous or polyandrous marriage? What if already married men want to get married to a second woman (or vice versa)? Then we should also interpret the Constitution as allowing polygamy and polyandry, so we don't discriminate against people who wish to have many wives or many husbands.
Let me just mention a different example to top this "reductio ad absurdum". There is such a thing as freedom of association, protected by our Constitution, and there are several different types of associations, all permissible as long as they don't pursue criminal ends. Let us suppose that a group of friends, all secretely cheating on their wives, decides to "come out", and create an association for cheating husbands with such objectives as to provide emotional and other kinds of support to infidel spouses, and even to facilitate infidelity for those seeking to cheat on their wives. Under our Constitution, and under our laws, infidelity is not punished; therefore, strictly speaking, this association should be a viable one, since it does not pursue a criminal end. But allowing this kind of association to gain legal recognition would somewhat convey the idea that the law protects, and even fosters infidelity.
Sometimes I do get the feeling that those seeking the access of homosexuals to the institution of marriage are actually seeking to encourage homosexual behavior. See, there is a very clear distinction between the law protecting people, and law protecting people's behavior. Protecting the homosexual person is a matter of an elemental sense of justice, and the Law and its defenders should go whatever lengths are deemed necessary to accomplish such an end. Protecting the person, of course, entails protecting their privacy. But the protection of individuals' privacy is a screen to protect a necessary personal space, and it does not necessarily mean that the Law protects whatever is done in that personal space. People who get privately drunk should be respected in their personal and private decision, and that private space is to be protected by the Law, not because getting drunk is something good. What it is good is that people have a personal private space where to get drunk. Yelling to your husband is not something good and desirable just because the Law does not punish it and even protects the space for the yelling to happen. Cheating on your wife is not good and desirable just because the Law decides not to punish it either (or just because your wife yells at you).
Thus, we have gone from the reasonable, just, and very desirable and commendable aim of eradicating prejudice and discrimination against the homosexual person, to accepting the possibility that their behavior is actually not something undesirable for everybody else. From there, we jumped to the conclusion that it is actually something good and therefore, should be legally recognized as such by the Law. Now we get the impression that it is actually required that the Law protect and promote homosexuality as such. Next step is to discriminate against and legally punish those who think and teach that the homosexual behavior is actually not good, as if teaching against getting drunk also became legally objectionable. We are actually starting to see this kind of discrimination in several places. Paradoxically, this also encourages discrimination against homosexual people who do not wish to “come out of the closet”, let alone discrimination (even hatred) against those who seek help to get rid of homosexual tendencies. We have come full circle, and from that reasonable, just, desirable and commendable goal to eradicate discrimination, we are encouraging an unreasonable, unjust, undesirable and deplorable discrimination.
A side note on the "coming out" issue. I find it somewhat contradictory that people would enthusiastically encourage the "coming out" of the closet, elevating such behavior to levels of heroism, while at the same time arguing that whatever happens in the intimacy of one's bedroom is a private matter about which the law should have nothing to say. I totally agree with this argument: what happens in the intimacy, as long as it doesn't compromise somebody's rights, should be a private matter beyond the reach of the law. Being homosexual is, above all, a behavioral statement. It reveals a certain sexual behavior. As such, and as something that takes place (at least it should) in the intimacy of one's bedroom, it should remain something private. Why then the insistence on making it public? Why clamor for the law to institutionalize the status of such behavior, making it equivalent to heterosexual married couples?
I know, some may argue that, following this line of reasoning, the behavior of married heterosexual couples is likewise private and should remain so, right? Wrong! With negligible exceptions people get married to form a family. It's inscribed in our nature, in our biological nature. There is a natural drive in the common woman and the common man to become parents. Maybe some people don't feel this drive. I know that some people give up and repress this drive for different reasons. But however many these people are, it doesn't diminish one single ounce the weight of my previous statement: that the immense majority of people get married to have children and form a family. It's one of the, if not the commonest of human experiences. It has been so since we have notice. It's the obvious result of the natural instinct engraved deep inside our humanity towards perpetuating our own species.
Therefore, in its very nature or common sense definition, marriage involves the expectation of new human life, and comes loaded with a heavy sense of belonging, since it is through the insertion in a family that the individual becomes inserted into the larger community. It is the reason why it has been said that the family is the basic cell of society. And it is in this sense that marriage is a public matter. Not because it matters what the spouses do in their intimacy, but because of the very likely and very public consequences of what they do in their intimacy. These consequences are obviously not present in the case of homosexual couples. Let’s then keep theirs and everybody’s privacy, well, private.
It ultimately boils down to this simple and undeniable fact: marriage is the institution on which society places the expectation for new persons to come to life and become citizens. Any other human realities, whether desirable or not, are a different thing. If society decides that those realities should have a legal stature, then be it, but call it something else. Do not try to force one reality within the boundaries of arguably the oldest institution on earth. In a way, it’s a matter of calling things by their proper names. Again a Spanish saying: “al pan, pan; y al vino, vino” (call the bread, bread; and the wine, wine).
I’m not trying here to prove that homosexual behavior is bad and undesirable. I am only trying to prove that there is no unjust discrimination in not recognizing same sex partnerships as "marriage". There is not, as much as there is no unjust discrimination when the law prevents heterosexual people from having many spouses.
Nobody in their right minds would argue that the MLB discriminates against polo lovers when it does not allow polo teams to participate in the baseball league. Nobody is arguing here that polo is bad. All I’m saying is that it would be bad to go the Fenway to see the Red Sox play baseball, only to find that a polo match is taking place instead, and, even worse, they are calling it "baseball," they are actually selling us baseball tickets and then showing us something that, whatever it is, no matter its merits, is definitely not baseball.
Just from a legal standpoint, there is nothing wrong with a circle. Just don’t invent a law to pretend it is a square.
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