Today two historical rulings came down from the Supreme Court[i], striking down a key provision of the Defense of Marriage Act (DOMA) and vacating a decision upholding California’s Prop 8[ii]. A long hard road makes a brief rest stop for justice. The devil is still in the details, and we can look forward to weeks of pontification and prognostication[iii] from the news show talking heads. For the moment though, if I could virtually fist-bump Justice Kennedy and the other Justices of the majority, I would totally do so[iv].
I am an unabashed supporter of gay marriage. Love is Love. (I know it’s easy to say that on a blog read by a total of 3 people, maybe 4 if someone got lost on their way to Banana Republic’s website. It’s certainly a lot easier than being one of the people out on the front lines[v].) I also know some of my friends and family disagree. I don’t write this to offend you, but at the same time, I am not worried about offending you in writing this. I love you, and I understand why you may not agree, and I understand that not all disagreement necessarily comes from a place of hate and intentional bigotry. But for me this is not a matter of relative interpretation. I respect the right to different views on gay marriage in general, but the legality of gay marriage is something I truly believe there is only one correct answer on because it is rooted not in emotional or moral arguments, but in the underpinnings of our legal tradition. This is a matter of what it fundamentally means to be an American citizen.
The one enduring and fundamental pillar of the American democracy is the equality of all persons. It’s reflected in every aspect of a citizen’s standing before the government (one man one vote, etc.) We believed in this so much we carved it directly into the highest court of the land. On the façade of the Supreme Court are found four perfect words: “Equal Justice Under Law”. There is no more important aspect of the American way of life than this cornerstone principle. It is the foundation of our system of law and society as a whole. We came to this country in part to escape tyranny and to uphold the essential value of the individual. We fought wars, foreign and domestic, to throw off the yoke of elitism and inequality. Time and time again we have upheld the principle that if all are not equal under the law, none are. Without the bedrock of our equality before the law, our entire system of government and society collapses. Rule of law falls away. Liberty cannot cohabitate with tyranny.
Marriage involves two aspects; the “sacred” (comprising the religious, emotional, spiritual or other facets of personal and community values) and the “secular”[vi] (comprising the tangible legal and financial recognitions of the union). The opposition to gay marriage seems focused on the sacred, which is part of why those arguments are inherently incompatible with our democracy. The “sacred” aspects are important, but they’re not where this debate really pivots. They are not irrelevant in the greater sense, but they are irrelevant to the legal question at hand. It’s not because they don’t matter to us as a nation, but just that they are secondary to the legal protections of our system of law. Whether or not I disagree with what you say, feel, write, chant on the public green, wear, cook, read, or tattoo on your bicep is irrelevant to the question of whether you should be able to do those things. From the First Amendment on down this has been the mainstay of our consideration of the relationship between the individual, the community, and the state. I have a right to think what you’re expressing or doing is wrong. I don’t have a right to stop you from doing it as long as it doesn't tangibly impact me. You want to say my favorite band is crap? You’re dead wrong, but I will always support your right to express your horrible music tastes. There is no legitimate argument that gay marriage tangibly impacts anyone[vii], so it is inherently a matter of personal liberty. Yes, it may very well offend you, or you may think it violates your conception of the sacred aspects of marriage. You have every right to think whatever you care to about it. What our society has continually upheld in virtually every other aspect is that while you have the right to decry it, you don’t have the right to impose your opinion on someone else’s exercise of their liberty.
It’s tempting to devolve into a repudiation of the moral and pseudo-legal arguments against gay marriage, and I’m not suggesting that this discussion isn’t important. But the fundamental equality of all American under the law trumps any concern raised, even if one found them legitimate[viii]. I’ll simply say I have yet to hear a single cogent argument against gay marriage which, well-intentioned or otherwise, doesn't stem ultimately from either bigotry or religious precept. Neither are acceptable reasons, absent any tangible harm, to deny someone’s liberty. To do so is legislating tyranny over liberty, which is antithetical to our Constitution and the rule of law.
The secular aspects of marriage are where the debate truly should be taking place[ix]. No one is forcing churches to marry anyone; that would be an intrusion into the sacred aspects of marriage. No one is forcing you to sing gay marriage’s praises. Civil marriage is a service provided by the government. It does not assume nor require adherence to a given religion or moral precept. Despite traditional language, it is solely recognition by the state of two consenting adults entering into a binding legal relationship. Churches have a right to decide who they provide their services to based on arbitrary distinctions. The government does not. We would be up in arms if the government denied fishing licenses to redheads, or if only Presbyterians were allowed tax-exempt status for their church properties. We've fought wars, real and social, to ensure that the color of one’s skin isn't a determinant for access to government and exercise of liberty. Neither separate-but-equal or straight out discrimination are acceptable alternatives for equality.
The argument is simply this: gays and lesbians are Americans first before anything else. They, like every other American, are guaranteed a relationship to their government based on equal standing before the law. They have a right to do, say, feel, and take actions we may think are wrong, just as every other American can. They pay taxes, they serve their country, and they have just as much to expect equal access to government services as anyone else. More importantly, they have just as much right to life, liberty and pursuit of happiness as anyone else. To deny them an aspect of that based on a subjective opinion is wholly un-American. It doesn’t matter that I think there are compelling moral and ethical reasons why gay marriage is a good thing, or why you may think it is the work of the devil, or anywhere in between. What ultimately matters is that we all get to think whatever we want, but we all get to go on with our lives and exercise our liberty DESPITE those opinions.
Today we took a step in that direction, but we’re not done walking.
[i] For some reason the popular acronym SCOTUS just sounds dirty to me. I blame Scalia. Not because of any rational connection, but just because I pretty much blame Scalia for everything because he’s so blamable in general.
[ii] I previously posted a short but vitriolic bit about Prop 8 some time ago. How amazing is it that within the scope of a few years I am able to proudly say it has been relegated to the dust bin of history.
[iii] Also, probably pondering, politicking, pandering. From Fox “News”, paroxysm and polemic.
[iv] And not just an anemic little fist bump….the cool kind where you each spread your fingers out afterwards and make a sound effect like “kapow” or something similar…as if the occurrence of the fist bump was so intense that it burst outward in sheer awesomeness on contact. You’re the man now, K-dog.
[v] I hope I have supported those people to the best of my ability over the years, but I can’t claim I have shared their experience No matter how strident my support, I don’t have skin in that game…I’ve never had anything tangible at stake like many of my friends have. I got to marry the person I chose. I have no problem getting the full range of state and federal benefits recognition of my marriage. I get to be with her without being heckled, harassed, or my life put in danger. I can’t even begin to comprehend what it has been, and continues to be, like for these folks and millions more across the country.
[vi] I’ve argued before that government has no business muddling about in the sacred, and should stick only to the secular. Give us all civil unions; gay, straight, or what have you. Let people seek the sacred wherever they want to. If you want to be married in the church, go for it. If you want to call yourself married through a ceremony with friends at a Taco Bell, do it. If you want to be married by a minister, rabbi, good friend, swami, Ben Folds Five, or a particularly animate ficus tree, that’s your choice. People can agree or disagree about who’s married. You don’t have to recognize the marriage of the conservative couple next door, and they don’t have to recognize yours. But everyone has to recognize everyone’s civil unions. It separates the secular from the sacred. The government has no business in the sacred, and should stick to the secular and let people find the sacred for themselves. Render unto Caesar what is Caesar’s, and so on.
[vii] Especially any more than straight marriage does.
[viii] Which, yet again, I do not in any shape or form.
[ix] Though, again, I think there is an insurmountable moral/ethical argument to be made for gay marriage. It simply should be unnecessary because of the legal argument.