By Ted Williams
05/24/2011

I recently took a trip to Disney World with my family. Having two little girls, I am often in the unenviable position of having to take them into crowded men’s restrooms. My five year old daughter asked me about the reason for separate male and female restrooms, and I found myself having an extremely uncomfortable, although necessary, conversation. Yet this conversation forced me to consider the question… Why do we have separate male and female restrooms?

On the surface, this question seems elementary and even somewhat inane. Yet its answer addresses one of the most pressing and significant cultural questions our nation currently faces. Do gender-based restrictions on marriage represent discrimination?

In addressing this topic, we must establish the fundamental reality that my five year old daughter recognizes. Men and women are different. While equal opportunity among the sexes is a laudable goal for which we must continue to strive, there exists in our society fundamental gender-based segregation that is acceptable, commonly understood, and that serves a greater function. Both restrooms and sports teams are trenchant examples of this concept. No one would argue that the NFL discriminates because it has men-only teams, nor that Disney World should be sued for its women only-restrooms. Men and women have fundamental biological distinctions that make both their physical abilities and relationships starkly different.

For this reason, we must reject the notion that sexual orientation deserves the same status as racial and ethnic identity. Many argue today that denying homosexuals the right to marry is akin to denying African Americans the right to vote, marry outside of their race, or use public accommodations. While this argument sounds commendable on its surface, it is rooted in false assumptions. Primarily, we assume that sexual orientation has been proven to be conclusively an issue of biology. This is not the case, nor is the scientific community anywhere near consensus on this question. In fact given the extensive research into the impact of parenting on many behavioral issues, including sexual orientation, there exists evidence that most behaviors are influenced and are subject to change. Consequently, if sexual behaviors can be altered, then they must be relegated to the arena of a whole set of individual proclivities including polygamy, drug use, and whether someone prefers pepperoni or sausage on their pizza. By contrast, race and ethnicity are immutable issues of identity rather than behavior.

The 14th amendment to the US Constitution guarantees equal protection of the laws. Proponents of same-sex marriage often use this amendment in service of their cause. Yet what is problematic is the assumption that equal protection of the laws is a guarantee of equal institutional and contractual access. These ideas are fundamentally dissimilar. Both institutions and contractual agreements are subject to a variety of restrictions that are constitutionally permissible. Take the example of college admission. Anyone can apply to attend any college in the United States. However, their admission is subject to a variety of behaviors which include GPA, financial payments, and test scores. Denying access to college itself for a large group of Americans would clearly represent discrimination. Restricting access based on a pre-determined and consistently-applied set of behaviors is clearly permissible. Every American has a right to marriage, although this right is subject to a variety of limitations for which there is a compelling state interest. These include restrictions on incest, polygamy, and under-age marriage. To question the Constitutionality of restrictions on same-sex marriage would necessarily require the re-examination of these criteria as well.

What is the compelling state interest in the area of marriage? Why does the government get involved in this issue at all? The state has long taken a role in protecting children and influencing the environment in which they are raised. For this reason it protects them from child abuse, neglect, and mandates that they attend school. In the same way, there is little debate about the physiological influence of both parents on children. Not having a father in the home is a proven predictor of a variety of delinquent behaviors including incarceration, drug use, and academic failure. It has been proven that children desperately need the influence of both a mother and father. Legally and culturally sanctioning relationships that by their definition deny the influence of one of these parents represents a potentially dangerous social experiment whose outcome we have yet to fully realize.

We must resist the oversimplification of this controversy. Many proponents of gay marriage argue that this debate is simply about love, while others only see it as a question of the immorality of homosexuality as seen through the lens of the Bible. Let me make this clear. I do believe that homosexuality is an immoral behavior. Yet I do not agree that it is any more immoral than adultery, lying, and a variety of other deeds that are legally permissible in our culture. This discussion must be about providing for dignity and legal protections for a variety of relationships while encouraging and sanctioning heterosexual monogamous marriages for all of their societal benefits. Unfortunately this conversation has been framed in intolerance and oversimplifications that do more to divide than to unite us around a set of common principles.

People who disagree with same-sex marriage are labeled as homophobic, intolerant, and bigoted. This is true about some. However, this conversation must evolve to a place where we can recognize human rights and dignity for all Americans while protecting an institution whose survival impacts us all. For this reason, I support the concept of domestic partnerships for a variety of relationships through which people want to create legal arrangements. These partnerships exist to protect property-sharing, hospital visitation, insurance agreements, and a host of other benefits to which citizens should have access. However, these privileges can be extended without the re-definition of both marriage and the cultural norms that have served a vital function in every major society known to man.

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