(excerpted from Culture Wars: The Threat to Your Family and Your Freedom, by Marie Alena Castle)
“If writing the demands of the Book of Leviticus into the Constitution
is not a state-church separation issue, then I don’t know what is.”
—Randall Tigue, constitutional law attorney
Granting civil rights to lesbian, gay, bisexual, and transgender people (LGBT) has long horrified authoritarian religions. For centuries, armed with a Bible that calls homosexuality an “abomination,” they have established laws that marginalized and persecuted sexual minorities, and criminalized their sexual behavior. Since the 1970s in the United States, a gay rights rebellion against these laws has achieved repeal of most of them in the face of opposition that included violence and murder. In 2003, the U.S. Supreme Court finally declared unconstitutional one of the last major types of discriminatory law, the criminalization of homosexual sex (sodomy) in its Lawrence v. Texas ruling.1 The decision reversed the Bowers v. Hardwick lower court ruling that upheld Georgia’s statute prohibiting oral and anal sex by either homosexuals or heterosexuals. The statute had used a “community consensus” on morality to deny a right to privacy. Lawrence rejected the idea that majority perceptions can justify the denial of rights for a minority.
In Lawrence, Justice Anthony Kennedy, supporting reversal, noted that centuries of majority hatred of homosexuality based on religious views had been the driving force behind discrimination against homosexuals. Justice Sandra Day O’Connor, also supporting reversal and noting the element of hatred said, “We have consistently held, however, that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests. When a law prohibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the equal protection clause.”
But despite the Lawrence ruling, discrimination persists. Gays and lesbians can be fired because of their sexual orientation in 29 states, and it’s worse for transgender people, who can be fired in 35 states because of their sexual orientation. As a result, LGBT people often hide who they are for fear of losing their families, friends, or jobs. In many school districts, LGBT students are bullied and harassed with impunity.
One of the worst forms of abuse is the bullying of gay teens in high school, driving all too many of them to suicide. Here’s an example of the religious right’s barbaric manner of dealing with this form of persecution: In 2011 the Republican-controlled Michigan senate passed “Matt’s Safe School Law.” It was an anti-bullying law, but it exempted religion-motivated bullying from prosecution. Ironically, the bill as originally proposed was a response to the 2002 suicide of a gay teen who had been bullied by his classmates for being gay. Although the intent of the bill was to penalize such behavior, the Republicans modified it to exempt religion-based bullying. The Republican-passed version of the law “allows harassment by teachers and students as long as they can claim their actions are rooted in a ‘sincerely held religious belief or moral conviction.’ Those who truly believe homosexuality is wrong, for example, are free to torment classmates consequence-free.”2
Strong opposition from Democrats caused the bill’s sponsor, Republican senator Rick Jones, to reconsider it. He allowed that it “’may not be perfect,’ but believed it to be ‘a step in the right direction.’” In 2012 in Minnesota, the same barbarism was exhibited when an anti-bullying school policy was deemed by religious right opponents as “unfair to students with conservative values.”3
In many states, opponents of homosexuality are attempting to deny lesbian and gay couples the right to adopt children or become foster parents.4 In Minnesota, a gay couple with children is treated differently under the law with regard to obligations, rights, taxes, benefits, etc., from an identically situated straight couple with children. The state actually has 515 statutes that discriminate against committed domestic partners, including same-sex couples.5
Same-Sex Marriage and the Culture War
There is no rational basis for religion-based hostility toward homosexuality. Of course, the religion-based views of one Christian religion are not the same as those of another, though all are based on the Bible. Liberal religions tend to take a humane approach, choosing the Bible’s “love” verses, while the conservative religions seem to prefer the equally mandatory “kill” verses. Some have tried the middle road of loving the sinner while hating the sin by being socially tolerant. Others have gone further, deciding that God loves everyone, and have ordained gay clergy and married same-sex couples.
Now, with laws against sodomy declared unconstitutional, same-sex marriage has moved to the political front lines in the culture war. So far, only six states and the District of Columbia have legalized same-sex marriage: Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and DC. Most other states have banned it by law or constitutional amendment, and there are ongoing efforts to ban it in the remaining states. This issue is not likely to go away any time soon.
