For about two weeks now I have been debating whether or not to issue a formal endorsement of any of the ballot questions – but particularly question one.

After all, it is really a no win proposition for me – regardless of what I recommend, I will likely end up inciting a hostile reaction from at least half my readers.

All the more difficult for this subject, Pine Tree Politics is predominantly a center-right political commentary site, so an overwhelming majority of my readers likely expect me to endorse “Yes on 1″ – and anything to the contrary probably won’t be received well overall.  In fact, I’ve already gotten into multiple conversations on the subject with many conservative friends of mine – and I really don’t have much desire to get back into it.

But to hell with it – I’ve never been one for ducking controversy, and I do have an opinion on question 1 and it is time to give it.

I ran for the Maine legislature – as a Republican – in 2004.  I lost, to Democrat Dick Blanchard.

When the Equal Marriage bill came up for a vote, Blanchard voted no.  Ironically (given our party affiliations and the preconceived notions that go alone with them) had I been elected, I would have voted yes.  And, given that, I would then be voting no on question 1 today – to reject the veto.

Now, let me tell you why.

The concept of gay marriage is not a matter of civil rights, at least not in terms of them being denied.  It simply isn’t.  The institution of marriage is nothing more than a government classification for a specific type of contract which it recognizes.  Regardless of the religious and traditional nature of what marriage is, that is what it is legally to the state of Maine (and, frankly, every other state).

Because the union of marriage is a government created and defined contract – it has specific definitions.  The government  has defined this contract as is traditional – in other words, it is one man and one woman coming together to form a family unit, giving each other specific rights and privileges.

So, for the question of civil rights, and whether or not they are being abridged there is one thing that matters.

Access.

In other words, with this specific type of contract with the definition that has been given for that contract, will anyone who meets the required definition be allowed to access this institution?

Matters of sexuality are irrelevant to access.  The definition and requirement of the current law is that a male and female person enter into contract.  That is the definition.  It does not say a heterosexual male, and a heterosexual female.  In other words, homosexual persons have full access to the institution itself.  A homosexual man can enter into this contract with a homosexual (or heterosexual) female, and vice versa.  Access is there – civil rights are not curtailed.

Marriage, to me, is a lot like government funding. The government awards something – in this case money – to a specific, targetted demographic, group, organization, or person. That means somebody gets it and somebody doesn’t, and who does get it is determined by the government’s definition of who is supposed to get it. Hurricane victims have access to storm relief funds, victims of fire removed from the hurricane do not have access to those funds.

Governments are in the business of discriminating who they award certain things to – be it money, contracts, funds, etc. This is no different – the government has created something for a specific purpose, and those who are able to make use of it are specifically defined by the government.

In any event, this question of access (and the fact that it is not blocked) is in contrast with one of the main arguments for gay marriage – which is that in the past “marriage has been changed before – interracial marriages used to be illegal”.  This is untrue of course.  The definition of what marriage is has never been changed.  What was changed was a restriction on access to that institution.  In other words, it was still always the contractual joining of a man and a woman, but previously the government restricted access to that defined institution by restricting otherwise lawful applicants based on superficiality like skin color.

The civil rights violation was in denying access to the institution to those who would otherwise have met the criteria.  Again, no such access curtailment exists in the case of homosexuals attempting to make use of this specific type of contract – nothing restricts them from doing just that.  The restriction is in attempting to access it counter to the defined nature of the contract.  It is essentially like two individuals attempting to enter into a contract designed to be between two corporate entities – it simply doesn’t work.

Defining an institution like this – and by institution we are really just talking about a government sponsored recognition and benefits, nothing more – has nothing to do with “rights”.  With contracts and institutions such as this, there is no universal “right” to use a specific institution.

It is essentially a gift, a benefit.  There is no abridgment of free association, for example – not meeting the definition that would allow you to enter into a marriage contract does not mean you can not associate with anyone, it simply means you aren’t awarded a government present.  There are no constitutional protections or guarantees that are being stunted.  That is why a civil rights question is not on the table.

This is also why I do not, and never will, support judicial fiat forcing states to recognize a change in the definition of marriage.  I will never – never – believe that judges quite literally re-writing the definition of a government created institution is warranted, appropriate or legally sound.  When no civil rights violation exists, it is inappropriate for a judge to invent one, and then use it as justification for rewriting law to fit a political agenda.

But, the equal marriage law is not judicial fiat.  This is not Massachusetts – the voters of the state of Maine are not being asked to rule on civil rights violations, they are being asked if they want to uphold a law that changed the definition of what marriage is.

