Same-sex marriage, with a twist

The Kansas Supreme Court enforces a ban on gay marriage and clears the way for -- gay marriage.

Published March 22, 2002 8:05PM (EST)

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.

This rule certainly has the virtue of being easy to administer: To determine whether a marriage is legal in Kansas, a couple will need to show up at the clerk's office with a documented chromosome check and the clerk will issue a marriage license. But it's hard to square this rule with any of the arguments against same-sex marriage that we're used to. Assume, for example, that J'Noel decides she is a lesbian and finds a nice girl to settle down with in Wichita or Topeka. They decide to have a child, and like heterosexual couples who have biological problems procreating, use a little medical science to intervene. Or maybe they adopt. Their child (or children) will have legally married homosexual parents of the same (apparent) sex -- a configuration that many Kansans find intolerable -- because the court has tried to enforce state law against same-sex marriage.

J'Noel and her new wife could drop by the supermarket and shop arm in arm, with all the world, and the world's kids, watching. If they kissed, and anyone tried to make a big stink about it, J'Noel and her wife could simply brandish the Supreme Court decision, demonstrating the legality of their marriage. They would apparently be entitled to all the federal tax benefits married couples get, not to mention all the rights and responsibilities married couples have under Kansas law. In fact, they might fit the profile of a model "normal" marriage in Kansas, though one would have to see evidence of their chromosomal makeup to understand that.

In its decision, the Kansas court is up-front about the fact that the legislature is ultimately responsible for what the law says, and that the court is simply interpreting the law as best it can. But it's hard to see how the legislature could make a better job of it than the court did. It is difficult, if not impossible, to compulsively distinguish between same-sex and opposite-sex marriages without facing the profound question of what sex is and why it matters.

If the legislature does nothing, it permits homosexual transsexuals to marry people of what appears to be the same sex, leaving heterosexual post-op transsexuals out in the cold, along with all the non-transsexual homosexuals in the state. If the legislature sees a problem in legalizing apparent same-sex marriage, it could overrule the court and permit transsexuals to marry someone who is the opposite of their post-op gender, thus acknowledging that it is the appearance of opposite sex that is ultimately the guiding force in creating public policy. But, in order to apply that policy with any consistency, the legislature would then be obliged to prohibit heterosexual cross-dressers from (a) marrying, or (b) appearing in public with their spouses and expressing affection. Option (b) would certainly present some interesting First Amendment issues, and no one anywhere has proposed anything like option (a).

But that isn't the end of it. Most people, it's true, have either an XX or an XY chromosome set to determine their gender. But some people have more. What about those people who have three chromosomes? Who do they get to marry? How would that be decided? And what about children like the infamous John/Joan, who was born a male but whose parents approved an operation to have his penis removed after a botched circumcision and then raised him as a girl -- with very poor results. Unlike J'Noel, he/she never had a choice about the sex change. Who should someone like John/Joan be allowed to marry? And why should the state have any role in that decision?

The Gardiner ruling, in all its stunning complexity, should illustrate, better even than the cases dealing directly with same-sex marriage, how extraordinary it is for the state to be inserting itself into the relative gender of marital partners. Lesbians and gay men know, and Gardiner may help some heterosexuals to realize, that it isn't the relative sex of the partners that makes marriage valuable to both society and individuals, and it certainly isn't the appearance of opposite sex; it's the intimacy and satisfaction of the two partners. We all benefit from couples who support one another, emotionally, financially, spiritually and in all the other ways couples lean on one another.

The question at the heart of Gardiner is not whether J'Noel is a man or a woman, it's whether she is worth treating as a human being. As long as Kansans focus on the first question, it will be necessary for them to answer the second with a humiliating no.

By David Link

David Link, an attorney in Los Angeles, is a contributing writer to the online Independent Gay Forum. His work also has been published in the Los Angeles Times, Reason magazine, and theChicago Tribune, among others.

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