Thursday, November 01, 2012

On Gay Marriage and Where the Arguments Against It Fail

"Gay marriage threatens our freedom."  "Gay marriage is unnatural and can't produce children."  "Gay  marriage will destroy the foundation of American society."  "Gay marriage will lead to polygamy, incest or worse."  I am not sure how many more dire and vile threats have been uttered about gay marriage in this country.  This particular article, Gay Marriage Threatens Our Freedom, seems to capture a great many of them.

After lambasting advocates for gay marriage, or a redefinition of the term marriage as writer James Miliken, Jr. puts it, Miliken proceeds to make many of the same "parade of horribles" that I mention above.  However, what Miliken has failed to do, which a great many people on both sides of the debate have failed to do, is recognize that marriage is actually has two different meanings, one secular and one parochial.  What gay marriage advocates are starting to do (as with Question 6 in Maryland) is recognize that there is a separation between the secular, legal aspects of marriage and the religious sacrament aspect of marriage.

The religious sacrament of marriage is of course older than this country.  Marriage is, for example, one of the sacred sacraments of Catholicism.  Most western religions acknowledge marriage between a man and a woman as a sacred bond.  However, not all religions hold that idea.  Islam, for example, acknowledges that a man may have more than one wife, but that man must support all of his wives and their offspring.  Marriage as a religious institution predates this country's founding and thus is, as Miliken puts it, a pre-existing institution.

Yet marriage in a legal sense exists outside of the religious foundations.  One need not get married in a church or by any member of the clergy (however loosely you choose to define clergy).  The legal institution of marriage may be conferred by a Justice of the Peace or a Judge or in some places, the Clerk of the Court at a county courthouse. These are not so-called civil unions either, they are legal and state sanctioned marriages just like those performed in a church.  Yet, those couples married by a civil (read secular) officer of the law receive the same legal benefits, i.e. rights of survivorship, contractual benefits, tax benefits, etc. of a couple married by a church (again loosely defined).  Let's not even discuss the legal effects of common law marriage that still exist in many states, where a ceremony need not happen at all. What most opponents of gay marriage cite as the moral foundation of traditional marriage is actually a religious foundation and does not apply to a significant percentage of marriages that legally exist in this country.

The biggest mistake this country ever made with regard to the institution of marriage is by allowing members to the clergy to bestow upon a couple the legal, secular rights of marriage at the same time as performing a religious rite.  In no other aspect of civil, secular society do we allow a religious rite to confer legal rights upon people.  For example, simply having a bar or bat mitzvah does not entitle the young man or woman with the legal, secular rights of adulthood such as voting or contract rights, even though a young teenage boy or girl may be thought of as adults within the Jewish community.  Marriage, alone among all the religious rites, has been able to cross that divide between religious rite and legal concepts.

Having said that, let's start with the fundamental basis of Miliken's argument:

The redefinition of marriage by the state would not only mean a violation of the freedom of those who disagree: it would be a giant step closer to a government that is genuinely totalitarian. Now, I know some of you are thinking that "totalitarian" in an overblown, sensationalistic term, but consider the following: laws concerning marriage have always been descriptive, describing and recognizing a pre-existent reality.  Even laws regulating certain aspects of marriage (the ban on polygamy, for instance, or laws against incest) have served to protect marriage from those who would warp its traditional contours. A law that redefines marriage to mean something completely different, something it has never been, is a prescriptive law, one that prescribes or creates a new reality. This is a power that few governments, and certainly not our constitutional republic, have ever claimed in regard to marriage. It is to treat something that the state has always recognized as pre-existent, above and beyond itself, as if it were a creation of the state, to be manipulated, redefined, and at some point (why not, after all?) even abolished at the whim of the ruling power. This is why the protester's question "When did I get to vote on your marriage?" is so off-base. Marriage has never been subject to any vote; it was here before this or any other government, and is the creation of no human government.

But parsing Mr. Miliken's statement we find not only a parade of horribles but a fundamental lack of understanding of the legal underpinnings behind the civil, secular recognition of marriages. Mr. Miliken, by calling it a redefinition of marriage, argues that the state has no business re-defining marriage as he or perhaps even a majority of Americans define it.  But marriage has to have a legal definition and we have laws in this country that protect against the disparate treatment of individuals.  But because people, including me, believe that the law, it.e the secular basis of our society, should not deny people the equal protection of their life choices,  does not make me or the government totalitarian.  Indeed, denying legal secular rights to someone simply because the love of their life has the same biological plumbing is totalitarian.    

If Mr. Miliken's logic is premised upon the notion that because marriage pre-existed the country then it is somehow above the oversight of us mere mortals that comprise the electorate or the approval and oversight of the legislature.  If Mr. Miliken is right, then what we have really is a historical accident or oversight.  However, in fact, the "marriage laws" in this country have been subject to a vote of sorts.  The laws that recognize the religious and secular institution of marriage have been subject to votes of some sort of legislative body, if not in terms of active vote, at least in terms of a vote not to abolish or amend the regulations that allow for the variety of legal rights attendant to marriage.  Certainly the provision of services to provide civil marriages ceremonies is something that has been subject to the power of the legislature to review.

But gay marriage is not actually infringing on any one's rights.  So far, not one opponent of gay marriage has been able to describe how exactly their freedom, or their marriage, or their freedom to marry will be impacted at all, positively or negatively, by allowing two gay people to marry.  Let's assume for a moment that Mr. Miliken is right, that the government recognizes that marriage "is an essential prerequisite for stable, healthy families," what about that recognition is limited to heterosexual marriage?  Fundamentally, does the government truly have a legitimate interest in promoting "stable, healthy families?"  If so, how should the government go about promoting that interest?  Should the government require everyone to get married by age 30?  How does that further the interests of the Framers of "Life, Liberty and the Pursuit of Happiness?"  If men (and women) are endowed by their Creator with these rights--these natural rights--then by those very words, government has no right to take those rights away without due process of the law.  What is the due process that was followed to deny homosexuals the right to marry?  Is it not their natural life, liberty and pursuit of happiness they are attempting to follow?  And assuming a vote took place to deny them their right (which has not happened everywhere), do they not have the right to attempt to change the minds of the voting electorate?

Mr. Miliken cites what is the favorite line among religious conservatives:  "The real question is whether then union of a man and women is different from that of two men or two women (hint: the answer has something to do with babies)."  Pray tell, Mr. Miliken, what is the government's interest in procreation? We have procreation all the time outside the "union" of a man and woman (which I am neither condoning or condeming, merely stating a "pre-existing reality.")  By this logic any man or woman who, whether by biology or accident or choice, are unable to have children should not be permitted to marry.  Widows and widowers would not be allowed to remarry if the woman has passed menopause.  I that what Mr. Miliken is really advocating?  

But returning to the legal and "moral" foundation of Mr. Miliken's argument, the government, which derives its just powers from the consent of the governed, has a duty to provide equal protection of the laws, particularly when it comes to the freedom of expression (i.e. speech, association, etc.).  We may not like all the forms of the consequences of that legal protection.  For example, I am not a big fan of people who burn flags, but as a veteran I defended and will continue to defend their right to burn the flag.  That is freedom of expression.  But what opponents of gay marriage are saying is that the expression of love, through the legal institution of marriage, by two men or two women is not an expression that should be permitted.  Where is the moral foundation for that prohibition?  The mere reason that marriage existed before the United States does not lend it any more protection under the laws.

I close with a admonition from Phi Sigma Pi, my fraternity, "Merely because a practice is prevalent may be the poorest reason for continuing it."

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