Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Marriage and Homosexual Rights

James Skillen


October 20, 2003

With a proposed marriage amendment to the US Constitution now working its way through Congress, it is important to clarify the difference between the rights of citizens and the rights of marriage.

Civil rights in the American republic protect every citizen's life, property, religious freedom, free speech, freedom of association, access to a fair trial, and equal treatment under the law. Neither heterosexual nor homosexual orientation should be considered the basis for citizenship and civil rights.

Protecting these civil rights means that many activities and relationships among citizens require no recognition in public law. For example, friendships, including those that are intimate and enduring, have no standing in the law as institutions or organizations. That is as it should be. People who are homosexually oriented, just as those who are heterosexually oriented should, as citizens, have the same right to enjoy such freedom of association.

The civil rights of individuals are not the end of the matter, however. In addition to the rights of individuals there are also rights of different kinds of associations, organizations, and institutions. And this is where marriage and the family come in. Government cannot do justice to human society if it does not distinguish a non-profit research center from a profit-making industry, a church from a university, and a marriage from a friendship.

The political and legal debate over marriage should focus on the question of the institutional identity of marriage and not, first of all, on the morality or immorality of different kinds of sexual relationships. In this regard, marriage should continue to be recognized, as it has been for centuries, as an enduring, covenant bond of love between a man and a woman that legitimately bounds sexual intercourse and the consequences of procreation.

Sexual intercourse holds the potential for life-generation and should therefore be contained within marriage. From marriage children may emerge, and with children the parental responsibility of father and mother in a nuclear family arises.

Public law does not create marriage. Marriage and family originate outside the political bond. Yet just as the law recognizes individual rights, so the law should recognize marriage and the family as institutions with their own rights and obligations. Moreover, the law should regulate marriage and family for purposes of protection, encouragement, public health, and the ongoing stability and well-being of the social order.

Homosexual relationships do not entail sexual intercourse and do not have the potential for life-generation. Consequently, such relationships do not constitute marriage and cannot give rise to families through procreation. The attempt to attain the legal identification of marriage for a homosexual relationship is, therefore, a legal error based on an empirical mistake.

There is no reason to identify different kinds of friendship and other personal relationships, including homosexual relationships, as institutions. There is ample room in the law for individuals to covenant or contract with one another for various social, economic, and moral purposes. If there are good reasons to make changes in health-care policies, hospital visiting rights, and other areas to accommodate "domestic partnerships" in addition to marriages and families, those changes should be designed to accommodate the full range of unmarried partnerships and not only gay and lesbian partners. In other words, it would amount to unjust civil-rights discrimination to single out one kind of non-marital relationship for a privilege usually granted to marriage partners and their families while denying that privilege to other kinds of enduring non-marital partnerships and friendships.

—James W. Skillen, President
    Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”