I know we have gone over this before, but given that some may not be clear on what is a critical issue I think it may be worth posting on this, since it has been the subject of lots of threadjacks.
Many here have pointed out that it is acceptable to ban gay marriage on moral grounds because all law is based on some morality. I disagree.
I am a positivist as far as the law is concerned. We arbitrarily make laws for all kinds of reasons. Most of these involve giving some economic or political advantage to one group over another. The law is a tool in the general competition in values. Its doesn’t have a lot to do with morality to favor the meat industry over the corn industry, for example.
However, morality and fairness come into play when we apply laws and infringe on critical human interests, and this is one of the bedrock moral foundations of American law. Laws should be fair and just when they protect and disadvantage interests. When it comes to critical human interests, privacy, expression, religion, liberty the law protects these against infringement by the majority.
American law protects marriage as a fundamental right. Chief Justice Earl Warren explained:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.
Those of us who are married, or whose parents were married, or plan to be married take advantage of Constitutional protection to marry who we want and establish families. The right is certainly not a given, governments since the beginning of time have limited this interest for all kinds of reasons. Even in the U.S. it wasn’t until 1967 that this right was fully acknowledged as part of our Constitution.
Because Americans consider marriage to be a constitutional right, State’s can’t make laws to impose on these rights without absolutely compelling state interests. However, we don’t apply the same standard to same-sex Marriages. The state’s can deny marital rights to same-sex couples if they have any rational basis. I don’t think its fair and consistent with American civil rights to consider the interest in same-sex couples to be married and to establish families as deserving of far less protection than the right of hetero-sexual couples to marry and establish families. This is the majority imposing a different standard on the minority.
Of course some would say that we can distinguish the gay person’s interest in being married from a straight person’s interest. But it doesn’t fly to do this by pointing out that gay people are bigger sinners and therefore their interests are invalid. Its only fair to treat same-sex marriage the same because the individual interests are essentially the same.
And, i think the societal interest in promoting procreation is not harmed at all by protecting the individual interest of gays. Even if it was, there are far better ways to strengthen marriage and families than by banning gay marriage. So in a case where critical individual interests are involved, i.e. the interest in getting married, the government should take the route that least impacts these cherished interests. That is why banning gay marriage is not a justifiable method of protecting societal interest in families, even if you did believe that it would serve that end.
This sort of reasoning is the kind of morality that American law is based upon, fair application of protection of fundamental rights from the majority. Based on this morality, a morality that all of us desperately rely upon to protect our liberty from the majority interests that are not our own, I cannot see how it is justifiable to treat the gay interest in marriage differently, no matter how sinful we may think homosexuality is.
I think the Supreme Court’s reasoning when it overturned anti-miscegenation on constitutional grounds applies to same sex marriage:
“To deny this fundamental freedom [to marry] on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” = Majority opinion in Loving v. Virginia
There are absolutely real differences between race and gender. Race is essentially a cultural construct while gender is a real physical difference. There may be justifiable reasons for treating men and women differently under the law, but I don’t know of many. However, it is equally clear that some human beings feel precisely the same about others of their same sex as the majority feel about those of the opposite sex and they have an equally compelling human interest in establishing families and protected life partnerships. So long as marriage is the life partnership that is Constitutionally protected in America, it should apply to this minority.
Therefore, as Christians and Americans we can confidently support same-sex marriage on the same basis that we support the right to privacy, freedom of association, or freedom of religion. Mormons, who were oppressed for their belief in a different type of marriage should be especially sensitive to this protecting others who have divergent views. The most religious among us will gladly fight and die for the right for our fellow citizens to believe and worship in a way that will send them to hell because we demand this same sort of protection for the government against those who think we believe and teach errant doctrine. Equally we can demand protection for gay people to marry, even if some of us believe it is odious to God and against our view of marriage, because we would fight and die for that right for ourselves. In my view this is what it means to be an American AND a Christian.