Is America Ready for Civil Government?

Wendy Kaminer

Eventually, the exclusion of gay people from the institution of civil marriage will seem as irrational and unjust as laws against interracial marriage; given the relative indifference of the young toward other people’s sexual orientations, time is on the side of gay rights. But, in the meantime, opposition to same­sex civil marriage seems a good measure of opposition to secular government: A December 2003 New York Times/CBS poll found that 55 percent of Americans support a constitutional amendment prohibiting civil marriages for gay peo­ple, while about the same number—53 percent—view marriage as “largely a religious matter.” This finding suggests that more than half of all Americans don’t understand or acknowledge the difference between civil and reli­gious marriages or the trouble with basing civil laws on particular sec­tarian ideals.

“I just don’t think it’s right for two men to go parading around in public or for two women to be doing the things they do,” one man said, explaining his support for a constitutional ban on same­-sex civil marriage. “It’s against God’s law. That’s right in the Bible that it’s wrong.”*

Of course, for years, reli­gious conservatives have voiced similar objections about abortion rights, feminism, and the teaching of evolution. There’s hardly anything new about the insistence that civil law reflect particular interpretations of scripture. And even the most militant secularist ought to admit that widely held moral ideals—which are perenni­al and inevitable bases for law—often coincide with religious codes. Still, there’s a difference between civil laws against murder and civil laws against adultery. Both murder and adultery are supposedly sins against God, but only one is an appropriate target of criminal law. (Laws against adultery exist but are virtually unenforced and probably unenforceable.) Murder is vir­tually universally condemned by reli­gious and non-religious alike; perspec­tives on adultery vary, and support for its criminalization is probably limited to a fairly small sectarian minority—a much smaller minority, I imagine, than the number of Americans who engage in adultery.

When, in a secular society, should “sin” become a crime or a civil taboo? That’s one question posed by the gay marriage debate, which is in large part a debate about gay sex. Some opponents of gay marriage claim they’re driven by pragmatic concerns about the welfare of children and the preservation of a strong link between marriage and procreation, but the logic of their arguments is
elu­sive. They have yet to explain how laws that prohibit gay parents from marrying help their children or why we should allow the marriages of heterosexual cou­ples with no procreative ability or intent and not even an interest in adoption. The concerns of gay marriage opponents are clearly moral (and visceral), not pragmatic.

Are these appropriate moral con­cerns for legislators? Or, to put it crude­ly, as a legal matter, are homosexual unions more like adultery or murder?

Given that half of all Americans consid­er homosexuality immoral, according to the 2003 New York Times/CBS poll, the question isn’t frivolous, even if offensive to some. This is a war over morality, for people on both sides, as well as a war over religious ideals. (There are, after all, religious people who favor gay mar­riage.) While some are morally outraged by homosexual relationships, whether they lead to marriage or not, gay-­rights activists consider their exclusion from marriage deeply immoral, like other forms of discrimination. Civil rights movements are always, in part, moral crusades for justice under law.

The challenge is to conduct the moral debate without sliding into sectarian­ism. The Reverend Martin Luther King showed us how. He was the Christian leader of a political movement, but he spoke to the country in the language of secular justice, appealing to constitu­tional ideals of equality. Opponents of gay marriage who have a strong base of support among religious conservatives of several faiths may not have to follow King’s lead on this to prevail—in the short term. Without reverting to secu­lar moral appeals, they can now exert considerable political influence in some states, and they may manage to begin the process of adding a ban on gay mar­riage to the Constitution. It will be inter­esting to see if sectarian condemnations of homosexuality repel or attract people who are simply offended by gay mar­riage or gay sex for reasons having little to do with their notions of God. (It would be interesting to know how or if atheists and agnostics view gay rights differently than religious people.)

Religion will play a role in this debate indirectly, at least, by shaping people’s moral codes. That cannot be avoided, and in a free society an effort to suppress religious teachings is unthinkable. But so is an effort to impose religious teachings on a pluralistic culture, whether through the regulation of civil marriage or imposi­tion of official school prayer. These days, however, many Americans seem deeply confused about the difference between allowing the free exercise of religion and imposing religious practices on nonbe­lievers. In part, this confusion can be attributed to the public relations savvy of conservative Christians who describe their demands for religious power—like the power to force all students to recite or listen to daily prayers—as demands for religious rights.

And in part, confusion over sepa­ration of church and state is regular­ly sown by politicians eager to assert their own religiosity. The Constitution guarantees us freedom for, not freedom from religion, struggling presidential candidate Joe Lieberman recently pro­claimed. (Politicians never seem to tire of that canard.) Someone should explain to him that we enjoy freedom for our religions only when we’re free from the religions of others.

If gay marriage is prohibited because of a particular sectarian, not universal, aversion to homosexuality, then gay couples who want to marry, some of whom may belong to churches will­ing to sanctify their marriages, would enjoy neither freedom from nor free­dom of religion. How might religious conservatives who have been aggres­sively expanding their own religious rights to include, for example, a right to government funds, justify the denial of religious freedom to gay people? They might explain that any religion sanctify­ing gay unions is false. Their religion is true. God speaks to them, I guess.

Notes

*Katherine Q. Seelyle and Janet Elder, “Strong Support Is Found for Ban on Gay Marriage,” New York Times, December 21, 2003.


Wendy Kaminer is a lawyer and social critic. Her latest book is Free for ALL: Defending Liberty in America Today.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).


Eventually, the exclusion of gay people from the institution of civil marriage will seem as irrational and unjust as laws against interracial marriage; given the relative indifference of the young toward other people’s sexual orientations, time is on the side of gay rights. But, in the meantime, opposition to same­sex civil marriage seems a good …

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