In parts I and II, I looked at Christian teachings on marriage and homosexual sex. In part III, I examined why the decision to resolve the same-sex marriage debate by litigation over “marriage equality” rather than by political debates over individual liberty has generated so much conflict between Christians and gay activists.
In this part, I look specifically at how the legal arguments over same-sex marriage require the law to devalue marriage, ignore reality, and insult Christians and other religious believers.
The decision to seek a decisive nationwide resolution in the courts on equality-based grounds has encouraged the most divisive possible method of implementing same-sex marriage, doing so not by demonstrating the benefits of liberty or enlisting the voters but by 1) delegitimizing all the aspects of marriage that are seen as obstacles to equalizing same-sex marriage with opposite-sex marriage and 2) demonizing anyone who opposes this process as the equivalent of Bull Connor.
Recall that the legal basis for challenges to laws restricting marriage to one man and one woman are based on the Equal Protection Clause of the Fourteenth Amendment, which provides:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)
Now, there is no evidence that any of the voters or legislators who agreed to this amendment in 1868 had any reason to think they were outlawing the traditional American and Christian definition of marriage. Indeed, only a decade later, in Reynolds v. U.S., the Supreme Court held that the Western marriage tradition’s exclusion of polygamy was crucial to Congress’ authority to ban the practice:
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void…and from the earliest history of England polygamy has been treated as an offence against society…
From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. (emphasis added)
The Supreme Court’s seminal 1965 decision in Griswold v. Connecticut, which created a constitutional “right to privacy” that led the court to strike down a state law against contraceptives, likewise explicitly grounded the “fundamental” nature of that right in the history and tradition of marriage:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (emphasis added)
The Comparison to Interracial Marriage Bans Doesn’t Work
But even if we assume for the sake of argument that the Equal Protection Clause means, not what the people agreed to put in the Constitution but rather what modern judicial gloss has revised it to mean, the Constitution has always been read to permit the government to treat different things differently, so long as there was some rational basis for the distinction in the first place. (This recognition is precisely why the law has always treated the real, biological category of sex differently from the irrational category of racial classification, and why proponents of same-sex marriage have expended so much effort on appealing to special, extra-constitutional rules of burden-shifting, e.g., Romer v Evans, that in practice apply only in LGBT cases).
The common analogy drawn by supporters of same-sex marriage is to the court’s delightfully captioned 1967 decision in Loving v. Virginia, which struck down a law preventing interracial marriages between white and non-white people. But Loving is a terrible analogy. Race discrimination is, as the Loving Court noted, precisely what the Fourteenth Amendment was passed to combat:
The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States….There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races….The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy….While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. (emphasis added)
Unlike opposite-sex marriage, bans on interracial marriage were not deeply rooted in Western society; they were unknown in English common law and had no basis in the traditions of Christian Europe, and were introduced by a 1661 Maryland law that tied the ban directly to slavery. Seven of the original 13 colonies had no such laws at the time the Constitution was written (Pennsylvania repealed its in 1780), one that did (Massachusetts) had repealed it by the time of the Fourteenth Amendment, and most of the other five were under military occupation in 1868.
In fact, the social and religious importance of marriage was an essential part of the subsequent campaign against bans on interracial marriage. The first successful challenge to an interracial marriage ban, the 1948 California case Perez v. Sharp, was brought by a Catholic couple who argued that the ban infringed on their religious liberty to marry (citing among other things a 1937 Pius XI encyclical against Nazi theories of racial purity). A coalition of Catholic bishops filed an amicus brief in Loving opposing the Virginia law. And Loving itself grounded its view of the fundamental nature of the right to marriage in the connection of marriage to procreation, citing a 1942 case involving forcible sterilization: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
The Equal Protection argument is not about whether the case for same-sex marriage is better policy than the case against it; the argument in court is that there can never be any rational basis at all to oppose same-sex marriage. Thus, the courts can rule in favor of same-sex marriage only by issuing public declarations that the law considers everyone opposed to same-sex marriage to be an irrational bigot driven by an insensible animus. Courts have fallen consistently into the habit of doing just that. This is a scorched-earth strategy of total delegitimization. It is emblemized by the promiscuous deployment of the term “homophobic,” which literally seeks to diagnose anyone disagreeing with this legal and policy agenda, or holding scripturally-based religious views, as suffering from a mental illness.
