Duck Season

Lots of people are taking John Derbyshire to task for this post:

1. If "gay marriage" is legalized, will prisoners be able to marry their cell mates? If not, why not?

2. In many jurisdictions, a marriage can be annulled if it has not been consummated. What, exactly, constitutes "consummation" of a gay marriage?

Obviously this was meant to be funny, and it offended some people who thought that it was homophobic. What they need to keep in mind, however, is that these are the exact questions that the courts will have to consider if gay marriage were legalized.

Consider this question that one of Derbyshire's emailers proposed, which is like the serious version of Derbyshire's first question:

... what if two men who are partners in crime take the precaution of marrying, so that they can each be sure that the other one won't turn state's evidence at trial, should they be caught?

To which I would add: what if two partners in crime get married after they are arrested? Would they still get the same immunity from testifying against one another?

Or consider this scenario: two men get married. One of the men has a child with a woman who then gives the two men full parental rights. The woman regularly visits the child and is a part of the child's life. Years later, the two men get divorced. Who gets custody? In straight marriages, if one of the parents is the biological parent while the other is not, the biological parent is overwhelmingly favored by the court. (Put aside the argument that the court should decide simply on the merits of the parents and not favor one over another in all cases; the law is what it is and it's not going to change soon) Does the man from whom the sperm came get treated as the biological parent should there be a custody battle, thereby almost guaranteeing him custody of the child? Or should the court consider the extenuating circumstance in which it is biologically impossible for both men to be the biological parents of the same child, and disregard the fact that one of the men is the biological parent? And what about the rights of the mother? Should she be given the custody instead, is she wants it, since courts usually favor the biological mother above all others?

And how about this: two women who both want to be biological parents of their child comes up with an ingenious plan. The fertilized egg of one of the women is removed and implanted into the womb of her partner, so in a way both parents are biological parents: one gives the baby its DNA while the other carries the baby to term. Again, how should the courts decide on custody? Which parent, if either, should the court favor?

As for Derbyshire's second question, while I'm not a law scholar, I'm very sure that there is already a case somewhere in our history in which a court have had to consider whether a marriage has been consummated after the couple went to third base but not go all the way. We've had cases of people suing the devil, for Christ's sake.

All of this is to say, again, that there are real legal questions that will have be considered if gay marriage were legalized. Personally, I would feel much more comfortable if these issues were decided by state legislatures instead of the courts, because since these types of cases will most likely not make it out of district courts, these very important questions will be decided not on the will of the public or even the legislators or the judges as a whole, but on blind luck depending on which individual district judge gets assigned to a few specific cases. This is one of the reasons why I thought only state legislatures, and not courts, should be the ones to legalize gay marriage. If it were done by a legislature, they can consider the hundreds of questions that will come with such a monumental change at the same time as they pass the bill on legalization, but it's simply impossible (or a massive abuse of power) for courts to do so because of dicta limitations.

I don't believe that the world will go to hell if gay marriage were legalized like some conservatives think it will, but it's not a simple as "legalize it, everyone lives happily ever after" either.