And that is the question in front of us. Are we as citizens of Maine (myself now only in spirit) now in favor of the definition being changed?  Do we want to remove the “one male and one female” requirement for access to the contractual institution of marriage?  In other words, do we want to extend access to a larger part of the citizenry?

Simple as that.

When you strip out all the hyperbolic talking points from both sides, all the b.s., all the invented Armageddon scenarios, all that is left is one question:  do you want to extend the definition to include same sex couples?  When it is no longer about political gamesmanship, flaunting the law, ideologically driving bad law, the only thing that is left is that one question, and that is where we are in Maine right now.

Many say no, we shouldn’t.  Marriage “has always been” defined as a man and a woman (factually ambiguous, but I won’t argue the point for the sake of clarity), and just because a different class of citizens wants to redefine it to be more expansive and all encompassing doesn’t mean we have to acquiesce to it. Marriage “is what it is” and it shouldn’t be cheapened or polluted by changing what it means and what it is. 

I respect that opinion (as long as it is borne from the rationale I just laid out, and not some vitriolic anti-gay prejudice) – but I happen to disagree with it.

When asked this reasonable question – should we extend the definition or not – I have only two real questions:  what is the upside, and what is the downside?

The upside is well documented, and obvious.  It gives homosexual couples a sense of legitimacy, it sends a message to the community that society values commitment, love and will not legally reject those principles simply because many among us may culturally oppose a person’s lifestyle.  It says that if free people make free choices to freely enter into a contract of union with each other, those free people’s free decision will be honored by the state.  It says that these decisions about who one chooses to legally commit to are personal to both heterosexual couples and homosexual couples, and the state has no business telling anyone their partnership is somehow undesirable simply because of what gender you are attracted to.

The downside?  Opponents say that once you change the definition once, you set a precedent that means you can then change it again for the next group who applies the requisite amount of political pressure – often cited are polygamists and, well a whole host of other examples.   Opponents say that giving acceptance and legal recognition of same-sex couples will lead to greater acceptance of such relationships, and leftist political organization will then take the next step and apply pressure to push the “gay agenda” in our schools, shaping young and impressionable minds to be accepting of homosexuality.  Opponents say it will cheapen marriage, making it essentially meaningless because “anyone can get married now”.

All of these scenarios, and the others I haven’t mentioned are hypothetical what ifs.  There are no tangible effects that we know will happen if the marriage definition is extended.  I’m sure political groups will probably push the envelope at some future point and try to change the definition again.  I’m sure the left will push for societal acceptance of homosexuality, possibly pushing the envelope too far into places it doesn’t belong.  But these are all “maybes”.

I don’t operate under “maybe”.  I don’t operate on fear of future chess moves.  The question in front of me right now is if it is right, or it is wrong, that we extend the definition of marriage to include homosexuals.  I am not being asked to chart out the political future of the country.  I am not being asked to set education policy regarding homosexuality.  I am not being asked to quantify the value of marriage (as if that is even possible) at some point ten years from now.

Thomas Jefferson once said, “I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.”, and that is a philosophy I operate under.  If doing something that is right and morally just means that there is a possibility that my permissiveness to the liberty of the people may lead to some inconveniences – like political fights about what my children are taught in school – then so be it.

I am married.  I have a two and a half year old son.  My homosexual friends having a legally defined ability to marry has absolutely no bearing on my ability to get married. You want to talk about cheapening marriage, I think heterosexuals have done a knock out job of that themselves.  Or need I point you to people’s exhibit a, b, c, d, e or f?

My son will be going to school in another couple years – so I am one of the people who will be wondering what exactly he will be taught in school. If the naysayers are right and a political agenda ends up in the school, in an attempt to indoctrinate my son, then I will deal with that issue when it comes up. But just because it could, and I will have to be vigilant to make sure political garbage doesn’t play a role in the education of my son, does not mean I will judge this question based on that possibility. That is another subject for another time.

We presume innocence until proven guilty with the full knowledge that some guilty people will go free, exploiting our protections of the accused – and we accept that philosophy so that we can ensure that the innocent are as protected as possible.

And in the case of liberties (which is a much different concept from “rights”), we have historically operated under a similar ideal – that we should err on the side of protecting freedom, even if there is the potential for some undesirable things to happen later.

In this case, it is time to define marriage in a way which gives freedom to homosexual couples to freely choose to enter into a legally recognized union.

We don’t have to do this.  There is no constitutional requirement to extend this new definition.  But we don’t do things because we have to – we do them because they are right, and in this case, it is right to vote no on 1, and uphold the equal marriage law.

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