Marriage Under Fire

Last year I wrote an article on same-sex marriage that was not published (in the Gainesville Times). Given the current action in congress, and Mike Freeman’s piece, I thought I’d give it another shot. I think Mr. Freeman is correct in assuming that there are two faces to this debate: the religious and the political. Although I think that the political arguments are mostly rooted in religion, I will deal here with the political, or more accurately, the legal side of this debate.

In the last paragraph of the article I wrote last year I stated, “If marriage, as God gave it to us, is perverted to mean whatever we want it to mean, I think the results eventually will shake every conceivable institution in the world—in ways that many have not yet imagined.” It seems I was not far off.

In December of 2005 The Becket Fund, a nonprofit institute dedicated to protecting freedom of religion, held a conference to discuss the legal ramifications of same-sex marriage. Ten of the nation’s top First Amendment scholars, liberal, conservative, and moderate, were brought in to present their views of same-sex marriage and the likely outcomes if it is legalized. As a result of the conference a series of papers was published.  These papers have been widely reported on in the last month. Publications such as The Weekly Standard, World Magazine, The New York Times, The Chicago Tribune, The San Francisco Chronicle, and many others have covered the results of this conference.

The conference focused on four topics: Can the government force religious institutions to recognize same-sex unions? Can the government withhold benefits, such as tax exemption, from religious institutions that refuse to recognize same-sex unions? How will freedom of religion arguments fare against legal same-sex marriage? What are the effects on biblical (traditional) marriage?

Mark Stern, general counsel for the liberal leaning American Jewish Congress and a supporter of gay marriage, writes in his paper, “No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage would, however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable.” According to Peter Steinfels, writing for The New York Times, what Mr. Stern has in mind are “schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses or services that operate by religious standards, like kosher caterers and marriage counselors.”

If you think this is far reaching, consider what recently happened in Massachusetts, the only U.S. state to legally recognize same-sex marriage. Catholic Charities of Boston is one of the nation’s oldest adoption agencies. It recently announced it was getting out of the adoption business. What was the reason? Catholic Charities refused to place children with same-sex couples. With Massachusetts now recognizing same-sex marriage, the charity found itself on the wrong side of the law. With Massachusetts requiring a state license to operate an adoption agency, Catholic Charities was forced to compromise their beliefs or get out of the business. They chose the latter.

George Washington law professor Jonathan Turley, also a supporter of gay marriage, in his Becket paper noted that, “As states accept same-sex marriage and prohibit discrimination based on sexual orientation, conflicts will grow between the government and discriminatory organizations. There will be many religious-based organizations that will refuse to hire individuals who are homosexual or members of a same-sex marriage. If those individuals are holding a state license of marriage or civil union, it will result in a discriminatory act that was not only based on sexual orientation, but a lawful state status.”

Doug Kmiec, professor of constitutional law at Pepperdine University, and an opponent of gay marriage, participated in the Becket conference and wrote, “Were federal equal protection or substantive due process to be construed to require states to license same-sex marriage, those who have profound moral or religious objection to the social affirmation of homosexual conduct would be argued to be the out-liers of civil society.” Therefore, he argues that churches could be targeted for legal penalties and disadvantages as were universities that participated in racial discrimination decades ago. He adds that, “This is hardly a far-fetched (idea), as apparently one of the main aspirations of the homosexual movement is retaliation against the defenders of traditional marriage.”

I hope Mr. Freeman, and others, can see that there are serious consequences if marriage, even as only the state views it, is redefined. One other point needs to be made. I think (or hope) that Mr. Freeman is wrong when he implies that those of us opposed to gay marriage would otherwise have no problem with homosexual relationships if they stayed “in the closet.” Admittedly, the view of many on both sides of the debate is that what goes on between consenting adults is no one else’s business. (It is noteworthy that we currently have many laws that restrict acts between “consenting adults:” laws against prostitution, polygamy, drug abuse, and so on.) The perils of homosexuality should be openly discussed whether or not we are talking about marriage.

There are other points to be made, especially the “religious” ones, but those must be for another time.

Copyright 2006, Trevor Grant Thomas

At the Intersection of Politics, Science, Faith, and Reason

Trevor and his wife Michelle are the authors of: Debt Free Living in a Debt Filled World

tthomas@trevorgrantthomas.com