Series on Same-Sex Marriage: Final Post

This will be the last post of my Series on Same-Sex Marriage. I decided to leave the legal aspects for the end because in about two months the Supreme Court of the United States will decide two very important cases regarding this subject, Hollingsworth v. Perry and United States v. Windsor. Even though these cases are very different, the first one deals with California’s Proposition 8 and the other one with the Defense of Marriage Act or DOMA, they are both related to same-sex marriage.

The court could choose a broad or narrow ruling in the first case. It can say that California cannot ban same-sex marriages, while leaving unanswered the question for other states or the justices can say that shunning same-sex couples from marriage violates the Equal Protection clause of the 14^th amendment of the constitution, this will mean that no state can deny homosexuals the right to marry. In the DOMA case the court only has to deal with a single federal law which prevents the federal government from recognizing same-sex marriage licenses issued by individual states.

In the first case the justices will probably take the easy way out and dismiss the case because it lacks standing or make a narrow ruling applying only to California, I don’t think any justice wants to tell Alabama it has to issue marriage licenses to homosexuals. Some of the justices expressed a sentiment shared by many people around the country, that this question should be solved through the political process not through the courts and that states should be the ones to decide. Same-sex marriage in California will, more likely than not, remain legal, regardless of the court’s decision.

The case of DOMA seems like it will be a victory for defenders of same-sex marriage. The federal government has typically stayed out the marriage issue. If a state decided to allow same-sex couples to marry then the federal government should recognize that union showing respect for state’s rights. This should be an appealing idea to the conservative members of the court who are known for their defense of state’s rights. Jeffrey Toobin seems to get this one right when he says that “DOMA is doomed!” The fact that DOMA was drafted with the intent of discriminating against homosexuals, this can be seen from the debates which took place in the House of Representatives before passing the law, makes it harder for the court to uphold it.

Is it the job of the SCOTUS to wonder if a law does harm or good to children, or if it will be seen differently in different parts of the country? From the oral arguments one gets the idea that it is their job. In my opinion the justices should not be concerned with these questions. The attitude I would like to see from the SCOTUS is one similar to that of Hawaii’s Supreme Court “Whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it… works well or works ill presents a question irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional.”

Whether I think banning same-sex marriage violates the Equal Protection clause or not is irrelevant, since the justices will decide these cases more on the basis of their own beliefs and ideology rather than on constitutional analysis.

The conclusion which can be reached from these two cases is that same-sex marriage is being accepted by more Americans everyday. The court has seen this trend and will probably think it wise to stay out of the debate. Letting opponents and supporters keep their fight in the political arena instead of bringing it to the legal one.

Series on Same-Sex Marriage: The “Religion” Argument

by Carlos Diaz

RELIGION

In today’s debate about same-sex marriage it is assumed by many that religious objections are a valid argument against the proposed institutional changes. In this post I will explore some of the key arguments stemming from religious groups. I will also do my best to show how these arguments don’t merit serious consideration in a secular society.

The opinions of religious people are by no measure monolithic when it comes to this issue, even though most people who are part of an organized religion disagree with the legalization of same-sex marriage. Those who oppose the issue on religious grounds tend to cite The Bible or other religious text to prove their case, not only against same-sex marriage but even in opposition to the acceptance of homosexuality in general. They cite Genesis which claims God made man and then he created a woman so man would not be alone. Leviticus orders death as a punishment for several sexual behaviors including homosexual relations, which it calls an “abomination”. These are two of the most mentioned religious objections, but not the only ones.

The Catholic Church is the largest organized religious group in the world. The essence of the criticism which Catholics use in their disagreement with same-sex marriage is that marriage’s most important goal is procreation. Since homosexuals cannot procreate they cannot marry. The church’s doctrine regarding sex is a catch-22 for homosexuals. The sexual act, according to the church, must have two core elements: procreation and union. A homosexual man meets the first requirement when he engages in sexual activity with a woman, but he fails to meet the second condition because he cannot sincerely love her. If he is to engage in sexual conduct with a man, he meets the second condition, but since no procreation is possible, the first requirement is left unmet. The doctrine gets more interesting when the test of reason is applied. Why doesn’t this doctrine apply to sterile or older heterosexuals? The church simply says that in that case a miracle is possible. Apparently God’s omnipotence is not enough to perform a miracle in the case of homosexuals.

Can an individual profess to be a Christian or Jew and support the rights of homosexuals? According to conservative talk show host Dennis Prager if you know the Bible  and want to support gay rights your answer should be “I am aware that the Bible condemns homosexuality, and I consider the Bible wrong”. I hate to agree with Prager but he is right. Religion is intended to be taken literally and not, as many do nowadays, allegorically. Today most people would disagree with Prager’s statement because, as Christopher Hitchens puts it at the end of his book god is not Great, they “take their beliefs à la carte or cafeteria style, choosing the bits they like and discarding the rest.”

