Plasma Pool

Last Tuesday, we Californians passed Proposition 8, inserting the following simple sentence into our State Constitution, “Only marriage between a man and a woman is valid or recognized in California.”

The campaign was long, hard-fought, and well-financed on both sides. Most of all, it was confusing – both sides claimed that an unfavorable outcome would lead to the stripping away of their fundamental rights, and both sides claimed to be preserving the separation of church and state. At least in theory, it is possible for two groups’ constitutional rights to conflict. But does the controversy over gay marriage represent such a situation? Perhaps it does in some small ways, but overall, Prop 8’s supporters have fielded very few sound arguments. Gay marriage opponents have argued for two positions. First, they have attempted to convince voters that their religious freedom is jeopardized by the prospect of state-sponsored gay marriage. Second, they have held that gay marriage is not a civil rights issue. In both cases, they come up far short.

In arguing that their religious freedom is in jeopardy, Prop 8’s proponents have failed to make a crucial distinction: one between “secular marriage” and “sacred marriage.” Secular marriage is the mechanism the state uses to keep track of life partners for administrative purposes. Sacred marriage is a blanket term for a number of institutions specific to individual sects and religions, many of which involve the idea, as stated by President-elect Obama, that “marriage is the union between a man and a woman…it’s also a sacred union. God’s in the mix.” Many couples are united both by secular marriage and by some form of sacred marriage, and this is wonderful, but despite their correlation, secular and sacred marriage do not imply each other. It is easy to imagine a couple that would like to be married by their church but not in the eyes of the state, or vice versa. Clearly separating these ideas reveals holes in all arguments regarding infringements of Prop 8’s supporters’ religious rights.

According to pro-8 groups, if the government were to recognize gay marriages, churches would be forced to conduct marriages of which they did not approve, their children would be educated in a way contrary to their values, and an institution which is part of the bedrock of society – marriage – would lose its sanctity. Once sacred and secular marriage are distinguished from one another, these worries lose their force. First, churches will never be forced by the government to perform gay marriages. Today, the state is more than happy to recognize marriages between divorcees, but no Catholic church has ever been forced to sanction or participate in one of those marriages. Second, schools will not teach anything about sacred marriage any more than they teach any other religious belief. They may teach about secular marriage, but ideas about the kinds of marriages that are sanctified or not will be taught by families and churches, just as they are now. Third, given the strict separation between church and state, is it possible for marriage – or, for that matter, any religious institution – to gain or lose an ounce of sanctity because of a state action? Do members of the Southern Baptist Convention believe their exclusively male pastors are less sanctified because the government will recognize the status of female Episcopalian ministers? In this case, most have no trouble seeing that the state’s job is to administer, not to minister. (As an aside, I wish that those concerned with the Bible’s teachings on the sanctity of marriage would follow another Christian maxim: “May he who has no sin cast the first stone.” I suspect that if all those who ever divorced, cheated on their spouse, cohabitated before marriage, or engaged in premarital sex refrained from stone-casting, Prop 8 would have been defeated in a landslide.) Rather than supporting gay marriage opponents’ claims, the first amendment places an additional burden on them. “Congress shall make no law respecting an establishment of religion” implies that Congress should make no law that is not justifiable outside the context of a particular religion or set of religions. To do so would be to establish a component of that religion as a component of state law. Prop 8’s supporters must find a non-religious, policy-based reason to oppose gay marriage. Otherwise, they are actually working to unite church and state rather than separate them.

Of course, negating pro-8 claims about religious freedom is not enough. Even if a “yes” vote preserves no rights, shouldn’t people be allowed to vote for or against things based solely on like or dislike? They should, unless their vote infringes on the civil rights of others. (Even if this were not a civil rights issue, I would hope the voters would simply prefer to have gay marriage recognized, but Tuesday’s results prove that for a slim majority, this is not the case.) Prop 8 supporters argue that gay marriage is not a civil rights issue because “a person’s skin color is completely different than someone’s sexual practices.” (This from Bishop Donald E. Green, quoted on a piece of pro-8 literature I received.) Presumably, they mean that sexual practices are governed by choice, while skin color is biologically determined. In one sense, this is true, but let me be quick to point out that the claim that homosexual desire is a choice is not supported by the available evidence. In fact, it flies in the face of contemporary biology and psychology, not to mention common sense. Sexual orientation studies in twins reveal high heritability; homosexuality can be turned on and off genetically in fruit flies; boys raised as girls because of circumcision accidents grow up to desire women despite overwhelming pressure in the opposite direction; having more older brothers substantially increases the odds that a boy will grow up to be homosexual regardless of whether he is raised with his brothers. These facts and many others support the idea that sexual orientation is highly constrained by biological factors, especially for men. This matches most people’s experiences of their own sexual development – the overwhelming majority have no desire to become romantically involved with members of their own sex.

