It was only in passing that I mentioned last month’s election results that put another four states on the side of the angels in the fight to legalize gay marriage. There’s been an important development since then: the U.S. Supreme Court’s decision to hear arguments in two cases on the issue, opening the possibility of a legal precedent that will apply to every state in the union.
Supporters of giving same-sex couples the right to marry are enthused, since this decision comes in relatively close proximity to (1) President Obama announcing his support for gay marriage, (2) another appeals court overturning the Defense of Marriage Act (Windsor v. United States), and (3) people in more states voting in favor of same-sex unions. Emily Bazelon writes in Slate with some great background on the two cases themselves, and offers a warning: don’t assume that because four justices agreed to hear the cases that there are five of them who will rule in favor of gay marriage. Conventional wisdom has it that the court follows the people, but I’m trying not to get overly optimistic: it could be that the justices who said yes to taking up the matter are predisposed to uphold the Defense of Marriage Act or to defer to states on the whole thing…and 39 of them have outlawed gay marriage either by statute or in their constitutions.
I wish we could get some of those states, or Congress, to think about this issue in the way Britain’s government proposes: legalize same-sex marriage in civil law, and make the clear stipulation that religions which object cannot be forced to perform gay weddings.
Face it: most of the objection to same-sex marriage in our country claims a basis in religious teaching. I sympathize with people who are afraid that legalizing a practice condemned by their religion would somehow infringe on their own religious freedom, although I don’t think that would happen in this case. But the core issue as I see it is not one of religious freedom, it’s a question of equal protection under the law. To try to put it simply, it’s not fair that only some citizens can enjoy the benefits of being married under law; if it’s OK for some it must be OK for all, assuming it doesn’t hurt society at large. And let’s don’t get sidetracked on age limits—we already prohibit minors from entering contracts—or possible plural marriages or bigamies, which might be seen to have built-in disincentives and punishments. (Remember the old joke—what’s the penalty for bigamy? Two wives.)
Think of any given religion as a private club: no one of us is required to join that club but we each have the freedom to do so, and those who do join should be prepared to follow the club’s rules. If one club’s rules prohibit same-sex marriage, that is the club’s prerogative; but the rules of any one club or other are not binding on those of us who didn’t join the club.
The civil law is what’s binding on everyone in the civil arena, and it must be applied equally and fairly to all. The British plan makes it clear that each club/religion retains the right to apply its own rules to its members while inside its clubhouse, but that there is a civil law applicable on the broader scale to the rest of society regardless of the rules inside Club A or Club B.
So, there’s a lot to keep an eye out for on this issue, what with the courts and the lawmakers getting involved. There’s one more front, too, but in this case there’s a possibility that America’s emerging embrace of same-sex marriage, and perhaps of homosexuality in general, could have unintended and disastrous consequences. I refer, of course, to Choire Sicha’s discovery of just how gay marriage could lay waste to the quaint vacation industry:
Yes, America will have to rise up against the menace of bearded gay schoolteacher couples who like to weekend and all those inn-going lesbians with lawyers. With the end of small businesses in America, we’ll just go state-by-state and repeal these gay marriages and everything will be fine. That’s exactly how this will shake out.