Two Men Are Not the Same as a Man and Woman
Yet, as I have discussed at much greater length before, there very obviously are real differences between opposite-sex and same-sex marriage, and the courts therefore can reach the contrary conclusion only by declaring that all such distinctions are inadmissible in a judicial proceeding—that the rational-basis test is not permitted to consider any evidence that might disturb the desired conclusion. Undoubtedly, the courts have the raw power to do this, but it is a thin reed on which to hang the moral legitimacy of such a sea change in American law and culture, and Christians can hardly be blamed for deeming such judicial legerdemain itself irrational.
The core problem with dividing the aspects of marriage into the admissible and inadmissible is that it has the government’s interest in marriage precisely backwards, and in so doing, denigrates the basis for centuries-old public recognition of marriage to the point where there is hardly anything left to support it.
Marriage is both an intensely private relationship and a public, social institution of vital importance to the communities upon which government rests. This was once a commonly accepted distinction: whether or not you regard them as good constitutional law, the public side of marriage animated the Supreme Court’s decision upholding the ban on polygamy in Reynolds as inconsistent with the institution’s history, tradition and, social purposes, while the private side animated its decision in Griswold striking down the ban on contraceptives as an unwarranted government intrusion into the private domain of sex. Yet the arguments in favor of “marriage equality” contend that only the private aspects of marriage are of legitimate public concern (excluding, of course, the sacramental nature of marriage to a great many of its participants); the public aspects may not ever be considered.
Marriage, Public and Private
Marriage existed as a social and religious institution long before the government got involved in issuing marriage licenses, handling divorces and child custody disputes, and (with the comparatively recent invention of the income tax) granting favorable tax treatment to married couples. Yet the government’s relationship with marriage has grown along with the rest of government in the past century, to the point where it would be practically impossible to unscramble the egg.
But why is marriage the government’s business at all? Because marriage is an expression of love? You have never needed a government license to love someone, and let us all pray we never will. Because marriage involves sex? The government does have some interest in sex—for example, preventing coercive sex (e.g., rape, incest, sex with children). There are other public interests in sex—preventing the spread of sexually transmitted diseases, preventing the social conflict that can result from adultery—but outside of bans on prostitution, most Americans tend to view the public interests that might justify government policing of sex as being easily outweighed by the private interest in keeping it private.
It is hard to argue that the government has any particular interest in non-procreative sex between couples (of the opposite sex or the same sex) that would justify the thousands of federal, state, and local laws on the books that address marriage. Love and sex are by their nature the private side of marriage, the aspects of marriage in which the government has the least interest and from which it should be kept at the greatest distance.
By contrast, marriage is also a social institution, one that has built up a lot of social capital and respect in our society. The opponents of the traditional definition of marriage want to have this both ways. In the Proposition 8 litigation, the plaintiffs argued (and the District Court and the Ninth Circuit agreed) that the whole reason they had standing to sue—why they had an injury a federal court was empowered to remedy—was that same-sex couples were denied these social benefits for their relationship.
It might seem curious to justify courts changing the law solely to promote social respect. But it is a flagrantly disingenuous argument coming from litigants and judges who in the same breath argued that the very sources of that social respect—the history and tradition of the institution, its religious heritage, the extent to which it reflects the value judgments of the electorate—were wholly irrational considerations the courts must otherwise ignore.
