Maureen Dowd argued in Sunday's opinion pages of the NY Times that achieving legal recognition of same-sex marriage is the "civil rights issue of our time." The editorial posted below makes the case that what happened in Albany over the weekend is worthy of celebration, though it does not "erase the bigotry against gays and lesbians enshrined in the federal Defense of Marriage Act...."
The language of civil rights is as weighty and forceful as any used in contemporary American public discourse. As Christians, it is imperative that we are not on the wrong side of protecting civil rights, finding ourselves instead on the side of bigotry. Any thoughts?
-NB
The New York Times. "Gay Marriage: A Milestone." (June 26, 2011).
By The NY Times Editorial Board
New York State has made a powerful and principled choice by giving all couples the right to wed and enjoy the legal rights of marriage. It is a proud moment for New Yorkers, thousands of whom took to the streets on Sunday to celebrate this step forward. But this moment does not erase the bigotry against gays and lesbians enshrined in the federal Defense of Marriage Act, which denies federal recognition of same-sex marriages and allows any state to refuse to recognize another state’s unions.
Though there was unnecessary secrecy in the negotiations, Gov. Andrew Cuomo made a determined effort to achieve marriage equality in New York. He shares credit with the four Republican state senators who bucked their party and threats from conservatives to do what they knew was right. State Senators James Alesi, Roy McDonald, Mark Grisanti and Stephen Saland, all from upstate districts, deserve the support of their communities. They showed the kind of strength that is extremely hard to find in today’s politics.
In drafting a compromise, however, Senator Saland and other Republicans insisted on language that carves out exceptions for religious institutions and not-for-profit corporations affiliated with those religious entities. That provision allows those tax-exempt entities to refuse to marry a same-sex couple or to allow the use of their buildings or services for weddings or wedding parties. There was simply no need for these exemptions, since churches are protected under both the federal Constitution and New York law from being required to marry anyone against their beliefs. Equally troubling, an “inseverability clause” in the act appears to make it impossible for any court to invalidate part of the law without invalidating the whole law — raising questions about what happens to couples during an appeal.
While some civil rights advocates are optimistic that these provisions are relatively minor, we are deeply troubled by their discriminatory intent. The whole purpose of this law should be to expand civil rights without shedding other protections in the process.
The marriage equality law was such a powerful finale to this year’s legislative session that a few other important measures may be relegated to the footnotes. Lawmakers passed a limited ethics bill for legislators and statewide elected officials, a modest expansion of rent regulations for millions of New York City residents, an important five-year tuition plan for the state’s universities — all moves in the right direction.
The one big misstep is a property-tax cap of about 2 percent a year that will severely hurt schools and services in poorer communities.
This legislative session will be remembered for New York’s acceptance of same-sex marriage, a milestone in the national fight for this fundamental freedom. Five other states, along with the District of Columbia, allow same-sex couples to marry. But more than three dozen states define marriage as between a man and a woman. For gays and lesbians, the battle for freedom from discrimination continues.
CIVIL RIGHTS AND INSTITUTIONAL IDENTITY
ReplyDeleteScenario 1:
A 13 year old high school student who does not have a diploma (he is only a freshman) applies to Harvard University. Is it illegally or immorally discriminatory to deny him admission based on his age and lack of diploma? Has a civil right been denied?
Scenario 2:
A Muslim man walks into a church affiliated with the Southern Baptist Convention and demands permission to fully participate in the life and practices of that body while simultaneously petitioning the pastor to promote the 5 pillars of Islam. Is it illegally or immorally discriminatory to deny him admission based on his desire to continue life as a Muslim? Has a civil right been denied?
