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Thursday, Nov 26, 2009
The Kansas Supreme Court enforces a ban on gay marriage and clears the way for -- gay marriage.
Mar 22, 2002 | Let's face it, the subject of same-sex marriage tends to unhinge rational debate. Otherwise sensible people scramble for arguments to defend exclusionary marriage laws that barely stand up to even modest scrutiny. The two state supreme courts that have tried to sort through the mess and directly address the question -- Hawaii's and Vermont's -- failed to find any reasoned case to defend opposite-sex-only marriage. But when the issue was bounced back to the legislative process, common sense again got short shrift. Hawaii's voters took the extraordinary step of amending their state constitution to require inequality. Vermont's legislature created a parallel institution called "civil unions" to confer the rights and responsibilities of marriage on same-sex couples, but refused to call what walks, looks and swims like a duck a duck.
But when it comes to dysfunctional reasoning, the citizens of Vermont and Hawaii have to take a backseat to the Kansas Supreme Court, which has weighed in with what qualifies as a genuine first: a decision meant to enforce a ban on same-sex marriage that actually clears the way for same-sex marriage, as long as the union involves a gay transsexual. In dealing with the case of a male-to-female transsexual who married the man she loved, the court attempted to figure out whether the transsexual was a male or a female. In the process, the justices tripped over the state's ban on same-sex marriage and stumbled into the dilemma that's at the heart of current marriage laws.
Best to begin at the beginning. The basic facts of "In re Estate of Gardiner" are conventional enough to be almost archetypal: A young woman meets an older, wealthier man, and four months later they get married. The following year, the man dies, and his estranged son, who's out of the will, challenges the marriage. It all winds up in court.
The twist, and it's a good one, is that the son challenged the marriage as illegal because it was between members of the same sex, which is not permitted under Kansas law. It turns out that the wife, J'Noel, had been born a male, and four years prior to the marriage had undergone a complete sex change operation. It had taken her three years of surgical, psychological and pharmaceutical procedures to change her gender.
The final step in J'Noel's sex change odyssey had been to formally and legally have her birth certificate, passport and related health documents changed to reflect that she was a woman. Her husband, a former state legislator and chairman of the Kansas Democratic party, was aware of all of this. Indeed, there was no question in the case that he was capable of making his own decisions.
In its ruling, the Kansas Supreme Court agreed with the son, holding that anyone who is born a man is always a man, and nothing can ever change that. Under Kansas law, which prohibits same-sex marriages, J'Noel had been born a man, and thus her marriage to a man was illegal.
But by focusing so doggedly on preventing same-sex marriage, the Kansas court has created a situation that may make Kansans feel like they aren't in Kansas anymore. After Gardiner, a woman in Kansas can have surgery to make herself a man, and then marry a man -- legally. Which isn't even the weird part. The weird part is that Kansas, a state which has no ambiguity in its law prohibiting same-sex marriages, is now one of the few places on Earth that requires transsexuals to be homosexual as a condition of marriage. Because if a transsexual is heterosexual after surgery (i.e., a chromosomal woman who has the body of a man and has sexual desires for women), he can't get married to anyone he has a sexual desire for. It's only if he's attracted to other men that he can rely on Kansas law to provide him with a legally binding marriage.
