Thursday, August 02, 2012

A Common Sense Constitutional Argument for the Legality of Same-Sex Marriage in the United States

Most of this is pretty obvious (and/or was established by the Prop 8 decision in California), but I decided I wanted to write it all out for the next time I argue about it with someone from high school on Facebook. I am not a lawyer, clearly, and if someone with more expertise in civil law than I have can disprove these statements legally, please, don't spend your time leaving a comment:  The pro-Prop 8 lawyers need you, and you should get in touch with them instead.

1. The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

2. Because we do not have any officially established religion, whether Christianity or Hinduism or Islam or Shintoism or Wicca, our government's laws are not and should not be dictated by any religious laws or prohibitions.

2A. We have a civil government and not a religious one.  

Opinion: This is right and good for everyone, including religious people, because it enables multiple religions the freedom and protection to flourish, and also frees people to choose not to practice any religion at all. Certainly each religion may believe it is the only right and true one; but it must win influence through speaking to the hearts and minds of individuals, not through imposing its will upon everyone.

Opinion II: Do not bust out that the "Founding Fathers were Christian" stuff. Many of the Founding Fathers were Deists at most; all of them were well aware of the corrosive influence of religious and denominational wars in Europe (because, indeed, many of their ancestors came to America to escape those religious conflicts or persecution altogether); and if they did intend the United States to be governed by Christian law, for some reason they did not write it into the Constitution, which means it's not part of our law now:  "no law respecting an establishment of religion" is.

Opinion III: As I understand it, the Judeo-Christianist opposition to homosexuality arises almost entirely out of Leviticus 18:22 and 20:13, which declares "men lying with men as they do with women" "detestable" or "an abomination." While the exact translation of these verses is much debated, I think it's perfectly fair for Christianists and their fellow fundamentalists to use them to judge others' behavior . . . so long as they hold to that same ancient Leviticus standard in their own behavior, meaning they should not wear clothing woven of two kinds of material (19:19) or cut their sidelocks or beards (19:27), and women should be considered unclean and isolate themselves during their periods (15:19-33). [Ideally in this scenario, adulterers would be put to death (20:10), but our civil law prevents that.] Otherwise, these fundamentalists are being inconsistent in their application of the law. I do not see many non-Hasidic people, and especially many Christianists, abiding by these standards. 

3. While a marriage may be conducted under or ratified by a religious body, it has civil and legal ramifications regarding rights, property, and responsibilities.

3A. Therefore it can and should be regulated by civil law (and indeed, for heterosexuals, it already is). 

4. The Fourteenth Amendment reads, "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 mine).

5.  Right now, our federal civil law grants only heterosexuals the right to marry the people they love.

6. This means that gays and lesbians are being denied that equal protection of the law, and having their privileges abridged.

N.B. Two LGBT people who wish to be married love each other with the same strong romantic feelings as two heterosexual people who wish to be married. (Opinion:  I include this because the Biblical focus on sex often means that people opposed to this appear to ignore the love; and they should consider what it might feel like to have the government prevent them from legally uniting with the person of the opposite gender whom they love, and thereby gaining all the rights that marriage grants.)

7. As this is a violation of the Fourteenth Amendment, same-sex civil marriage should be legal.

8. No heterosexual person's rights will be infringed or marriage will be diminished or damaged by this.

9. As per the free exercise clause of the First Amendment, the government cannot and should not force religious bodies to conduct same-sex marriage ceremonies. 

That is all. 


  1. Hi Cheryl,

    I'm a lawyer / YA writer out in California. Great nuanced post - down to the very last point!

    I've always found it fascinating that de Toqueville advocated the separation of church and state not only to protect people from the tyranny of religion, but also to protect religious bodies from the state.

  2. This is well though-out and hard to argue with. I do, however, have to point out that your "opinion III" is a common misconception among people who do not understand a Christian's stance on homosexuality (or sin in general, actually). It is not limited to the words in Leviticus, but is a belief based on the entirety of scripture, both old and new testaments. Genesis 2 and Romans 1 come immediately to mind.

    This is not to make an argument, but just to help explain a Christian's view on homosexuality.

  3. Hi Cheryl,

    I've always admired your work. This is a great post.

    However, as a deeply passionate person of faith who loves Christ, I did want to make an attempt at clearing up a few things regarding the Christian view of homosexuality. Rebecca touched on it already just above. The argument you present regarding the ancient laws of Leviticus is common and often the first place some Christians go if trying to argue against homosexuality.