The vast majority of people including, presumably, the Editorial Board of the NY Times would not label either of these scenarios civil rights violations? Why? Intuitively most people have a sense that institutions have a nature and a purpose and if an institution is unable to maintain an ethos that conforms to that nature and purpose, then it ceases to exist. The nature of Harvard is that of an educational institution of higher learning with a purpose of bringing its students to a certain level competency in a particular field or skill-set for application in a vocation and/or profession. No civil right of the 13 year old high school student was violated because the boy was unfit for admission to that institution, that is, if that institution is allowed to preserve its integrity (its nature and purpose). When the student graduates high school he will be eligible to apply to Harvard and be measured alongside his peers per Harvard’s admissions criteria. Scenario 2 is similar but the Muslim man is unfit to be a full participant of the church in a different way than the 13 year high school student was unfit for Harvard. The nature and purpose of a church body is to visibly gather a people who seek to follow and worship Christ and bear witness to his coming kingdom. By definition, a congregation locating itself within the historical and transnational Body of Christ does not practice/promote Islam and to be a full participant in this congregation, one cannot continue to hold to a Muslim identity. The Muslim man, therefore, has two options (many more actually). He can become a Christian and a full participant in the church, or associate with other Muslims in whatever ways he can in order to unite with the nature and purpose of that community.
In sum, institutions have identities that matter if distinct institutions are to continue to exist. The constitutional concept illustrated above is the freedom of association. Institutions are legally recognized and protected in such a way that they can maintain their integrity vis-a-vis their nature and purpose. People are permitted to “associate” and form diverse institutions if and how they so choose.
Marriage, from government’s perspective, is an institution that should be permitted to maintain the integrity of its nature and purpose. Marriage is distinct from same-sex unions and other types of interpersonal relationships and originates outside of the relationship between government and citizens (as do many other institutions). To deny anyone admission into the institution of marriage when they don’t want a marriage is like denying a Muslim man full participation in a Baptist church when he doesn’t want to be a Christian. It is simply the most rational view.
DEFINING THE TERMS OF THE DEBATE
ReplyDeleteMany will immediately say that I’m making a circular argument about the definition of marriage. It goes like this: if I presuppose that marriage is defined as a lifelong, monogamous, publicly declared union of a man and a woman, then of course I can claim same-sex couples are denied access to marriage. But, they will contend, many people define marriage as the union between two (at least presently) consenting adults in a loving, life-long relationship consisting of physical and emotional intimacy. I don’t agree that marriages and same-sex unions are the same “things” so it is appropriate to assign different terms to them and to view them as distinct institutions or arrangements. We call a dog a “dog” and do not call a cat a “dog” not because we’re irrationally deciding to discriminate against cats but because there are objective differences between cats and dogs and so it makes sense to distinguish them with our use of language. It is important to view (and describe) different things differently.
Many will then say, okay so what is the difference? On this point I won’t go into a discussion on the sacrament or institution of marriage from a Christian perspective because I won’t be able to do it justice here. I’ll just say that Scripture and Tradition point to marriage as a picture of Christ’s relationship to the Church (and vice-versa). I think JPII even went as far as to say that the “marital embrace” can offer insight into the inner reality of the Holy Trinity. The institution of marriage for Christians has such significance that any discussion about government’s legal protection and recognition should be seen as an important secondary matter. Christians must practice and encourage rightly ordered marriages and be ever mindful of the deep meaning given to marriage by God. To communicate this depth of reality about marriage to those outside the body of Christ we must first invite them into full participation in the body of Christ.
However, the issues I’m about to address must be communicated to the broader society in which we live and are not necessarily contingent upon an explicit prior invitation into communion with the church.
DISTINGUISHING MARRIAGE, SAME-SEX UNION, AND THEIR DISTINCT SOCIAL SIGNIFICANCE
ReplyDeleteBack to the question, what is the difference between marriage and same-sex union? The answer Maureen Dowd, the NY Times Editorial Board, and many many others give is the following: there is no meaningful difference and only bigots against homosexuals would think otherwise. Bigotry is a serious accusation in our society and for good reason, but as the scenarios illustrate, not all discrimination is premised on bigotry. There are two legitimate differences between marriage and same-sex union that should be proposed to the broader society. First, union of husband and wife can involve intercourse. Union of man and man or woman and woman cannot. Marriages involve a complimentarity of the body absent in homosexual relationships. Second, and related to the first, union of husband and wife can produce children. Union of man and man or woman and woman cannot.
