The first time I wrote about gay marriage rights here was more than four and half years ago (“Equal justice for all: the gay rights tide has turned,” Oct. 15, 2010) and the kernel of the argument was already formed:
We can proclaim not to understand why people are homosexual, or embrace a religious belief that homosexual activity is a sin, but none of that matters in a tolerant, secular, civil society. The experts can’t say why a person is sexually attracted to one gender or the other. And it violates the rights of due process and free speech guaranteed to each American in the Constitution to treat someone differently because of their sexual orientation just as it would to treat them differently because of their gender or their ancestry.
You don’t have to “understand” gay people any more than you have to “understand” people of a different race or a different religion. You only have to understand that these people are Americans like you, who believe in American rights like you do, who want to enjoy American freedoms like you do…
This week, history: a 5-4 decision from the Supreme Court of the United States in Obergefell v Hopkins takes its place alongside the great civil rights and civil liberties decisions of American jurisprudence. The U.S. Constitution guarantees the right of all Americans to civil marriage, and all its advantages and protections, be they heterosexual, homosexual, bisexual, or asexual. As far as the civil law is concerned this isn’t about sex: it’s about equal treatment under the law.
Homosexual conduct is no longer a civil crime in this country, and thus is no reason to withhold the full rights and exercise of citizenship from homosexuals. Homosexual conduct is objectionable within many organized religions, to be sure, and virtually all of the opposition to extending the right to marry to gays and lesbians has come on religious grounds. For the most part I don’t question the sincerity of that religious belief (although it would be prudent to account for the cynical exploiters, primarily from the political realm).
But that’s beside the crucial point, which is that, in this country, civil law is not answerable to religious law. The First Amendment guarantees that we each and all get the freedom to practice our religions, but also guarantees that none of those religions wields authority directly over civil society. The Constitution protects us from any majority that would try to force one or another religious doctrine onto everyone—because the Constitution takes religious liberty for all just that seriously—and guarantees that all men and women deserve equal treatment under law. Despite the nearly hysterical dissenting opinions of some of his colleagues, Justice Anthony Kennedy’s decision didn’t create a new right; it reminded us about a right that’s been there all along…and my friend Mr. Jefferson recognized the rationale by which Kennedy connected the dots (and Peter Foster of the Daily Telegraph reminded via the Twitterverse) long ago:
Obergefell does not mean that First Amendment protections of religious liberties are at risk, despite what you’ve heard. Some of that reaction is well-intentioned misinformation; most is hot air from right-wing politicians and conservative religious extremists who need a boogieman to scare their supporters into donating money. (I’m looking at you, Governor Abbott—thanks, Evan Smith for the Tweet-tip.) In either case, they are wrong. Religious organizations are exempt from this ruling, as they are exempt from many other laws, like, say, tax laws. As Lisa Falkenberg put it in this morning’s Houston Chronicle, this ruling has no applicability to individuals in their private lives or to private religious institutions: “It does not keep anyone from judging, or hating, or even just politely refusing to acknowledge gay people. No court ruling has ever told a pastor whose wedding he or she can bless. That hasn’t changed.”
It is possible to believe in the religious sacrament of marriage and still accept this court’s decision on civil marriage rights for homosexuals. Michigan Representative Justin Amash, a Tea Party/Libertarian/Republican, made the point quite nicely this week on Facebook:
Throughout history, different cultures have defined marriage according to their own customs and practices. Christians, Jews, Muslims, Buddhists, Hindus, agnostics, and atheists do not share identical views on marriage. In fact, significant differences regarding marriage exist even within Christianity.
What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.
Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.
To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority. (emphasis added)
The civil right of marriage is open to all Americans. We must be diligent about making sure that the implementation of this decision protects the First Amendment rights of those with a religious objection to same-sex marriage, keeping in mind that it doesn’t give them the right to ignore the law. And while we’re at it we should work on getting rid of the laws which still permit discrimination against gay Americans in the areas of housing and hiring and other aspects of day to day life, and any other laws that violate anyone’s right to equal treatment. Because we’re Americans, and that’s what we do.