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August 2010

Can liberals and conservatives agree on same-sex marriage legalization?

Many American citizens oppose same-sex marriage on religious (biblical) grounds. Others see opposition to gay marriage as discrimination. Is there a clear distinction between liberal and conservative camps on this issue?

Performing same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia. Same-sex marriages are recognized in New York, Rhode Island and Maryland but cannot be legally performed. Gay marriage was legal in California and then it wasn't. Opposition to same-sex marriage has brought together some strange bedfellows. Right-wing religious conservatives along with many black church leaders, who tend to lean liberal, have come together to oppose court decisions and legislation to legalize same-sex marriage. On the other side, traditional liberals and some libertarians, traditionally conservative, oppose any marriage restrictions. It was not long ago that many Americans opposed civil unions and benefits for same-sex couples. This has changed significantly. Do we now recognize gay marriage with all its rights and responsibilities or do we pass a Constitutional amendment to ban it? Is there or should there be a compromise between the all or nothing groups?

Conservative Response

Along with promoting immoral behavior, legalizing same-sex marriage by either the federal or state government could have significant impacts on our freedom of religion. The First Amendment of the United States Constitution ensures the free expression of religion. Legalizing same-sex marriage, either through legislation or judicial activism, opens the door to further challenges to religious organizations in America. There have already been legal challenges against religious organizations that have excluded gay couples from access to public facilities that are owned or maintained by religious groups. This could have huge financial impacts on health care facilities, schools, shelters, camps, community centers and many more. Along with legal fees, these facilities could lose their tax-exempt status.

Could this go beyond church facilities? Can churches (or synagogues or mosques) be sued for refusing access to gay couples? Can religious leaders (Pastors, Priests, Rabbis or Imams) be sued for preaching against homosexuality and same-sex marriage? Can religious adoption agencies be sued for excluding gay couples from adopting children? Can religious individuals be sued for not working with or providing services to gay couples even if it is against their religious beliefs?

Legalizing same-sex marriage will force the government and the courts to legitimize homosexuals as a protected minority. Religious organizations and individuals will be forced to abandon their beliefs and to lose their right to the free exercise of their religion OR suffer the wrath of a litigious society.

As a civilized society, we also must be concerned about hatred and violence against religious people that openly express their beliefs. Those openly supporting California's Proposition 8, which modified the California Constitution to clearly state that "only marriage between a man and a woman is valid or recognized in California", were victims of harassment, vandalism and threats of personal violence. After the vote, those opposed to Prop 8 published donor lists, putting thousands of additional citizens at risk of reprisal.

Conservatives can't give up on this issue. Conservatives know this is NOT an issue of civil rights; this is an issue of morality. Traditional marriage in a strong moral society ensures a strong family, community and nation. It's essential to the future of our children. Although there have been major positive steps to prevent same-sex marriage including Proposition 8 in California, traditional marriage is still at risk. The only true solution is to amend the U.S. Constitution to define marriage between one man and one woman. A Constitutional amendment would prevent any liberal legislature or activist judge to legitimize or recognize any other definition.

— Editor

Liberal Response

Same-sex marriage legalization is inevitable. It can be delayed but not stopped…nor should it. From a liberal viewpoint, gay marriage is both a moral and a civil rights issue. Everyone should have the freedom (even the right) to marry the person they love. It was a freedom that was restricted by race until the Supreme Court ruled that interracial marriage was a basic civil right – a ruling that was extremely unpopular in the 1960's but, in today's world, a law banning interracial marriage would seem almost ridiculous! When a judge refused to marry an interracial couple just this year, the decision was almost universally condemned and the judge was forced to retire. Just as we express moral outrage and shock at this judge, twenty or thirty years from now, people will be wondering why gay marriage was even an issue.

Gay marriage is already legal in 5 states and is recognized, though not legal to perform, in 3 additional states. Gay marriage is also legal in the District of Columbia though D.C. is currently fighting challenges in court to keep it legal. So far, they're winning.