The Public Interest in Marriage Is Children
Marriage is a public economic unit, although in the absence of children or the prospect of children, the public interest in the economic union of two adults is also fairly weak, beyond the enforcement of private contracts (which can be done with civil-union statutes). Traditionally, marriage was essential to the economic well-being of women because they lacked the opportunities to work to support themselves that men had. This remains true to an extent even today (statistically, married women are vastly less likely than unmarried women to live in poverty), due in large part to women being far more likely to end up as single parents. But if the economic interest in marriage is premised on the gender-equity consideration of a woman’s need for a man’s paycheck, that is a case only for opposite-sex marriage, not for marriages that involve either two men or two women.
In 1880, in Maynard v Hill, the Supreme Court explained that state legislatures have the power to grant divorces without running afoul of the Constitution’s prohibition on states abrogating contracts because the public, social character of marriage renders it something beyond a private contract:
[W]hile marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. (emphasis added)
Any way you slice it, the vast apparatus of marriage law and family law makes sense as a public enterprise of concern to the government and the law only if you consider the role of marriage as an institution for having and raising children. As I have explained at exhaustive length before, no matter how many aspects of marriage you rule inadmissible and no matter how hard you squint at the data, you simply cannot make same-sex marriage and traditional opposite-sex marriage the same thing once you admit that children 1) are the primary public purpose of the institution and 2) play a dramatically different role in opposite-sex marriage than in same-sex marriage (and in opposite-sex unmarried couples as compared to same-sex unmarried couples).
Without repeating that entire argument here, there are four basic reasons (aside from the gender-equity point noted above) why it is completely rational to consider opposite-sex couples different from same-sex couples for purposes of the public aspects of marriage.
First, opposite-sex married couples, for obvious biological reasons, are vastly more likely to have children. North of 80 percent of married couples in the prime childbearing years are engaged in raising children, two or three times the rate for same-sex couples even before you factor in the far higher frequency of opposite-sex couples having more than one or two children.
Second, the state has a much greater interest in encouraging marriage among opposite-sex than same-sex couples because opposite-sex couples are (again, for obvious reasons of basic biology) otherwise apt to have children outside marriage, at rates that have reached crisis levels for our society in recent decades. The state has nothing resembling a similarly urgent interest in whether same-sex couples get or stay married or not. Combined with the prior point, there is an enormous public interest in encouraging and maintaining opposite-sex marriage, and no comparable interest exists encouraging same-sex marriage (without which the nation survived its first two centuries).
Third, there is nothing irrational about the state treating both mothers and fathers as having something of value to add to a child’s life, and therefore maintaining that it is preferable for children, whenever feasible, to be raised in a home with both a mother and a father. It is a measure of the unreality of our current debate that it is considered a radical notion to value both motherhood and fatherhood.
We have a vast body of common human experience—vaster than anything a social scientist could ever hope to assemble, and covering a wide swath of elements of human experience that defy quantification—to support this value judgment, and the whole point of democracy is to let ordinary citizens draw on common experience. Marriage in every society in human history around the globe until about 1990 has been solely between men and women, and marriage in Christian jurisdictions over the past 2,000 years—including the whole history of the United States – has been not only male-female but one-man-one-woman (Christian societies have also generally dispensed with the pre-Christian and non-Christian practice of child brides, contributing to the stable nature of the institution over time). We also have an enormous bulk of social-science data (much of it from single-parent families, but not all, by any means) on the specific problems that fatherless or motherless children face, which is consistent with that experience.
Set against that is a hodgepodge of “studies” done only in the past 25 years, and designed primarily with the goal of promoting one side in litigation. Those studies are almost entirely derived from self-selected non-random samples, assembled and evaluated by people uniformly supportive of same-sex marriage. Such studies don’t need to withstand enough scrutiny to create a lasting consensus on the issue. They only need to preserve the appearance of one for another few weeks, because given how legal precedent operates, when the Supreme Court says there’s no rational basis for something, it will never, ever revisit that question no matter what subsequent evidence proves (recall that the courts have refused to reconsider whether the state of medical science on abortion has changed since 1973).
