The 55 years that these women have been together is longer by far than a huge percentage of straight married couples. My grandparents weren’t together for very much longer. My parents, in their seventies, have been together for slightly less time (51 years of marriage). I look at Ms. Martin and Ms. Lyon, and I see a devoted couple, nothing more, nothing less. I see no threat to traditional values, or to the sanctity of marriage.
I think it is long past time for Americans to think critically about all of the various arguments against same-sex marriage. There is a fairly straightforward logical sequence that can be followed. The first step in looking at the issue is deciding whether the burden lies with same-sex couples to prove that they should be able to marry, or lies with the government to prove that they should not. We have a system of limited government, based upon a Constitution that says at least as much about what the government cannot do as it says about what the government can do. Further, the rights enumerated in the Bill of Rights are not an exclusive list, meaning that there are unenumerated rights which are held by the People and which are protected by a presumption of liberty. The burden, then, should properly rest with the government, to prove why it should have the power to deny same-sex couples the right to marry.
The second step we need to take in considering this question is to separate the religious component of marriage from the secular component. On the one hand we have the church-sanctioned marriage ceremony, and the religiously-based concept of what marriage is and should be. On the other hand, we have the purely secular contractual aspect of marriage, the agreement to support and sustain one another.
On the religious side, the government cannot compel any given church to accept the validity of same-sex marriage, or to perform same-sex wedding ceremonies. It is a fundamental precept of religious freedom that the various churches, in all of their diversity, must be left alone to determine what is and is not acceptable under their religious laws. Of course, this also means that the government has no power to tell churchesnot to respect same-sex marriages. The Unitarians are free to perform same-sex weddings under their religious principles, just as the Southern Baptists are free to refuse to do so.
The secular aspect of marriage is where I believe the government’s burden of proof comes into play. A civil marriage, independent of religious law, is a basic matter of freedom of contract. Two people appear before the civil authorities (a justice of the peace, usually) and make an open promise to one another that they will share their lives and their resources. To prevent two people from making such an agreement, the government needs to be able to justify why it should have that power. There needs to be some kind of public welfare issue at stake, some way in which the government is acting to enhance and protect social stability, or public health, or something of similar importance. And that issue must be independent of religious doctrine, because the churches already have the power to decide, on religious grounds, whether a marriage is valid or not.
So now we have the question properly framed: does the government have a valid and compelling secular basis to deny its citizens the contractual right to be civilly married?
We now have several states that recognize either gay marriage or gay civil unions. And there are numerous countries around the world that likewise do so, including the Netherlands; Canda; Belgium; Norway; South Africa; and Spain. So we should have all the data we need to determine whether the allowance of same-sex marriage has any negative societal effects. Are there increases in STD transmission? Increases in heterosexual divorce (since gay marriage is a purported threat to straight marriage)? Increases in child abuse (since some people insist on equating homosexuality with pedophelia or pederasty)? Are there measurable increases in any negative social indicator? And if so, can these harmful effects be reliably, scientifically linked to gay marriage?
So far, I’ve seen no data from anywhere that reflects any kind of societal harm flowing from the permission of gay marriage. Heterosexual divorce rates remain high, but they’ve not increased dramatically since gay marriages started happening. If anyone is to blame for the decline of heterosexual marriage, it has to be heterosexuals themselves. I’ve seen no data about STD transmission spiking, or about increased reports of child abuse. Multiple countries in the Western world are allowing gays to marry…and civilization has not collapsed into a state of pre-medieval barbarity. Go figure.
What about intangible, difficult-to-quantify aspects of social welfare? Some argue that gays should not marry because they cannot procreate. That argument is defeated by the simple fact that many straight couples get married either without the physical ability to have children or without the desire to do so. No one treats childless straight couples as less than fully married. Others have objections to the sexual acts involved in gay relationships. That argument is likewise invalid, because a large percentage of straight couples engage in many, if not all, of the sexual activities enjoyed by gay couples. As much as some of our more conservative friends might like to be able to ban straight couples from having oral sex, they can no longer do so under current Constitutional law, nor can they ban anal sex. People do what they want to do in the privacy of their bedrooms. The fact that the habits of some might be disgusting to others is no basis to grant the government police powers to ban those activities, provided that freely consenting adults are involved and no one is being harmed.
To my mind, there are two Supreme Court cases that make it logically impossible to sustain a ban on gay marriage. The first is Griswold v. Connecticut, in which the Supreme Court held that a state could not ban the use of contraceptives by married couples. That was a landmark case in recognizing the sanctity of privacy in the bedroom (a principle further extended in 2003’sLawrence v Texas, which overturned Texas’ anti-sodomy statute). The second is Loving v. Virginia, in which the Supreme Court held that states cannot ban interracial couples from marrying. If you combine the principles of those two cases, freedom and privacy in the bedroom and freedom to marry whom you choose to, you cannot sustain a rational argument against gay marriage.
The arguments against miscegenation were in many ways identical to today’s arguments against gay marriage. Interracial marriage was seen as a threat to the family, or at least a threat to the white family, because it threatened the dilution (or “mongrelization”) or the white race. People cited certain bible versus to oppose miscegenation, argued that it was against God’s law for people from different races to marry. Particularly in the South, the level of hysteria that the miscegenation issue evoked in some people was virtually the same as the hysteria one sees from the most vocal opponents of gay marriage. The opponents of miscegenation were wrong for many of the same reasons that the opponents of gay marriage are wrong.
It is important to note that I am not in any way arguing that gay marriage is permissible under Judeo-Christian scriptures. Anyone who reads the book of Leviticus can plainly see that it is not. Of course, I always wonder if the folks who invoke Leviticus to prohibit gay marriage hold themselves accountable to the rest of the 613 commandments. Do they follow Kashrut? Are they circumcised? Do they treat women as unclean during their menstrual cycles? Do they recognize an annual day of atonement? Do they believe that the death penaltyshould apply to adulturers (male and female); women who have sex before marriage or engagement; blasphemers; and people who work on the Sabbath? Something tells me there’s a bit of selection going on here, but I could be wrong.
In closing, I leave you with the words of Mildred Loving,taken from the statement she issued in commemoration of the 40th anniversary of Loving v. Virginia:
My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.
Surrounded as I am now by wonderful children and grandchildren, not a
day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