    If this is the case, and as you point out, they should also adhere to the other laws presented in Leviticus. As I'm sure you and many Christians already know, today's Christians are not under the old Law of Moses. Christians recognize Christ as the fulfillment of that law, which, thankfully, means we do not have to follow such stringent, and seemingly ridiculous, laws today. God was crafting an incredibly detailed, intricate plan that required him intervening directly (through Christ) to provide the world with an opportunity for salvation and a more fulfilling life on earth.

    I would agree any argument a Christian has against homosexuality shouldn't be rooted primarily in the Old Testament. Rather, we should look to the New Testament in this regard. Ironically, homosexuality isn't directly referenced at all in the New Testament and only 3 passages somewhat allude to it.

    The passage that stands out most to me is Romans Chapter 1. I prefer not to post the standalone verse as it's really important to read the entire chapter for context, especially in this case. In short, it refers to men and women exchanging their natural orientations for "unnatural ones." As with many biblical verses, interpretations are highly debatable. Matthew Vines, a gay Christian, would argue that the people referred to in these scriptures were heterosexual by nature. He would argue the reason the bible refers to their homosexual acts as "unnatural" is because for was unnatural! It went against their very nature, which was heterosexual. He has a fascinating discussion of the subject, which you can view online here:

    Honestly, after watching Matthew’s video several months ago, I’m still not sure what I personally believe. And frankly, this is what many Christians are going through during this modern era. They’re struggling to understand and as a result, the outside world sees a very strict interpretation of scriptures manifest itself in the form of hate. I cannot speak for every Christian, nor do I claim to be an expert on Scripture; however, I know true followers of Christ have their heart in the right place. Regardless of how they interpret the biblical verses on homosexuality, they see it as doing the “right” thing to follow Christ.

    Wow, this went slightly longer than I expected! I just felt the need to post, especially for those who may have a misconstrued view of Christianity based on a radical or misguided (maybe even with good intentions) Christian. As I stated above, I’m not quite sure where I come down on homosexuality debate. Because of my uncertainty, I look to the absolute truths I know from Christ. In comparison to the numerous laws of the Old Testament, Christ gave only two commandments (and I paraphrase slightly): 1) Love God and 2) Love people. I don’t know if God sees homosexuality as sin, but I know with absolute certainty he sees hate as a sin. And for that reason…I choose love.

    1. Jonboy,
      Matthew Vine's presentation is very flawed. Google lists over a dozen critiques of it, many of which are very insightful, EG

  4. This is excellently stated. And I'm coming from the point of view of a Christian who believes that revelation didn't stop when the biblical canon was closed, and God is constantly challenging us to grow and learn in our perceptions of love. Some day, I do hope some day, all will be able to marry regardless of their love orientation.

  5. I am compelled to post because I used to think like you. Live and love. But my thinking has evolved significantly over the past few years. From the view of natural law, marriage is an institution for creating a family. A human baby is created from the union of a man and a woman, not two men, nor two women. Granted that these babies can be adopted so couples who are infertile can also have the joy of raising a child. But I digress.

    We make laws to promote good in society. No fault divorce, fornication (both hetero- and homo-sexual) have all undermined the family.

    Let marriage be as it has been defined for centuries. If anybody can marry, the word itself becomes meaningless. Consider this story and commentary:

    I rather like the Catholic word for marriage: Holy Matrimony -- if you parse it, it means "sacred and set apart" and "state of being a mother." This is the purpose of marriage.

    God bless.

  6. Vijaya. Not to be the sort of irritating person that does all that obnoxious arguing in the comments and eventually starts using creative but unlistened-to insults and so forth, but I think you are wrong. And I am compelled to tell you about it.

    There are lots of couples who do not create human babies. Heterosexual couples.

    Who also deserve the right to visit one another in the hospital and create sensible married-couple financial decisions, amongst other things. End of argument! Unless you're marching around demanding that a barren, elderly couple divorce so that the word "marriage" can return to its original meaning of "baby-making", it just ain't a good argument.

    I also find it hard to understand why so many people are concerned about the dictionary definition of "marriage". This seems to be a huge argument -- I'd no idea there were so many wordy Conservatives. Why aren't we seeing more people obsessed with other words in Merriam-Webster's or Oxford's? Why are people not salivating at the mouth to fix the fact that "wicked" has worked its way into modern slang and therefore, become meaningless as well? After all, when I say, "that's wicked!" perhaps I'm influencing others to wicked behavior. Perhaps. Maybe you should be protesting that.

