Walking Down the Aisle

I've spent the day listening to all the CNN yack about "gay marriage" all day today. In many ways, this is nothing more than presidential affirmation of a kind of political hate speech, and I want to show you the ways that this works.

Civil/statutory law recognizes marriage as a domestic contract, with rights and responsibilities which are guaranteed and enforceable, as are all contracts. The state's interest in such contracts do not extend beyond the courts' protections of those rights and responsibilities and the determination that both parties have the necessary legal standing to make such a contractual relationship. In this regard, what Bush and the Republicans have done today is create a special class of people who are unable to enter into a contractual relationship which is guaranteed to all other competent adults. This is a human rights issue. Privileging straight people with rights unavailable to a discriminated class ought to be of concern to all of us.

I heard a long list of peculiar ideas of why sexual orientation is categorically different than race today, none of which have any merit in the area of torts, contracts and domestic law. The standard set by Loving v. Virginia which struck down the anti-miscegenation laws in the South ought to be the guiding precedent for lawmaking today in the area of domestic law. The argument that "this is the way we have always done it" privileges tradition over evolving social standards and the Constitution. If the state has an interest in stable families, how does allowing more of them threaten marriage? If marriage is under so much threat, how come we haven't criminalized infidelity? Why is divorce legal?

Since there is nothing in statutory law or the states' interests in prohibiting a marriage contract between consenting adults, the objections must come from someplace else.

Let's look at the theological arguments. While the Catholic Church does make this argument, it doesn't hold any water with a serious systematic theologian. If you look at the branch of theological studies called "theological anthropology," is the human person divisible in to classes of persons who have different standing with regard to their relationships with God, each other and all that is? The Catholic Church speaks with a forked tongue on this issue, calling the "homosexual state" "objectively disordered." This is the only class of persons so labeled by their very ontology, that is, who they simply are. The Church is willing to say the same about some behaviors, but only one class of persons is given this judgement by their very being. This does not hold up to objective anthropological scrutiny and condemns some persons to a secondary status by an accident of birth, genes or environment or some combination about which we still don't know much. We see gay people who desire and acheive loving, stable and committed relationships. The idea that they somehow fall into a secondary class of "grace" doesn't pass the smell test. If adultery, abuse, disparagement and all of the other indignities that people can visit on each other can be atoned for and forgiven and returned to a state of grace, the idea that there is a state of being which cannot be is nothing more than classism and cannot be taken theologically seriously.

Those who wish to make the Biblical argument are restricted to the Old Testament and I recommend some special study of the Book of Leviticus. Homosexuality is forbidden with the same set of prohibitions like dress codes which have fallen out of both Jewish and Christian mores. I believe we gave up the death penalty for adultery a while back. One the other hand, both traditions give pride of place to the Decalogue, the Ten Commandmants, in which we allow without state sanctions some behaviors which are clearly forbidden by God (and I'm speaking metaphorically here. We all agree that adultery is a categorically bad behavior, for example, but it isn't a felony any more than envy is.)

If the civil, theological and Biblical arguments for forbidding same sex marriages don't hold up, we are left with the last argument of scoundrels, "that's the way we have always done it." As the Supreme Court demonstrated in Loving, it is an argument which doesn't hold up either as a legal argument.

The state is forbidden from privileging any one theological argument over another, so the theological and biblical arguments are not available to the legislative branch in this case.

The lesbian couple down the block have exactly the same set of struggles to get the bills paid on time, schlepp the kid to the soccer league, figure out what to make for dinner and try to figure out when the laundry done that the rest of us do. Maybe they have sex a little differently (but not so much) than I do, but, so what?

We don't have a 50% divorce rate in this country because of gay couples, and you can take that to the bank.