Gay Marriage in Massachusetts and the Egyptian Boathouse
This Web Log has focused on Iraq so much in the past year that sometimes readers complain if I stray into other subjects. But it was originally created after September 11 to have a pretty wide purview, and I’ve talked about all sorts of things, from Pakistan elections to Mel Gibson’s movie about Jesus. Sometimes the Iraq-oriented readers complain if I stray, so I suggest they skip this item.
What is on my mind is that the opposition to gay marriage in Massachusetts seems to me almost entirely religious in nature. I don’t know of any organized agnostics or atheists agitating against it. The religious want to pass a Massachusetts law making gay marriage illegal. This development is disturbing for a number of reasons, but most of all because I think the religious people want to use the power of the state and Federal governments to impose their will on U.S. society. And that is a contravention of the First Amendment and of the Lemon Test put forward by the Supreme Court in 1971. Chief Justice Burger wrote,
“Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster and excessive government Entanglement with religion.”
A law against gay marriage seems to me to fail the “secular purpose” test, and insofar as the political base for passing it is conservative churches, it would seem pretty entangled with religion, too. And that is my reply to Senator Rick Santorum and others who argue that gay marriage is equivalent to many deviant practices frowned on by society. There is a secular purpose for forbidding marriage of close relatives, since it exposes the offspring to heightened genetic danger. There is a secular purpose for forbidding pedophilia and pederasty, indeed there are many secular purposes fulfilled by such a ban (forbidding the manipulation through intimacy of the young by persons much their senior, which is unfair, and keeping the young from developing all sorts of neuroses and personality problems as a result of an inappropriate relationship for which they are unready). It is said that gay unions offend against the sanctity of marriage. Actually the secular state has no business marrying anyone if it is thereby affirming the “sanctity” of anything. That would severely contravene the Lemon test.
But I cannot think of a secular purpose that is served by banning gay marriage. All the arguments against it are religious. It is said to be unnatural. But it is not, if by that it is being argued that same-sex behavior does not occur in nature (look at our close cousins, the bonobos). The “unnatural” argument is really an appeal to religious ideas of what is “natural,” i.e., what is in accord with the will of the Creator as known by His revelation. From a purely secular point of view gay marriage has many benefits for society. Sex within marriage is safer with regard to health issues than is promiscuity. Gay marriages do not produce offspring, and so they reduce population growth rates and reduce the strain on the world’s limited resources (the old custom of forcing gay men to marry women and father children was pro-natalist, i.e., contributed to population growth). Etc.
The argument that past American society forbade gay marriage and so it must be constitutional won’t pass muster. The American experiment with political liberty is an evolving one. Until fairly recently the Federal government forbade the practice of Native American religion, even though that clearly violates the First Amendment. Past American society often passed laws or engaged in practices inconsistent with the letter and/or the spirit of the constitution. We are getting to know the implications of the document over time, and many of those implications could not be foreseen by its framers. Thomas Jefferson would not be at all surprised by this conclusion. He wrote,
“this ball of liberty, I believe most piously, is now so well in motion that it will roll round the globe, at least the enlightened part of it, for light & liberty go together. it is our glory that we first put it into motion.”
The ball of liberty is not some known quantity that we control and the limits of which are immediately apparent, in this view. It has a will of its own and goes places we may not have initially intended. We just “set it in motion.”*
I am sure others have made this argument about the Lemon test, but I’ve been too busy reading Iraqi newspapers to notice.
It is relevant to my interests because homophobia is deeply embedded in radical Islamism, and I think the intolerance that leads to terrorism must be fought across the board. The Taliban and the Khomeinist regime in Iran passed laws making gay affairs a capital crime. Yes, people were killed for being gay. For the Taliban, this harsh attitude derived in part from concerns about military discipline. Taliban society was highly gender-segregated, so the males mainly socialized with other males. Out in the field there was a lot of fooling around and sexual experimentation, but of course it reduced discipline to have two guys in the same platoon sleeping with each other. So if they were found out they were executed on the spot. The Taliban were expert at seeking out the weirdest and least reliable of the sayings attributed by the folk process to the Prophet Muhammad, and then applying them in a literal way to the law. So, they found some saying that a wall should be pushed down on homosexuals, and probably for the first time in Islamic history they implemented it.
Even in less regimented societies, like Egypt, gays have been scapegoated and even tortured. Egypt is not an Islamic state but rather a military dictatorship. It does have a strong dissident Islamist movement (think Ayman al-Zawahir, Bin Laden’s number 2). It does not even formally have a law making homosexuality illegal, but prosecutors have nevertheless prosecuted gays. President Mubarak has occasionally yielded to Western pressure to lighten up on the persecution.
While persecuting gays and not letting them marry are different things, both measures stem from intolerance and a depriving of some persons of rights enjoyed by others.
Religion should not be telling governments what laws they must pass or mustn’t pass, where there is no secular purpose served by the law. That is a cornerstone of the US Constitution, and the world would be much better off if everyone adopted this principle. If religious people want to engage in some practice because their religion tells them too, fine. They are free to do it. But they are not free to try to pass their religious beliefs into statute and dictate to the rest of us. That commandeering of the state for the purpose of imposing religion is what Usama Bin Laden and al-Qaeda are centrally about. It leads to oppressing religious minorities and secular people and women and gays. The same impulse of religious intolerance that led to September 11 is what lies behind much opposition to gay marriage. So we have to decide if we are Americans or Taliban.
*I know whenever you quote Jefferson now people throw it in your face that he owned slaves. But surely the abolition of slavery was another one of those effects of setting the ball of liberty in motion, which even some of those who helped it slip its moorings might not have been able entirely to foresee or absorb. Besides, most premodern persons of the sort you might quote (including, in all likelihood, some of the apostles of Jesus and early church fathers) owned slaves. It was a horrible practice, but its pervasiveness in the past should not paralyze us from learning from the past.