John's Blog: Gay Marriage and the Constitution
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Gay Marriage and the Constitution
Let's be clear on one thing. "Marriage" is a very ambiguous term. Therefore, in this essay, I concern myself primarily with civil marriage, meaning when you are married by a Justice of the Peace instead of a religious clergyperson. No one's going to be forcing any religious institutions to perform same-sex marriages, whether they are civilly legal or not. Civil and religious marriage are pretty much separate issues, except that a religious clergyperson can be licensed by the state to represent the state during the ceremony. This enables the single ceremony to be have both the religious and civil significance, rather than requiring a separate ceremony for each.
One thing that I sense a lot of disagreement on in this whole issue is, what is is the government's proper role in defining marriage? In a government which in which church and state are separate (at least officially), what's the government's justification in defining marriage at all, and what are the its limits in doing so? The answer to this question has varied widely in different times and places throughout history. In 21st century America, the current consensus seems to be that the government's justification for maintaining a marriage institution is to encourage stable relationships. Many people would link the raising of children to that, although we can probably all agree that having more stable relationships is a better situation for society even without the addition of children.
So why limit this opportunity to heterosexual couples, when homosexuals also tend to fall in love and/or have sex, and/or raise children for that matter? All defenses of "traditional" (opposite-sex) marriage that I have heard ultimately derive from the moral and/or religious views of the person making them. To approve even of civil union, from what I can discern from the conservative viewpoint, amounts to condoning the homosexual orientation. (Note that I refuse to call it a "lifestyle", because I do not believe that it is.) And that, they cannot bring themselves to do.
While I support their right to their theology, I hope that we can all agree that it is not necessarily the government's role to protect the religious sensibilities of any one religious group, and indeed most conservatives do not go quite that far. They appeal instead to a "general" notion of morality, or "traditional" cultural norms. But is it even the government's role to "protect the general morality"? On the conservative side, it is true that the government has always had laws which are certainly informed by morality: laws against murder, theft, rape, pedophilia, etc. So does that mean the government *does* have some business legislating morality, maybe up to a point?
When asking about a government's proper role, the ultimate answer has to lie in the constitution of that government, the document by which the government has agreed to abide. Here's the preamble to ours:
We the People of the United States, in Order toUnder which of these points would making legislation concerning morality fall? (Disclaimer: I am not a lawyer; these are my own subject interpretations.)
do ordain and establish this Constitution for the United States of America.
- form a more perfect Union,
- establish Justice,
- insure domestic Tranquility,
- provide for the common defence,
- promote the general Welfare, and
- secure the Blessings of Liberty to ourselves and our Posterity,
- form a more perfect Union? This is so vague, I have no idea.
- establish Justice? For whom, by whose definition? Problematic.
- insure domestic Tranquility? Well, yes, things would probably be more tranquil if all of us liberals would just shut up and go home (but see the First Amendment). I suppose if there was sufficient outcry against civil unions, it could be likened to shouting "fire" in a crowded theatre in terms of its impact on domestic tranquility, but this analogy fails because someone shouting "fire" is not relative to the morality of its hearers.
- provide for the common defence? The more people feel welcome in our armed services, the stronger our defence, right? (Again, unless enough people are uncomfortable enough with it to undermine morale, which again is a moral issue on the part of the perceiver, and outside the scope of this essay.)
- promote the general Welfare? I think this is the strongest argument, see below.
- secure the Blessings of Liberty to ourselves and our Posterity? If you take "Blessings of Liberty" to be material and spiritual success, I think this argues for gay marriage or at least civil unions.
Looking through the "general welfare" lens now, we have on the one side proponents of gay civil unions, who can argue, quite rightly I believe, that lack of the same rights and benefits afforded to straight couples severely limits their particular welfare, and therefore that of the society collectively. On the other side, opponents claim all sorts of problems for general society if gay civil unions are allowed, which if they are correct, would undermine the general welfare. So the "general welfare" clause could both sides have valid constitutional claims.
Now, the impact of gay and lesbian couples of being denied the rights and benefits of civil union is easily imagined, and what's more, real and well-documented. In my view, the doom-and-gloom predictions put forth by opponents are less proveable and much less documentable. Nevertheless, I think this is at least a legitimate constitutional frame for the central conflict in America right now: Whether the "general welfare" will be better served by allowing gays and lesbians the rights of civil union (thereby improving their own welfare), or by continuing to deny them (thereby avoiding any supposed costs to society).
So where does the the debate go from here? I don't know how to convince people who are certain that the sky will fall if gay civil unions are allowed that it won't. But I don't think it will, and that's why I'm in favor of extending to gays and lesbians the same civil marriage rights as heterosexuals currently enjoy. If you disagree with me from a moral or spiritual standpoint, I respect that, but I also believe that the only justification the government has in determining this question is as it relates to the civil "general welfare", not what our opinion of the morality of it is.
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