It is official. The Supreme Court has upheld same sex marriage and ruled no state is able to outlaw same sex marriage. For many of us it is the culmination of decades of fighting another battle to assure equality under American law. For others this is a declaration of war against the will of God. This statement from the American Anglican Church is typical of that reaction:
“Marriage is established by God for the procreation and raising of children and for the good of society. For this reason, governments have an interest in marriage and have delegated authority from God to protect and regulate it. But no court, no legislature and no local magistrate has the authority to redefine marriage and to impose this definition on their citizens.”
Political reactions to the ruling focus on parsing Justice Kennedy’s reasoning, usually condemning his summary as NOT based on the constitution. Dissenting justices such as Roberts and Scalia say this is denying states the right to a legislative process that expresses the will of the people. They hold that a committee of 9 lawyers is usurping the democratic rights of the citizenry. To me there is no question that those who oppose same sex marriage tie the two reasons, religious and political together.
I am not a lawyer. I cannot drill deep into the legal reasoning used by either side. I would simply make a couple of obvious observations. First, on June 12, 1967, the Supreme Court unanimously ruled that any law preventing interracial marriage was unconstitutional. The ruling was in response to a case brought by an interracial couple that was forced to leave their native state of Virginia because state law deemed their marriage illegal. There was no movement in state legislatures to change the law. There was no “democratic” process in play. It was simply the court upholding a basic right of two citizens to choose to marry each other. I will point out that there were some Christians who based their opposition to interracial marriage on their interpretations of the Bible. The legal process exists to address threats to individual liberty that the legislature has not or will not consider. To wait for state legislatures to pass laws regarding equal rights (look at the history of civil rights) is to allow injustice to continue at human whim. The court’s intervention in these sorts of cases are necessary and honorable. Such is my uneducated opinion.
As to the Anglican Church’s and other religious leaders’ assertions that marriage is established by God in order to further procreation, I disagree on a number of levels. First is the obvious. Sex between man and woman is what ensures procreation, not marriage. Marriage is a human institution created to define a range of issues from establishing the boundaries of a family, to financial arrangements. Marriage in the Hebrew Bible was a transfer of the ownership of a woman from her father’s household to her husband’s household. This institution has undergone numerous changes over the centuries. The inclusion of same sex marriage as an accepted path is just another adaptation to the institution of marriage. Further, we now understand homosexuality not so much as choice, but genetically driven. Indeed, our understanding of sexuality in general is undergoing a revolution. We are only at the beginning of understanding the diversity of variations. If God created this world, then God intended these variations. Our job is not to condemn them, but to understand them. Of course, this approach means one has to recognize the Bible not as written by God and handed to humans, but the human attempt to understand our relationship with God and the world that God created, therefore subject to reinterpretation.
There is, however, an issue that raises at least a yellow flag in the aftermath of the Supreme Court ruling – to what extent will state or local governments try to control religious choices. I raised this in my previous blog and a couple of readers dismissed my concerns as unrealistic or a “red herring.” I beg to differ and here is why.
I wrote that the Catholic Church has legitimate concerns (even though I disagree with the Church on this issue) over being forced to provide coverage for contraception as part of the mandated health care packages. I am not talking about private businesses such as Hobby Lobby, whose owners profess a religious belief. Rather, I refer to Church run institutions, not only churches themselves, but hospitals and schools that operate under Church supervision. These are extensions of the institution of the Church. The question of whether or not the federal (or any government) can force an agency of the Church to provide something that is against the expressed doctrine of the Church IS a legitimate question. I cannot dismiss these concerns (even though politically I disagree with the Church) as they open the Pandora’s box as to what degree the government can interfere with acting out religious beliefs.
This becomes more complex when a religious doctrine or practice is seen as opposing a human right. In 2011 there was an initiative in the city of San Francisco to outlaw circumcision as an abridgment of the right of the baby boy, since the baby cannot make the decision on whether or not to have the circumcision. Jews and Muslims saw this as a direct interference with their religious beliefs and practices (rightfully so I add). Here is a case where a group of citizens are arguing that protecting an individual right supersedes the right of a religious group to hold a belief and perform the applicable ritual. While this initiative failed, it is neither the first or only attempt by a group of citizens to interfere with a religious rite (and right) while advocating for an individual right.
It is not unrealistic to see a group of citizens in a local community or a state, who will try to force clergy to perform marriages that are against their personal religious beliefs using the argument that they cannot deny a couple the right to marry in the religious institution of their choice. Lines are becoming more and more blurred. One can argue that it is one thing to force a photographer not to discriminate by refusing to shoot a same sex wedding versus forcing a member of the clergy to perform a wedding he or she does not condone. But people are raising these concerns. Religious beliefs are challenged all of the time in the name of the common good. We need to recognize these discussions are taking place and not dismiss them as being invalid or silly. At the minimum, religious organizations’ non profit status might be in jeopardy if they refuse to accommodate same sex marriages (see Bob Jones University loss of non profit status in 1983 due to policy banning interracial dating).
It was Bob Dylan who wrote “The times they are a changing.” Indeed they are. Regarding the legalization of same sex marriage I believe it is a change for good. It is just a disservice to ignore the probability of unintended consequences and the need for conversations to resolve them. The concerns of religious communities, even those with which we might disagree, should not just be casually dismissed. Our country will be so much better if we do not.
The Jewish Observer 