In 2000, California, voters passed Proposition 22, which banned same-sex marriage. Prop 22 ultimately went to the state Supreme Court, which, in 2008, ruled that same-sex marriages were constitutional based on: 1) the state constitution’s equal protection clause; 2) marriage being a civil right; and 3) the state having no compelling interest in prohibiting same-sex marriages. As a result, about 18,000 same-sex couples got married. This set off a campaign to prohibit same-sex marriage by constitutional amendment, so Proposition 8 went on the ballot and was passed. This was challenged in turn and this time the state Supreme Court ruled that Proposition 8 was constitutional because: 1) being a constitutional amendment, its provisions automatically became constitutional; 2) equal protection didn’t apply because only the word “marriage” was relevant and domestic partnerships were not affected; and 3) not being retroactive, existing same-sex marriages were not affected.6
The State of California, despite having its officials named as defendants, had refused to defend the constitutionality of Proposition 8 and left the defense to the religious zealots who had started the petition drive. This placed the religious motive for the enactment front and center, and supporters of same-sex marriage then filed a separate lawsuit on federal constitutional grounds rather than state constitutional grounds. Their case went before federal district court Judge Vaughn Walker who ruled in 2010 that Proposition 8 was unconstitutional, with the Ninth Circuit Court of Appeals affirming the decision in 2012. Judge Walker’s reasons for his ruling (as well as those of the Ninth Circuit Court) demolished all the supposedly “secular” arguments against same sex marriage, finding “no rational basis” to oppose it.7 Walker noted how weak the arguments were for opposing same-sex marriage. He cited all of them and concluded:
The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction. . . . Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8.8
With these controversial state and federal rulings in place, the only place left to go is the United States Supreme Court. What is important here is that, if the Supreme Court rules against Proposition 8, the effect could be to legalize same-sex marriage nationwide. Meanwhile, the Court is expected to rule in 2013 whether the existing federal law—the Defense of Marriage Act—defining marriage as between one man and one woman is constitutional. Whether it recognizes marriage as a civil function with a secular rationale or a theology-based function whose religious traditions should govern society remains to be seen. The current makeup of the Court does not inspire confidence in a secular-based ruling. However, one thing working for advocates of same-sex marriage is that the opponents have found it impossible to come up with arguments that make sense that don’t include “Because God says so.” The Supreme Court might not be willing to so blatantly repudiate the First Amendment’s Establishment Clause. One can only hope.
Sexuality and “Natural Law”
Arguments for denying sexual minorities the same rights the heterosexual majority takes for granted are based on Bible-based religious doctrine, along with a religious interpretation of “natural law” (whatever that might be). Fundamentalists, Catholics and Mormons take it as a given that this “law” has produced males and females for reproductive purposes. Therefore, all sexual activity must be limited to male-female copulation and anything else is unnatural. The Protestant fundamentalists, Mormons, and the U.S. Catholic bishops have mounted a ferocious campaign to outlaw same-sex marriage based on this religious view of natural law. Here is the rationale, from the United States Conference of Catholic Bishops’ 2009 Pastoral Letter:
Marriage is a unique union, a relationship different from all others. It is the permanent bond between one man and one woman whose two-in-one-flesh communion of persons is an indispensable good at the heart of every family and every society. Same-sex unions are incapable of realizing this specific communion of persons. Therefore, attempting to redefine marriage to include such relationships empties the term of its meaning, for it excludes the essential complementarity between man and woman, treating sexual differences as if it were irrelevant to what marriage is.
Male-female complementarity is intrinsic to marriage. It is naturally ordered toward authentic union and the generation of new life. Children are meant to be the gift of the permanent and exclusive union of a husband and wife. A child is meant to have a mother and a father. The true nature of marriage, lived in openness to life, is a witness to the precious gift of the child and to the unique roles of a mother and father. Same-sex unions are incapable of such a witness. Consequently, making them equivalent to marriage disregards the very nature of marriage.
