Salon

A Legal Case for Same-Sex Marriage

Christians can welcome the positive legal protections of same-sex marriage laws.

In the past two weeks, both the Illinois and Hawaii legislatures have voted to permit same-sex couples to marry in their states, making them the 15th and 16th states to permit such civil marriages, and the 11th and 12th states to do so through democratic (rather than judicial) means.  Regardless of their moral views on homosexuality, Christians and non-Christians alike should rejoice that same-sex couples can now be treated equally under the law in these states.

First, what does marriage mean for gay couples?  It means that many tiny social benefits available to opposite-sex couples who choose to marry can also be available to same-sex couples.  Just a few of these benefits are joint federal tax rates; social security spousal death benefits; military veterans’ spousal benefits; family health insurance benefits; discounted car insurance rates; automatically inheriting property on the death of a spouse, and the privilege to not be compelled to testify against a spouse in a criminal trial.   These are just a few of many benefits that society extends to married couples because the state recognizes that stable family relationships are important to any society and should be generally encouraged.

Where same-sex couples have chosen to live as committed families, the law should permit them access to all the same rights and privileges as opposite-sex couples who have made the same choice.

The foundations of legal non-discrimination based on sexual orientation find their clearest roots in Lawrence v. Texas, decided by the US Supreme Court in 2003.  Lawrence overruled one of many anti-sodomy laws once prevalent throughout the country.  Lawrence principally held that the state has no place telling consenting adults how to conduct their intimate lives.  Far from endorsing any type of intimate conduct, Lawrence simply said that singling out the intimate practices of a group of people because of moral disapprobation, in the absence of demonstrable societal harm, is beyond the proper role of government.  Justice Scalia’s dissenting opinion rightly predicted that if it was not society’s role to regulate intimate relationships, it would open the door to invalidating laws against same-sex marriage as well.  Scalia was correct on that point, and ever since Lawrence there has been an emerging awareness that same-sex couples, regardless of anyone’s approval of their intimate conduct, deserve the same civil rights as opposite-sex couples.

Supporting the legalization of same-sex marriage does not necessarily involve a moral endorsement any more than the First Amendment requires a moral endorsement of pornography.  We can simultaneously disapprove of pornography and encourage citizens to take no part in it, while recognizing that (with a few caveats) speech must remain free, no matter how distasteful.  In the same way, even those who maintain a principled moral stance against homosexuality can support granting civil rights to those with whom they disagree.

Recognizing same-sex civil marriage is no tectonic shift in social policy.  It is hardly even a departure from our present civil marriage practices.  States have long extended the benefits of civil marriage to members of non-Christian religions, those who claim no religion, and even remarried divorcees.  In short, at no point in recent history (with the exception of anti-miscegenation laws) has approval of a person’s lifestyle been a prerequisite for allowing that person access to the legal benefits of civil marriage.  Indeed, even prisoners have a fundamental constitutional right to marry (Turner v. Safley, 1987).

Finally, the fact that many states now grant civil marriage to same-sex couples poses no danger to traditional doctrines of Christian marriage.  While states have the exclusive power to grant the former, they have no power to grant or deny the latter.  By their own laws, states can no more require a person to take communion than they can charge fees for baptism licenses or consecrate a Christian marriage.  Civil marriage confers property rights and civil privileges that no citizen should be denied who agrees to enter into a committed family relationship (with the advent of no-fault divorce, it need not even be a high degree of commitment).  Christian marriage, on the other hand, is a holy union of two believers .  These two entirely different institutions are just (confusingly) called by the same name.  While they coincide in many cases, I daresay a good number of opposite-sex couples who enjoy the legal benefits of civil marriage have no interest in any aspect of Christian Marriage.

Even aside from man-made law, if the sacrament of Christian marriage is truly a gift from God administered by the Church, no state has any ability to grant or deny Christian marriage at all.  My wife and I would be no less married before God without a certificate from the county clerk, and no Christian marriage will be at all harmed by any government body issuing more (or fewer) civil marriage certificates.

The states of Illinois and Hawaii only have the power to confer the legal status of civil marriage, and their democratically elected legislatures have voted to grant equal access to these rights to gay couples.  We as Christians should rejoice that more of our fellow sinners can now be treated equally under the human laws.  May we pray that our lawmakers continue to extend the equal protection of the laws to the poor and marginalized, regardless of whether we agree with their personal conduct.

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