While LGBT activists claim that the social science derived from such studies is unanimously and permanently settled around the proposition that it is impossible for, say, a mother to add anything to a child’s life that two men could not provide (and they do indeed argue such things), as I explained further in my prior essay, this is both 1) an irresponsible overstatement of what the “scientific data” supports and 2) a dangerously undemocratic substitution of the value judgments and priorities of a small and unrepresentative coterie of like-minded social scientists for those of the ordinary lay voter who is supposed to have the final say on matters of such everyday experience as the raising of children.
Fourth, it is likewise at minimum an open question—given the fragmentary and often unfavorable data we have from countries and states with a decade or two of experience with legally sanctioned same-sex unions—whether same-sex unions as a group can or will sustain rates of family stability or monogamy that are at all comparable to those traditionally observed (even in today’s weakened state for marriage) in opposite-sex marriages. Indeed, the main criticism leveled at the major random U.S. study of the children of gay parents was that its random sampling contained too many broken homes and too few long-term stable same-sex households to justify drawing any conclusions. It would require an exercise in legal fiction to pretend that we have the kind of robust, stable data on this question to settle it forever as a matter of permanent constitutional law premised upon the impossibility of any rational evidence supporting a distinction rooted deeply in human experience.
The Problem With Pretending
In short, the equality argument, as applied to marriage, requires us to pretend something that is not so. If that is problematic as a matter of law and policy as applied to the public, secular aspects of marriage, it is even more so as a matter of daily life when Christians are asked to affirm the equivalence of same-sex relationships with the sacrament of matrimony. To say “this doesn’t affect your marriage” ignores how the whole reworking of the judicially admissible justifications for marriage embeds itself in our law and our culture. You cannot display an “equals sign” in your social-media profile without making a statement about the value of what’s on both sides.
To illustrate as a matter of faith and culture why the “equals sign” is particularly offensive to many Christians, consider an example. There is no question that, as a legal matter, I have a constitutional right to celebrate a bar mitzvah (technically, in Jewish culture, the bar mitzvah is what happens when you reach the age of manhood; the celebration just ritualizes social recognition of it). It’s an important ritual with significant and intertwined religious and cultural meaning.
But I’m a Christian. A bar mitzvah, as a distinctively Jewish ceremony, is not something I would want or be able to use. Have I been denied a basic human right, because young Jewish men had bar mitzvahs at age 13 and I did not? Or is the issue simply that we have unequal access to a bar mitzvah because it suits our lives and our faith in unequal ways?
What if Christians started insisting on giving their sons bar mitzvahs, but substituting Christian readings and professions of Christian faith, while insisting on retaining the term “bar mitzvah” and then deploying the machinery of the law to target anyone who took issue with this? I have to believe that many Jews, for perfectly valid reasons, would at a minimum regard this not only as an appropriation of their cultural heritage, but as something of a crude parody of it, would want nothing to do with it, and would be appalled at being hauled into court for refusing to participate in one. So it is, for many Christians, when the name and status of a ceremony that is sacred and sacramental in our own church and central to the practice of our own lives is appropriated to have a completely different meaning—then told that law and society disapproves of us even mentioning the distinction.
Ain’t No Rest For Lawyers
Reliance on the Equal Protection rationale also has a number of potential legal consequences, including some fairly immediate and specific risks for church and church-affiliated institutions like schools: that they could lose their tax exemption, as the Supreme Court ruled could happen to Bob Jones University in a famous 1983 Supreme Court case over its ban on interracial dating, if they treat same-sex marriage as different from opposite-sex marriage.
Is this a fanciful possibility? None other than the Obama administration’s chief lawyer admitted to the Supreme Court in the same-sex marriage argument that “it’s certainly going to be an issue. I don’t deny that.” Anyone remotely familiar with the Civil Rights Division of the Department of Justice should regard that as a not-even-barely-concealed threat. Indeed, stripping churches and religiously-affiliated schools, hospitals and charities of tax benefits and participation in public programs is already a popular cause among Progressive activists, and will doubtless be seized upon as a further reason to use administrative agencies and courts to impose legal mandates (like the contraception mandate), obstruct school-choice programs, etc.