Jesus teaches that marriage is between a man and a woman. “Have you not read that from the beginning the Creator ‘made them male and female’ . . . For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh” (Mt 19:4-6).
. . . Today, advocacy for the legal recognition of various same-sex relationships is often equated with non-discrimination, fairness, equality, and civil rights. However, it is not unjust to oppose legal recognition of same-sex unions, because marriage and same-sex unions are essentially different realities. “The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it” [quoting from the Catholic Church’s 2003 Congregation for the Doctrine of the Faith publication No. 8, “Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons”]. To promote and protect marriage as the union of one man and one woman is itself a matter of justice. In fact, it would be a grave injustice if the state ignored the unique and proper place of husbands and wives, the place of mothers and fathers, and especially the rights of children, who deserve from society clear guidance as they grow to sexual maturity. Indeed, without this protection the state would, in effect, intentionally deprive children of the right to a mother and father.
. . . [T]he Church teaches that homosexual acts “are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved” [quoting from the Catechism of the Catholic Church, No. 2357].
. . . The legal recognition of same-sex unions poses a multifaceted threat to the very fabric of society, striking at the source from which society and culture come and which they are meant to serve. Such recognition affects all people, married and non-married, not only at the fundamental levels of the good of the spouses, the good of children, the intrinsic dignity of every human person, and the common good, but also at the levels of education, cultural imagination and influence, and religious freedom.9
This pastoral letter makes many alarmist claims, but provides not one example from real life of the destruction same-sex marriage supposedly wreaks. Not even a hypothetical example. So now that we have read these dire predictions that the workings of natural law, religious freedom, and civilization as we know it would be destroyed in some mysterious way by same-sex marriage, let’s visit reality, an area with which the bishops seem quite unfamiliar.
The Varieties of Sexual Orientation
The case for equal rights (including same-sex marriage) for sexual minorities stands on much firmer ground than Bible verses and papal pronouncements. The basic problem with the religion-based arguments is misunderstanding of what is meant by “natural law.” A toxic stream of wrongheaded ideas has spewed forth from that misunderstanding, causing needless suffering, hateful acts, and punitive laws. Natural law is not something handed down by a creator god, as religious opponents of same-sex marriage assume. There is no “lawgiver” involved. Natural law, in the only real sense of the term, is simply a description of how nature works, as best we can understand it from observation, experimentation, and testing. And what does all this observation, experimentation, and testing tell us? Nothing at all that is even close to the religious assumptions. It tells us that homosexuality is just one of the more harmless ways nature works. It is not contrary to natural law, but part of it. Religion has no relevance here.
Further deepening the religious confusion is an assumption that the way nature works reflects a purpose. Therefore, since heterosexual sex sometimes produces offspring, that is nature’s purpose. This idea prevails because a great many people are scientifically illiterate, thanks to fundamentalists’ attacks on science in the schools, and the consequent dumbing down of the science curriculum. Fundamentalists attack evolution, denying its massive factual support, and try to replace it with “intelligent design,” which is simply relabeled creationism, and is in no way a scientific theory. (It’s unfalsifiable; it makes no testable predictions.)
Nature is nothing if not prolific and varied. Changes wrought by evolution have produced an assortment of sexual and gender variations and orientations. In humans (and maybe other species), both sexes have observable physical characteristics of the other sex, although usually only the parts for one sex are developed. But physical manifestations of sex are not the only options nature has produced. Often enough, there are psychological variations too, and they direct one’s sexual behavior. The body may be configured for one sex while the brain is configured for the other. The result is that some people are transgender, meaning they don’t conform to the expected behavior patterns of their sex. Transgenders can be any orientation because gender identity and sexual orientation are not the same. Some are simply crossdressers. Some are transsexual, meaning their brain configuration tells them they are one sex, even though their bodies are of the opposite sex. Some transsexuals have sexual reassignment surgery because of this.
And then there are those with Klinefelter’s Syndrome. It is said to affect about one in 1,000 boys. These boys have three sex chromosomes (XXY). Since girls are XX and boys are XY, someone who is XXY is physically a male but infertile, while genetically being both male and female. Such boys can and do have girlfriends, but can be psychologically drawn to female behaviors. They are in reality two sexes in one. If such boys want to marry, which sex should they be able to partner with?
