June 11, 2006
Gay marriage is back on the front burner, and not only because the US Congress, fresh from solving all the country's other problems, failed in their attempt to remedy one of the Founders' glaring omissions. A few weeks back, the 3rd District in State v. McKinley concluded that the Defense of Marriage Amendment passed by referendum in November of 2004 precludes a conviction of domestic violence where the victim is cohabiting with the defendant, on the theory that this gives non-married cohabitants a "status" equal to marriage, which the Amendment prohibits.
The 2nd District had come to the same conclusion, but that contention has been rejected in the 5th District, the 8th, the 9th, the 10th, and the 12th. (The 7th District also reversed a dismissal, although only because it felt the facts needed to be developed.) The 3rd District certified the conflict to the Supreme Court, where the question is ultimately going to be resolved.
I'm not going to sort through the arguments here, mainly because it doesn't matter; anyone who can't guess how the Supreme Court's going to decide this one probably went to see the movie Titanic and was surprised when the ship sank. Frankly, it's somewhat ironic that for all the sturm und drang the campaign on the Amendment engendered, the sole result of its passage to date has been to declare Open Season on Girlfriends in two appellate districts.
Then again, I confess to never having fully understood what the fuss was about. Yes, there are people who will say, "But Russ, if gays can marry each other, why can't someone marry his sister? Or a ten-year-old? Or his dog? Where do you draw the line?" Well, gosh, I don't know. How about we draw the line at marrying your sister or a ten-year-old or a dog?
That's just me, though. As they say in the commercials, your mileage may vary.
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