Californians have already put to rest one of the biggest myths about gay marriage in American politics today: namely, that regular people don’t really care about the issue. Believe me, they do. The Yes on 8 campaign to overturn the California supreme court decision imposing gay marriage is generating an unprecedented amount of activism, attention, and involvement.
My friend and colleague Brian Brown just sent me an email with the subject “California burning”:
I’m overwhelmed here but thought you should see this news report.
I’ve never seen anything like this. In Orange County there are angry protesters screaming at Yes on 8 people on random street corners. Vandalism is widespread with our signs being removed an hour after being put up . . . or spray-painted with NO over Yes on 8 during the night. People are using paint to mark Yes on 8 or No on 8 on their cars and property.
I don’t know if the national media have caught on to just how central Prop 8 has become to this election in California.
By November 4th, the Yes on 8 campaign will have generated more than 60,000 donors, over 30 million dollars, and hundreds of thousands of volunteer hours on the marriage amendment. Voters in Arizona and Florida will also have a chance to weigh in on marriage this November 4th.
The campaign in California is centering on the question: will public schools teach gay marriage? Polls began to swing strongly in favor of Prop 8 once campaign ads began to suggest that if Prop. 8 loses, children will be taught in public school that two men can get married. Public schools are an important issue in itself but voters’ concern about them is also a proxy for the larger questions: How will gay marriage change what the next generation believes about marriage?
Why does the legal definition of marriage matter to so many people? Why are so many people of diverse creeds and colors coming together, and braving petty vandalism and pettier insults, to speak for marriage as the union of husband and wife?
The Meaning of Marriage
For many of us, the place to begin is to recognize one simple idea: government did not create marriage. Marriage has its roots deep in human nature, based as one Connecticut Supreme Court Justice recently wrote ”in biology, not bigotry.”
Marriage is a virtually universal human social institution. Despite hundreds of important variations, everywhere marriage has a certain recognizable shape: Marriage is a public union, not just a private union, it’s a sexual union not some other kind of union, between a husband and a wife (at least one of each) in which the rights and responsibilities of the couple toward each other–and toward the children of their union—are publicly defined and supported, and not merely left up to each individual to privately work out.
Marriage as a universal human idea has deep roots in three enduring truths about human beings everywhere: Sex between men and women makes babies, society needs babies, and babies need a father as well as a mother.
Put it this way: When a baby is born, there is bound to be a mother somewhere close by. If we want fathers to be there both for their children and the mothers of their children, biology alone will not take us very far. Clearly we need a cultural mechanism for connecting fathers to the mother-child bond, and for communicating to the next generation of young people in the throes of erotic and romantic dramas that they have a serious obligation to act in ways that will protect the children their bodies make together.
The word for this connection, in this and virtually every known human society, is marriage.
Marriage points to the great truth: men and women need each other, and our children need both of us. Not everyone has a mother and father, and we offer important protections and concern for children in all family forms. But marriage represents the visible incarnation of an important shared ideal—and a practical teacher of a great set of core truths. Marriage is civilization’s great effort to connect sex, love, money, babies, men and women, mothers and fathers.
If we let courts or politicians change this definition of marriage, this great historic cross-cultural meaning of marriage will be replaced by the new government dogma (er, legal principle) upon which gay marriage is based: There is no difference between same-sex unions and opposite-sex unions; anyone who thinks otherwise is just a bigot.
Our children will be taught this new dogma in hundreds of ways, and the old marriage idea—marriage matters because children need a mother and a father—will be publicly discredited as discriminatory.
Religious Liberty Conflicts
Same-sex marriage will also affect religious individuals and religious institutions. The relationship between the government and the major faith traditions of our country will change in ways that threaten the traditional liberties of these faith communities.
The religious liberty implications flow from the gay marriage movement’s attempt to make ”gay the new black,” to make orientation exactly the same as race, as the California Supreme Court explicitly declared.
Equality, especially racial equality, trumps religious liberty in our constitutional scheme. Indeed just a few weeks after declaring that same-sex marriage is a constitutional right (because sexual orientation is a protected class just like race), the California Supreme Court explicitly affirmed that the government has the right and obligation to punish a Christian doctor who refused to perform the insemination procedure on a lesbian couple. Treating two women in a union any differently than a husband and wife is now the same as discriminating on the basis of race under California law—and it is a well-established principle of law that religious beliefs do not give an individual or an institution a right to violate norms of racial equality.
Key leaders of the gay marriage movement understand that to move beyond tolerance—that is, to get to the place where orientation is treated just like race under U.S. law—they have to redefine marriage. As long as the law says ”marriage means a husband and wife,” the people and faith communities who also believe this cannot be treated as the moral or legal equivalent of the racists who opposed interracial marriage.
Taking the Interracial Marriage Analogy Seriously
The quickest way to see the impact of same-sex marriage and civil unions (which endorse the same legal principle) is to ask: How does the law treat racists who oppose interracial marriage?
We do not throw such people in jail. But the government uses a broad array of powerful tools to marginalize, stigmatize, and repress people who hold ideas that the government has defined as fundamentally counter to basic democratic norms of equality.
Licensing is one big arena. Catholic Charities was driven out of the adoption business after the Massachusetts court ordered gay marriage—because it is a felony to run an adoption agency without a license and the state requires licensees to treat a union of two men just the same as a husband and wife. As Prof. John Garvey, dean of the Boston College of Law succinctly summed up: ”State Putting Church Out of the Adoption Business.”