Of course, even given that homosexual desire is not governed by choice, acting on that desire remains a choice. For this reason, some Prop 8 supporters have asserted that gay marriage is not comparable to past civil rights struggles. This claim misses the fact that many civil rights struggles have involved assertions of a right to choice. Interracial marriage is the strongest example. In that case, there was a biological component (the races of the parties involved) and a choice component (the choice to marry each other). Interracial marriage bans discriminated based on an action—on the decision of an individual to marry someone of another ethnicity—not on the inherent characteristics of those who took that action. Indeed, interracial marriage is more about choice than gay marriage is. No one is exclusively attracted to members of other races, but plenty of people are exclusively attracted to their own gender.

Prop 8’s supporters have also claimed that marriage is an endorsement by the government of a particular lifestyle and is thus a privilege, not a right. In one sense, they have a point: marriage laws do give tax breaks to married couples, implying endorsement. I have some sympathy for the view that voters or their representatives should be allowed to decide who gets a tax break under what circumstances. However, gender is not an acceptable reason for the government to place people in different tax brackets. Female clergy are taxed in the same category as male clergy, even though many Californians do not view women as eligible for the priesthood. In the same way, all couples should be taxed equally, even though many Californians view some couples as ineligible for the blessings of sacred marriage.

Gay marriage opponents further claim that gay couples already have all the rights afforded to straight couples, including priority visitation at the hospital and facilitated access to one’s partner’s belongings in the event of a tragedy. The only difference, some claim, is semantic. But if the only thing at issue is a name, why is this so important? Why do many Prop 8 supporters oppose the alternate solution of abolishing governmental use of the word “marriage” altogether and renaming all secular marriages “civil unions?” This would clearly separate church and state while solving the problem of inequality, granting all couples the same status in the eyes of the government while allowing them to call their unions whatever they want. Anyone who resists this alternative while denying the term “marriage” to same-sex couples clearly believes that something more than a name is at stake. They believe that the government needs to make distinctions between life partnerships, and they undermine any lip service they pay to equal rights. As a few “activist” judges ruled in 1954, separate is not equal.

Which brings us to the crux of the matter – gay marriage is an issue of equal protection under the law. The government cannot distinguish between its citizens on the basis of gender. One retort to that claim is that we apparently distinguish between genders all the time: companies that grant maternity leave aren’t legally required to grant paternity leave; men do not have the right to abort a conceived child that they don’t want to father, but women can abort a child they do not want to mother; we continue to have “separate but equal” restrooms. But none of these cases involves governmental discrimination on the basis of gender alone. In the first case, individual companies are free to offer gender-specific supplements to this government requirement, but the government requires an equal amount of unpaid leave for mothers and fathers according to the Family and Medical Leave Act of 1993. In the same way, churches will still be free to offer only marriages between opposite-sex couples. The second case is not a gender issue; it is an issue of who carries and gives birth to the child. And in the third case, the government allows individual institutions to offer separate restrooms but does not require them; coed bathrooms are perfectly acceptable. Similarly, the state should allow same-sex marriages but not require churches to perform them. In all of the above cases, as far as the government is concerned, treatment of genders is equal; but individual institutions, including churches, are allowed to discriminate between genders in certain cases. In contrast to these cases, discrimination between same-sex and opposite-sex unions currently takes place at the level of the government and is based solely on the gender of the participants. This state of affairs is not acceptable. Some claim that in the case of gay marriage, the government discriminates between unions not based on the gender of the individuals as such, but on the basis of the potential for those individuals to biologically reproduce—a potential that homosexual unions, clearly, do not possess. However, if state discrimination were based on reproductive potential, wouldn’t we be granting infertile heterosexual couples “civil unions” rather than “marriages”?

Beyond distorting the first and fourteenth amendment rights at stake, Prop 8’s supporters display a troubling historical blindness. They fail to see that we have never regretted recognizing a civil right in the past. On the contrary, we have always wished we had done so sooner. In less than 50 years, all states will have gay marriage, and our children and grandchildren will find it shameful that this debate ever took place, just as people today view debates over slavery, women’s suffrage, and segregation. Past civil rights struggles were similar to today’s gay marriage controversy in another way – some who resisted did so because of their religious beliefs, and they no doubt earnestly believed that God supported their cause. On November 4th, too many Californians made the same mistake. It is a crime that our state’s Constitution now bears the fingerprints of bigotry.