In California, gay marriage was legal until, after a huge influx of money and campaigning from outside the state and, most specifically, from the Mormon Church, California passed Proposition 8 which changed the California constitution to define marriage between a man and a woman. Prop 8 is currently being challenged in the courts and, as of August 4, 2010, was declared unconstitutional based on the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

At the federal level, the Defense of Marriage Act defines marriage as a legal union between a man and a woman (DOMA, Section 3) and no state needs to recognize a same-sex marriage from another state (DOMA, Section 2). Section 3 has already been ruled unconstitutional by the U.S. District Court based on the 5th Amendment (Due Process Clause) and the 10th Amendment (Spending Clause) though the decision is currently stayed waiting an appeal by the Department of Justice. How far will the DOJ go considering President Obama's position supporting the repeal of DOMA? The constitutionality of Section 2 is still disputed. Did Congress overstep in excluding same-sex marriage under those acts recognized by the Full Faith and Credit Clause of the Constitution?

It's just a matter of time before DOMA falls on constitutional grounds. The Republican Party Platform calls for a constitutional amendment that defined marriage as a union between a man and a woman. Even if Republicans take over the House of Representatives this year, it's doubtful that they have the will in both the House and Senate to fight for a constitutional amendment banning same-sex marriage. This issue will be left to the states and the courts.

Of course, the states will take longer and will probably require the courts to intervene as they did over interracial marriage in the 1960's. In Loving v. Virginia, the U.S. Supreme Court ruled that marriage is a basic civil right and the freedom to marry resides with the individual NOT the state. This one decision overturned any remaining anti-miscegenation laws still in effect in over a dozen states. A decision against California's Proposition 8 could have the similar effect on same-sex marriage bans around the nation.

It has been argued, most recently in the District of Columbia, that the decision to legalize same-sex marriage should be left in the hands of the people. As with Proposition 8 in California, a public referendum could overturn D.C.'s bill to legalize same-sex marriage. Change isn't always popular – the majority of American people were against interracial marriage when the anti-miscegenation laws were struck down by the Supreme Court.

With some notable exceptions in the Middle East and Africa, the attitude toward same-sex marriage around the world and, specifically, in the United States is changing. As both a moral issue and a civil rights issue, nations are recognizing same-sex marriage. It's just a matter of time before the United States does too.

— Editor

Alternative Response

It's time for state and federal governments to get OUT of the "marriage" business.

Much of the argument against same-sex marriage is based on religious grounds. So why not leave the decision on same-sex marriage to individual religious organizations. If the Catholic Church wants to ban same-sex marriage, let them. If the Episcopal Church of the United States wants to allow same-sex marriage, let them. The First Amendment to the U.S. Constitution forbids the government to interfere in the free exercise of religion. If a government (state or federal) bans same-sex marriage, isn't the state interfering in our constitutional rights to religious freedom, eroding the separation between church and state?

So, what happens to all the benefits the government bestows on married couples? Nothing – all the benefits are still available through the government but now under Civil Unions. The government will recognize Civil Unions as a secular contract between two consenting adults with all the rights and obligations currently afforded to married couples. If the couple also wants their union to be recognized by the church (or synagogue or mosque), it becomes their responsibility to find one to perform the wedding. The religious organization, whether it's Christian, Muslim, Jewish or any other faith, will not be forced to recognize gay marriage. Different religions will have the time to conform to societal changes IF they wish.

Of course, there may be arguments against this proposal. Does this just redirect the religious arguments concerning same-sex marriage to civil unions? It probably will. Does this really address the injustice that many homosexuals feel about same-sex marriage bans? It probably will not. However, as the term "marriage" is removed from the government's vocabulary and as Civil Unions become more acceptable throughout the United States and across the world; over time, these arguments will move from the world of politics to the world of religion.

— Editor

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