Similarly, the California Supreme Court recently said the government can punish a California physician for failing to inseminate a lesbian couple.
Other licenses may be effected, especially professional licenses—physicians, social workers, marriage counselors, psychologists, attorneys, and teachers.
State Tax Exemptions
The most powerful tool, short of the criminal law, that the government has is the threat of the withdrawal of the tax exempt status (state or federal) of schools and charities that violate fundamental public policy (such as racist organizations).
This issue has been litigated all the way to the Supreme Court, with regard to the issue of interracial marriage. A fundamentalist university that forbade interracial marriage and dating was stripped of its tax exempt status by the IRS. And the Supreme Court ruled that there is not First Amendment right to tax exempt status. The government can in fact punish religious groups in this way if they violate public policy.
In this regard it is chilling to note that within a few months of the passage of New Jersey’s civil union law, a Methodist group was stripped of part of its state real estate tax exemption because it refused to permit civil union ceremonies on property that it permitted any group to use for weddings.
The single best short guide to the legal consequences for Catholics and other faith communities of the legal endorsement of ”no different” equality though same-sex marriage is the new book Same-Sex Marriage and Religious Liberty: Emerging Conflicts whose editors include Prof. Douglas Laycock (one of the nation’s most respected religious liberty scholars) and Anthony Picarello (general counsel to the United State’s Council of Catholic Bishops).
The third editor, Prof. Wilson (who takes no position on same-sex marriage), explains that ”the demand for same-sex unions will result in a torrent of litigation, just as the assertion of abortion rights after Roe did, if legislatures fail to decide ex ante whether there is a duty to assist or, conversely, a right to refrain. Given the status of most churches and religious organizations as state nonprofits and federally tax-exempt organizations, public support arguments will surely be advanced to compel religious groups to participate in same-sex marriage. Thus, religious organizations in Massachusetts (and perhaps soon other states that embrace same-sex marriage)—as well as in states with domestic partnership or civil union laws—may reasonably worry that litigation will be required to defend their choice to refrain from participating in same-sex unions.”
The Washington Blade, one of the nation’s leading gay papers, recently took on the same question: ”Could churches in time risk their tax-exempt status by refusing to marry gays?” the paper asked. The nation’s gay newspaper of record basically came to the same conclusion as Prof. Robin Wilson: ”That remains to be seen and will likely result in a steady stream of court battles.”
In theory these negative religious liberty impacts could be addressed by legislation (as happened after Roe) granting broad statutory protections to religious groups. (For example, we could enact the following: ”No individual or organization will be punished by the government, or be denied equal access to any government benefit or privilege, because they define marriage exclusively as the union of husband and wife and confer special benefits or privileges exclusively on married couples so defined”).
In practice, gay marriage advocates have never been willing to accept any robust religious liberty protections in gay marriage or civil unions.
Why not? Two reasons: First, because such protections would imply that acceptance of same-sex unions is not obligatory to the same degree as opposite-sex unions. Second, because for many gay marriage leaders the goal is to use the law to reshape the culture to eliminate ”prejudice” (or perceptions of any difference between gay and straight unions)—just as the law was used to reshape culture on race.
Many gay marriage leaders, in other words, believe people who see marriage as inherently male-female are the moral equivalent of racists and should be treated legally, morally, and culturally just like racists who opposed interracial marriage.
For people who believe this, the religious liberty impacts aren’t a side effect of the legislation—they are the point. Marginalizing, repressing, and stigmatizing the voices of animus and prejudice is a big part of the goal.
Gay rights advocates, when the religious liberty threats are raised, will typically offer legally meaningless words that distract from the real legal threats—e.g. ”clergy will not be required to perform civil union or marriage ceremonies.” Such language merely echoes the limited protection the First Amendment of the U.S. Constitution already clearly provides, instead of addressing the real sources of the huge church-state friction ahead.
Clergy will not be put in jail for refusing to marry same-sex couples. The tax-exempt status of the pulpit itself is most likely quite safe.
But religious schools, hospitals and professionals will almost certainly face new legal pressures—from the withdrawal of equal access to government benefits to threats to licensing, accreditation, and tax exempt status—if marriage-equivalent civil unions or same-sex marriage bills are passed.
Is Marriage Good?
Of course from the perspective of our marriage tradition, comparing gay marriage and interracial marriage is comparing apples and oranges. Bans on interracial marriage were an innovation introduced after the Civil War in a limited number of states; they had no deep roots in common law or religious culture. Everyone acknowledged that a union of a black man to a white woman could be a marriage—which is why these unions had to be banned to maintain a racial classification system in the law. Calling same-sex unions ”marriages,” by contrast, requires the law to redefine the very meaning of the word, and to strip marriage as a public, legal status of its ancient, honorable, and distinctive relationship to responsible procreation.
Bans on interracial marriage, in other words, were about keeping two races separate so that one race could oppress the other—and that was bad. But marriage is about bringing together the two great halves of humanity—male and female—in part so that children can know and be known by, love and be loved by, their own mother and fathers—and that is a great and important good.
The future of marriage is in the hands of voters in California this Tuesday. A majority will have the chance to rebuke not only four activist judges, but an unprecedented campaign of harassment, name-calling, and disrespect aided and applauded by powerful figures (like Mayor Gavin Newsome and Attorney General Jerry Brown).
Voting Yes on Prop 8 will not deprive same-sex couples of a single practical right or benefit under California state laws. Civil unions will continue to provide legal protections for same-sex families.
But the people of California will recover their right to define marriage as a union of husband and wife, for generations to come.