There is more to come right around the corner, the unending march of which gives the lie to the idea that Equal Protection litigation is about “live and let live”:
After Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than place children with same-sex couples against its principles. Massachusetts public schools began teaching grade-school students about same-sex marriage, defending their decision because they are “committed to teaching about the world they live in, and in Massachusetts same-sex marriage is legal.” A Massachusetts appellate court ruled that parents have no right to exempt their children from these classes….Georgetown University law professor Chai Feldblum, an appointee to the U.S. Equal Employment Opportunity Commission, argues that the push to redefine marriage trumps religious liberty concerns: ‘[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the “zero-sum” nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.’ (emphasis added)
Additional legal consequences loom from the logic of 1) denying that children are a crucial part of the public interest in marriage and 2) denying any unique value to fatherhood or motherhood. Consider the impact on child-custody disputes, which despite the fervent hopes of utopian libertarians have no chance of ever being privatized and thus out of the hands of the courts. While many states’ laws have eliminated the old de jure preference for giving custody of a child to the mother, there is still such a presumption de facto—but a decision holding that the sex of a parent is an irrational consideration will give new ammunition to custody-seeking fathers, as family court judges will be faced with the U.S. Supreme Court lecturing them not to be irrational bigots who think mothers do anything that a father can’t replace. And custody battles raise new and thorny questions when existing laws are applied to same-sex couples:
At common law — to my knowledge, even now the law of almost every state — a child born into a marriage is presumed to be a child of the marriage. That is, the husband is presumed to be the father, the wife the mother.
Let us assume same-sex ‘marriage’ becomes the law of the land…In a ‘marriage’ between two lesbians, one somehow gets pregnant…Now, what happens when the actual father, the biological one, pops up and claims his parental rights? Each state resolves this question differently, but the underlying assumption is that the marriage at issue involves a male and a female, and that the female gave birth, and so the male is presumed to be the father, absent pretty impressive evidence to the contrary.
But in that lesbian ‘marriage’, should the other woman who despite our linguistic contortions cannot father children be presumed to be a parent? Should the standard for establishing paternity be lowered? Is she entitled to the presumption that the child is hers? Is that itself (or its contrapositive) a violation of the Equal Protection Clause (and state variants)?
These may all seem like dire and extreme predictions, just as predictions about courts imposing same-sex marriage did 10 or 15 years ago, but I ask you, if you are a supporter of same-sex marriage: what were you saying to yourself about my arguments just a few paragraphs ago? Were you resisting the idea that having a mother and a father is best for a child, or that any sensible person could think there’s evidence to support that? Were you saying to yourself that all this religious stuff is just cover for irrational bigotry? Were you telling yourself that everything I’m saying right now will go the way of the arguments for “separate but equal”? Because if you were telling yourself those things, and you want the courts to believe them (because believing otherwise means finding a rational basis for traditional marriage laws), you cannot well be surprised if the essential underpinnings of your argument end up as the law. And the engine of litigation never rests.
There is no requirement that the civil definition of marriage precisely track the religious definition; indeed, in a country that observes no religious establishment, it is often the case that the civil law is different from the religious. But when the law declares that two things are the same when they are not, and commands us to affirm and help celebrate a thing that is not so, its logic will inevitably compel us to conform our actions to that fiction.
This puts Christians to the test of their duty to avoid scandal. And when the law derides any request for respect for individual conscience as an invidious form of irrational bigotry, as many judicial opinions have done and as critics of religious-liberty bills have done, the stage is set for an existential struggle.
In a battle for liberty, Christians and gays can both win. But when the argument is over equality and the perspectives involved are in such dramatic collision, one side must sooner or later be found more equal than the other.
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