Many religious people miss what should be the main question when discussing the issue. What is religion’s role in marriage? The church and other religious institution do not marry people. People marry each other. When it comes to the legality of marriage, religion does not have a role. The state grants citizens a right to marry. This right then allows them to own property jointly and to make important decisions on each other’s behalf. To conclude I will add that in our society religion’s role is merely symbolic when it comes to marriage. At its highest point all it does is give those who are already married through civil institutions its blessing. At its lowest it serves as a place for newlyweds to take photographs and make their parents happy. Whether a religious institution wants to give its “blessing” to same-sex couples or not should not influence the debate over the legality of these marriages.

Series on Same-Sex Marriage: The “Tradition” Argument

by Carlos Diaz

     The issue of same-sex marriage is now more than ever in the public sphere. That is why I took the decision of focusing my posts, for a short period of time, on this issue. I will be writing several entries related to the topic over the upcoming days.

Same-Sex Marriage

     From the moment I became aware of the debate occurring around the question of whether to change the definition of marriage into a gender-neutral institution, I knew what side of the debate I was on. As most in my generation I chose to stand in the side of those who would like to see the right to marry extended to couples of the same sex. Most people who decide to take a position on this debate have no concrete argument to defend their opinion, I was no different. Listening to the oral arguments of the latest Supreme Court case dealing with same-sex marriage, Hollingsworth v. Perry, encouraged me to dig deeper into this most recent of the so called culture wars. In the following posts I will share my findings. During my research I encountered arguments from different parts of the political spectrum, both in favor and in opposition of same-sex marriage. It is not as right v. left as we might be led to believe. I will write a series of essays dealing with various aspects of this issue, including tradition, religion, purpose of marriage, the slippery slope argument, and most important of all to today’s debate, legality.

Tradition

     Some of the most common arguments used in opposition to same-sex marriage are, that it is somehow unprecedented, revolutionary, and that it will radically change the definition of the bedrock institution that marriage is. The first of the concerns is erroneous; same-sex marriage is not unprecedented. The second is somewhat true, the idea of allowing homosexuals to marry can be considered conservatively revolutionary. The third argument can only be accepted if one is not aware of the true history of marriage.

There is enough evidence to believe that same-sex marriages were held in societies of the past even Christian ones. In his book ,Same Sex Unions in Premodern Europe, Yale historian John Boswell describes rituals which were held in Medieval Europe during the 12^th and 13^th centuries with the purpose of creating a union between two men. There are many accounts that some Native American communities practiced same-sex marriages. One of the most well known accounts was written by the Spanish explorer Álvar Núñez Cabeza de Vaca. There are also cases from places in China which were recorded by the historian Hu P’U-an. There is vast documentation of practices occurring in Africa in a book titled, A Note on Woman Marriage in Pahoney. I don’t use these examples as a justification for same-sex marriage, but simply to discredit the argument that such an idea is unprecedented.

Another criticism of same-sex marriage is that it is revolutionary. I am inclined to disagree with this argument. My disagreement stems from an obvious fact. Asking for permission to participate in a very traditional and conservative institution as marriage is not an utterly revolutionary thing to do. When talking about revolution it is best to quote Karl Marx, “man was not freed from religion, he received religious freedom. He was not freed from property, he received freedom to own property….” Using this same language it could be argued that homosexuals don’t want to be freed from marriage, they want to be given freedom to marry. In other words a revolutionary move is what many on the left argued for before the AIDS epidemic transformed the movement, emancipation from marriage for both homosexuals and heterosexuals. The current argument about this issue is better represented by conservatives like David Brooks and Andrew Sullivan. They argue that allowing people to enter an institution which promotes stability, fidelity, monogamy, and commitment should be a core conservative value which will strengthen the institution.

Marriage is a bedrock institution and it has been around in different forms for thousands of years. But what those who argue that allowing homosexuals to marry will signify a radical change don’t understand is that marriage is not a dead institution, it is alive and constantly changing. For most of history marriage was not about love or raising children. It was an institution whose main use was acquiring wealth, power, property, and creating alliances. Allowing homosexuals to marry will not be a revolutionary change to the institution. It will simply be another change in an institution which has gone through many changes since its inception. What I think is happening today is that marriage has arrived at a point in which the main concern is neither child rearing nor wealth accumulation. The institution today is much more tied to love than ever before, this argument is presented beautifully in a book, which does not deal at length with same-sex marriage, subtitled How Love Conquered Marriage. If marriage today is about love- I believe it is- then there is no excuse for not allowing homosexuals to enter the institution of marriage.