August 20, 2019

Guest Commentary: A solution to same-sex marriage to satisfy both parties

By Leo K.

First and foremost, I would like to make it clear that I’m advocating neither for nor against the legalization of same-sex marriage. Rather, I want to suggest a solution that could possibly satisfy both parties to this controversial debate.

Basically, when looking at the law as such, it must be pointed out that it serves two basic functions — namely: an instrumental on one hand, and a symbolic on the other.

For example, the legislators of California have enacted section 297.5 in the state’s Family Code, which provides the following: “Registered domestic partners shall have the same rights, protections and benefits, and shall be subject to the same responsibilities, obligations, and duties under law.”

That particular statute refers to civil unions, which totally meet the instrumental criteria of law in this debate.

Insofar, I think we can do a better job in this country as it relates to equality and basic reciprocal beneficiary rights by having civil unions.

Personally, I’m in favor of traditional marriage; I don’t think we can redefine it without getting in trouble — but along with that, we sure can have civil unions.

Last but not least, I want to mention that I completely disagree with those who claim the federal constitution includes a right to same-sex marriage. Rather, I share the perspective of U.S. Supreme Court Justices such as Clarence Thomas and Antonin Scalia, both strong proponents of a legal philosophy known as “Originalism,” who made it very clear that at the time when the Equal Protection Clause was adopted as part of the federal Constitution, nobody ever thought that it should serve as a mechanism to facilitate same-sex marriage.

To put it simply: if most Americans do believe there is a fundamental right to same-sex marriage after all, it should be created like most other rights in a democratic society. The people should vote the appropriate legislator into office who’s going to enact a law establishing the recognition of same-sex marriage. However, the public should not expect the judiciary to create rights, which are clearly not included in the constitution.

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