The clear follow-on question for the current marriage debate is, does either of these distinctions justify a compelling interest of government to legally protect and recognize the union of husband and wife and not same-sex union? The logic of this question stipulates that a related question be asked. Why should government be involved in any interpersonal relationship in the first place? Many libertarians would immediately argue that government should not be involved in marriage at all. Although I think this position is preferable to that of advocates of same-sex marriage, I think the position I take calling government to properly recognize the institution of marriage is superior to both.
Same-sex unions do not merit the legal rights and benefits associated with marriage because children are the reason government has a compelling interest in marriage relationships in the first place. Children are better off in nearly every conceivable way when raised in the home of their married, biological parents. The socio-economic analysis on this is crystal clear. As anyone with any knowledge of or experience with impoverished inner city neighborhoods can attest, a critical mass of children raised largely outside of this family form tend toward social pathologies at much higher rates than their peers raised in localities where this family form has a stronger presence. The government has a compelling interest in marriage because the social order is exceedingly more healthy when more children are raised by the man and woman who came together to create them.
Furthermore, government has a compelling interest in marriage because marriage promotes monogamy among heterosexuals. Therefore, not only should government care about marriage after children are born, it also should care about heterosexual sexual behavior among its citizens prior to the generation of new life. Again, heterosexual sex can produce new life, and despite what the ardent contraception crowd claims, contraception still fails at surprisingly high rates. The government has a compelling interest in promoting monogamy among heterosexuals because when non-married people produce unwanted children, the government is concerned for all the reasons stated above. Homosexual, adult relationships are simply not as consequential from the government’s perspective. Same-sex unions never create new mouths to feed, new citizens, new criminals, new leaders, etc., etc., etc.
In sum, heterosexual sex is much more significant to the government than homosexual sex because the former can produce new life. Second, children are much better off when, to the extent possible, they are raised in a family with their biological mother and father. Therefore, encouraging life-long monogamous relationships among heterosexuals is a legitimate objective of the government. Extending legal recognition and protections to the institution of marriage is one important way for government to do just that.
VALID CONSIDERATIONS THAT REQUIRE FURTHER DEBATE
ReplyDeleteIf there are particular marital benefits that seem relevant to non-marital unions (whether or not they involve sexual activity) then the case should be made for those particular benefits based on the nature and purpose of the particular relationship that would receive such benefits. As for same-sex couples who adopt children, I don’t believe the government should legally promote adoption by gay couples by relabeling same-sex unions with adopted children as eligible for marriages. Conversely, government should not legally prohibit adoption by same-sex unions either. As for heterosexual couples being allowed to legally marry even though they face infertility, when these couples sustain life-long committed, monogamous relationships they witness in form to the desired outcome our society should want want from heterosexual couples who can generate new life. In addition, while the government can look at a same-sex couple and determine definitively that they cannot generate life from their union, I would consider similar probing into the fertility of heterosexual couples to be well outside the boundaries of government’s jurisdiction and competence. Let us consider what we’re doing when, as a political community, we redefine marriage as a union between two (at least presently) consenting adults in a loving, life-long relationship consisting of physical and emotional intimacy. The institution of marriage, from the government’s perspective, would become completely disconnected from children. As stated above, children are the reason why the government has a compelling interest in marriage relationships and not other interpersonal, adult relationships. If extending legal rights and protections to the institution of marriage is NOT about children (or the closely related issue of encouraging monogamy among heterosexuals) then the government should NOT be about the task of legally acknowledging marriage at all.
FREEDOM TO CREATE A NEW INSTITUTION
If one believes that institutions like marriage are not rooted in some kind of creational norm or derived from some kind of divine revelation, then they can be created, re-created, and destroyed at will. My final point is that same-sex couples and the broader LGBT community have full freedom to create an institution that encompasses all sorts of interpersonal, committed, intimate unions. And they are free to create or align with organizations that will develop the language, perform the ceremonies and rituals, and publicly declare the legitimacy of non-marital unions of all kinds. None of this is prohibited by law at this time. This, too, is part of the freedom of association enshrined in the Constitution and can be supported within the boundaries of Christian ethics. We desire these “free” spaces where we can, without coercion, propose (not impose) a better way to be human to those with whom we disagree.