"May, but Can't"

by Dale O'Leary - May 20, 2008

Reprinted with permission.

The California Supreme Court has followed Massachusetts in finding that the "right to marry" includes the right to call a same-sex relationship a marriage. In doing so, they have done violence to the concept of marriage.

They have ignored the difference between "may" and "can." It is not that two persons of the same sex "may not" – that is, do not have legal permission to marry – but that they "cannot" – are not able to – marry. Calling a same-sex relationship a marriage doesn't make it so.

Marriage involves two indispensable acts: consent and consummation. While two persons of the same sex may say the words, they cannot engage in a true marital act, the one unique action that consummates marriage vows. While the state does not check up on such things, an unconsummated marriage can be annulled by simple proof of that fact.

Those who choose to redefine marriage ignore the fundamental reality that men and women are different. This difference allows them to engage in the one specific act that creates a marriage. Anything else is not marriage.

According to the California court's opinion,

Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

The hypocrisy of the court in pretending that their ruling will not impinge on freedom of those who disagree with its decision is mind-blowing. Where marriage has been redefined, people of faith have already seen their freedom of religion, of speech, and of action impinged on. Justices of the peace have been told to "marry" same-sex couples or be sued. Wedding photographers have been fined for refusing to accept same-sex couples as clients. Religious institutions that refuse to rent their facilities for same-sex weddings have been challenged. Adoption agencies that refuse to place children with same-sex couples have been driven out of business. Foster parents have been told to tell children in their care that homosexuality is equal to heterosexuality. Teachers and other state employees have been censured for exercising their right to free speech on this issue outside of the workplace. Parents have been told that their children's kindergarten class must, without notifying them, teach that same-sex relationships are equal to male/female ones. The list goes on.

Discrimination against people who believe that two persons of the same sex cannot marry will only escalate. The California court's decision equates the denial of the designation "marriage" to same-sex couples with "invidious and prejudicial treatment" based on race or sex and implies that those who defend marriage are motivated by "outdated social stereotypes."

We are not looking down a possible slippery slope. We are halfway down the hill.

In California, the legislature had granted same-sex couples all the rights and benefits associated with marriage, withholding only the name. However, rather than seeing this as a reasonable compromise, the court has ruled that same-sex couples have a right to "have their family relationship accorded respect and dignity." This is precisely what we cannot in good conscience do. We accord all human persons respect and dignity, but we cannot call something a marriage that manifestly is not a marriage.

Gay activists don't just want the benefits, they want universal approval. They have manipulated the justice system and now they intend to use it to force everyone to agree. Once a lie is written into law, it must be defended with more lies. Various kinds of force will be employed to ensure compliance. Religious institutions that continue to defend the truth about marriage will be sued. Their tax-exempt status, their benefit programs, and their hiring and firing practices will be challenged.

The people of California have the opportunity to overturn this decision. The battle will be fierce. Victory in California is essential, but it is not enough. We have seen how courts toss aside the will of the people expressed through referendum. The only answer to judicial tyranny is an amendment to the U.S. Constitution defending marriage. Every candidate for state and federal office must be pushed to stand up for the truth about marriage. This election cycle may be the last chance we have to defend our freedom of religion, our freedom of speech, and our rights as parents to raise our children in the faith.

Dale O'Leary is the author of One Man, One Woman: A Catholic's Guide to Defending Marriage (Sophia Institute Press).