    Also, "fornication" is a terrible word that makes me think of Fred Phelps and a YA novel I once read called "My Name Is Not Esther". That's a dictionary word that I would like to cut out of the dictionary.

    Also, women marrying themselves have nothing to do with the above, because they were born with the legal right to visit themselves in the hospital and make financial decisions. So, that means we're all married to ourselves! How wonderful! The word "marriage" truly must mean nothing at all; it never meant anything in the first place!

    I rather like the Catholic word for marriage if you are Catholic. If you aren't, it seems a bit absurd, at least if it means what you say it means. But wait! Let's look it up in the dictionary!

    "Holy" means "dedicated or consecrated to God".
    "Matrimony" means "the state or ceremony of being married".

    We must have different dictionaries! That explains everything!

  7. Thank you, all, for the thought-provoking and civil comments thus far. I grew up in a Southern Baptist church before joining my present extremely liberal Methodist church, so the primary prohibitions I heard against it were those in Leviticus, which is where my mind goes on this; and I will think about what you say, Rebecca and Jon.

    I must disagree with you, Vijaya, simply because there are many, many married couples who remain childless, either by physical difficulty/inability or by choice, and that does not nullify their marriage or make the commitment less purposeful. And a law that allows two people to commit to each other for life, and encourages them to do so by granting certain benefits single people don't have, seems like the creation of a good in society in increasing its stability (and decreasing fornication, to use your word).

  8. (Have realized I may have come off as a bit irritating/hopefully-not-offensive-but-possibly-offensive; sorry if 'twas the case. I have a big mouth. This extends to fingers on keyboards. I also feel very passionate about this issue and often have trouble understanding people who aren't okay with gay marriage.)

    I do wonder if there could be an additional way to argue Opinion III, since that seems to be the one that people have most trouble with. I don't pretend to know the Bible very well (though I do consider myself a Christian), but there must be a way of arguing it, since of course the Bible is a translation and isn't exactly as it was written thousands of years ago. Jonboy's explanation (of unnatural orientations in reference to heterosexuals) made a lot of sense to me. Since the Bible has to be interpreted, I would think explanations like his would also have to make sense to non-gay-marriage supporters, at least to some extent.

  9. Cheryl, I completely agree that not having children does not nullify the marriage covenant. In almost all cultures I know of, marriage has always been between a man and a woman (and several women sometimes, but that is a separate topic) because the family is the unit of society, and this arrangement is the best for raising children, the new generation.

    History has shown that all sexual activity outside of marriage harms society.

    I cannot imagine how difficult it must be to be attracted to a person of the same sex when it is not acceptable in society. Likewise, it must be difficult when you are heterosexual and cannot find the right mate. I think we are all called to be chaste if we cannot marry.

    I am a new convert to Catholicism so have spent a great deal of time shedding my thinking that I know what is best (for me or others). I don't. I look to the wisdom of the Church fathers, and try to share it as best as I can.

    God bless.

  10. Cheryl, I think you have one of the most brilliant minds in the publishing world today, and it encourages me to see you exploring here the hard topics such as those so often encountered in the books you edit.
    I just want to say that even though I disagree with the points that you reach, I am impressed with the professionalism and civility of your post and responses.
    I will only add to the conversation by pointing out that while there are many Christians in the world--such as most Southern Baptists, I believe--who would demand that an argument for or against a point must be found in the bible, there are millions--such as myself and other Catholics, Anglicans, and others--who consider the bible only one source of what we believe and profess. This latter group acknowledges the danger of interpreting the bible for ourselves (we rely also on centuries of teaching and holy tradition, theology and philosophy, or natural law as Vijaya brought up), particularly because it is so easy to take anything out of context and use it to justify our own opinions. People in the eighteenth and nineteenth century used the bible to justify slavery and declare that blacks were not human. People today use it to justify their violence against homosexuals, completely ignoring the bits about loving our neighbor, or even, "let him who is without sin cast the first stone."
    I guess my point is that same sex marriage is a very complicated issue that would be hard to argue for or against in a mere blog post and comment form--so I won't try to argue. I've always admired the way you search out truth, and I hope this gives you some insight the opinions held by millions of Christians worldwide.