Why Gay Marriage Is an Issue of Rights, Not Morality
Christopher Smith
On the afternoon of June 16, 2008, California performed its first legal same-sex marriage in the aftermath of the Supreme Court decision that struck down the gay-marriage ban in that state. The wedding of Robin Tyler and Diane Olson was a Jewish ceremony and an emotional moment for both the celebrants themselves and for many gay-rights activists for whom this represented a tremendous victory.
Conservatives may have difficulty understanding why this homosexual couple felt the need to trespass upon a rite that, in the Christian tradition, is a sacred union between one man and one woman. Civil unions have long been legal in the state of California, and already allow for homosexual couples to enjoy basically all the legal benefits of marriage, save only the name. Why then must gays take that small, extra step and thereby trespass upon a sacred Christian rite? Many view this as a deliberate assault upon religion and traditional family values. Gays are suspected of wanting to deliberately devalue and deconstruct the institution of marriage.
While it is true that there are radical gay-rights groups that have declared themselves in opposition to the institution of marriage, this actually is not true of all homosexuals. In an interview, Karen Ocamb, the rabbi who presided at Diane and Robin’s ceremony, indicated that the celebrants were “very spiritual people.” She continued, “Robin’s Jewishness is very much a part of who she is and she and Diane felt really strongly that they wanted a spiritual context for their wedding—not just a civil context.” The rabbi’s Kol Ami congregation in West Hollywood is what is called a “Reform” Jewish synagogue, meaning that it is part of a progressive branch of the Jewish faith that claims over a million members in North America alone. To say that they are progressive is certainly not to say that their faith is insincere. On the contrary, many progressive Jews and also progressive Christians in the United States are devout practitioners of their respective faiths and simultaneously believe that it is their moral obligation to extend the sacred marriage covenant to homosexual couples as well as to heterosexuals. Evangelicals who complain about homosexual trespasses on their sacred rite, then, are perhaps forgetting that they are not the only religious constituency in the United States that lays claim to marriage as a sacred institution or that claims the right to define the word for the broader culture.
Of course, Evangelicals may object—and not entirely without warrant—that marriage has long been understood as the union of one man and one woman, so that it is not they, but the revisionists who are claiming the right to define the institution’s meaning for the rest of us. While any claim that this is the way marriage has always been understood would be seriously mistaken, it is true that this is the way Western culture has tended to understand the marriage ceremony for much of its recent history. Even so, the fact that more than a third of the population of our nation understands marriage differently than do Evangelicals (according to a 2006 Gallup poll) suggests that the Evangelical definition is not as self-evident as it may seem to the acculturated. Moreover, it is not the gay rights activists who are pushing for laws and Constitutional amendments designed to universalize a particular understanding of the marriage rite. That is the province of the religious right, not of the homosexual left.
The truth is that our marriage amendments and gay marriage bans are not the defense of the status quo that they purport to be. They are rather part and parcel of the conservative Christian drive to make America a “Christian nation” by having creationism taught in public schools and teacher-led prayers re-introduced to the classroom. They are a violation of the Establishment Clause and an infringement of the religious freedoms of our neighbors.
The key to the gay marriage debate, perhaps, lies in the concept of “civil religion”. In 1967, an essay by Robert Neely Bellah titled “Civil Religion in America” was published in the Journal of the American Academy of Arts and Sciences (96:1, 1-21). Bellah’s essay pioneered the idea—now widely accepted by social scientists—that despite the Establishment Clause, America does in fact have what might be called an established religion. It is evident, for example, in national slogans like “in God we trust,” in the Pledge of Allegiance, in the Declaration of Independence, and in the rhetoric of our presidents. But far from being explicitly Christian, as some Evangelicals might too-hastily suggest, this national religion is a sort of lowest-common-denominator faith that exists alongside of and in harmony with the various religions to which American citizens hold. It is amenable to Jews, Christians, and Muslims alike. Even Hindus, who believe that their various gods are merely facets or manifestations of a single divine being or principle, could in good conscience affirm the monotheistic language of the national religion. Atheists, too, if they are willing to understand God as a sort of symbol or proxy for our common humanity, might take their places at the table of the American religion. The point is that civil religion really requires only a single affirmation: namely, that the principles of liberty and equality upon which our country is founded are of transcendent origin. Beyond this basic affirmation, the specific religious content of the civil religion is deliberately vague: it is designed to be able to accommodate the diverse beliefs of the nation’s citizens.
All of this is significant to the marriage debate because marriage is, in fact, an institution of the civil religion. This perhaps accounts for the powerful symbolic difference between a civil union—the title of which tellingly includes only the “civil” half of the term “civil religion”—and a marriage. To be excluded from the rite of marriage is to be excluded from the national faith, which Bellah called “the spiritual glue” that holds our nation together. To exclude anyone from the rite of marriage, in short, is un-American.
In this context, I believe it should be immediately evident why gay marriage is an issue of rights. The American civil religion, by definition, should be broad enough to embrace every American sectarian’s understanding of the marriage rite. If any one sect’s definition were to be universalized as the “true” meaning of marriage, it would constitute an establishment of religion and an infringement upon the right of other religious groups to full participation in the American religious marketplace.
What about morality? Is the question of right and wrong to be discarded? In my opinion, the short answer is “yes”. The oft-repeated mantra that we cannot legislate morality is perhaps poorly worded, but nevertheless expresses a basic truth. It is true that the United States sometimes passes what might be called “moral” legislation. But such legislation (at least ideally) is based on what political philosopher John Rawls calls “public reason”. According to Rawls, public reason must be accessible to persons of all doctrinal and ideological backgrounds; it must not engage in special pleading or appeal to principles that are unique to a certain cross-section of Americans (and that might be offensive to others). In other words, it is acceptable to argue that polygamy should be illegal because it dehumanizes women. While this argument may not be accepted by everyone, it nevertheless proceeds from commonly-held assumptions and can be meaningfully debated by all parties involved. But it is not acceptable to argue that polygamy should be illegal because the Christian tradition prohibits it. The assumption of the normativity of the Christian tradition is not commonly held by all Americans and so falls outside the pale of public reason.
With the concept of public reason as our guide, we can see why legislation concerning homosexual relations differs from legislation that prohibits killing or stealing. Publicly accessible and acceptable reasons can be given for the prohibition of killing and stealing, whereas the same cannot be said for homosexuality. Ultimately, the gay marriage debate is not really about whether homosexuality is right or wrong. It is about whether a religious majority has the right to vote a religious minority out of the national civil religion. It is not about defending the institution of marriage. It is about defending religious freedom and American pluralism. Gay marriage as a political issue, in short, is pre-eminently one of rights, rather than one of morality.