Some states try to deny the right to change one’s sexual configuration to conform to one’s core identity on the grounds that one has to keep the genitalia one is born with. (Why? Who knows?) But what if a baby is born with male and female genitalia, and both are about equally developed? It happens. Doctors used to ask the parents which gender they preferred and would then remove the unwanted parts. However, as these babies grew, sometimes the selected sex did not match an obvious psychological orientation toward the other sex. So now they wait a few years until the child’s gender-expressive behavior tells them which parts to remove.
Here’s a true sex-mixup story I know about first-hand. (I’ve changed only the names.) It should give the Vatican fits trying to work it into their mystical views of sexuality, sexual orientation, anatomical complementarity and who gets to marry whom: When Glen and George met, both were males presenting themselves as women. Psychologically they were essentially females trapped in male bodies. They wanted to get married, but same-sex marriages were not allowed, so George had sex reassignment surgery and became legally Georgia. Glen and Georgia were then able to get married, since they now had the Vatican-approved opposite-sex anatomical complementarity. Then Glen had surgery and became legally Glenda. The result is that Glenda and Georgia are now a legally married female couple that started out as a male couple (although presenting as females), then became a male-female couple before finally becoming the female couple they always wanted to be, thanks to surgery that put their physical and psychological makeup in sync. All is well.
As for what the law says about having sex reassignment surgery to bypass prohibitions against same-sex marriage, it probably depends on the state. For Glen/Glenda and George/Georgia, who live in Minnesota, there is no problem. In 2012, in a case challenging the right of a transgendered female to coverage on her husband’s employer-paid health care plan, a federal district court judge ruled that coverage could not be denied. He noted that the law prohibiting same-sex marriage did not apply and the sex change was irrelevant because “Minnesota law recognizes a married person’s sex when the marriage takes place.”10
Such simple, logical reasoning is not likely to come any time soon from the Vatican’s theologians. Their attempts to figure out what nature’s God is up to when it plays mix-and-match with gender identity, and medical science can end the confusion with a little genital reconfiguration, should be interesting to watch. No doubt the Vatican will deal with this entirely mystical non-problem in whatever way causes the most misery for people whose bodies and brains don’t match up sexually.
It wouldn’t be theology as we’ve always known it to decide there is no harm in letting one’s core psychological orientation prevail as long as no harm is done. It could, in fact, even be theologically demanded. After all, if there is a soul, where would it be located? In the brain! You can amputate or transplant or redesign or artificially replace almost any other part of the body, but you cannot do that with the brain. If it goes, you go. And if there is a soul in there, it goes too. Therefore, if the brain knows its body is really the opposite sex or if it feels sexually oriented to the same sex, then that’s the way it is and the only thing to do is adjust the body (and society’s expectations) to match. Sex reassignment surgery? Fine! Same-sex marriage? Why not? Some churches may raise doctrinal objections and insist that what appears between the legs at birth is ultimately defining and must stay that way. But it’s not the business of government to enforce those doctrines.
Sexuality: Nature’s Shotgun Approach to Species Survival
There is nothing wrong with this sexual mixing and matching other than the prejudicial treatment of LGBT people. It’s just what nature does. Nature has no purpose, only consequences, some of which we perceive as good, some bad, depending on their effects on us. Sexuality, driven by evolutionary processes, is not rigidly heterosexual, as can be observed throughout the animal kingdom. Every form of sexual attraction is out there. It may even be that pedophilia is a natural variation. However, that involves a coercive power relationship that harms children, so, natural or not, our laws prohibit it, just as rape—apparently another natural inclination—is prohibited. We simply have to resist and reject some behaviors to which nature mindlessly inclines us. Homosexuality is not one of them, since it does no harm. Sexually transmitted diseases don’t count. They occur because human contact transmits disease. We pass on diseases by breathing in another’s vicinity, by shaking hands, by a mother kissing her baby. Sexual contact is just another means of transmission.
Because heterosexuality produces offspring, heterosexual orientation predominates in the gene pool. Although the sex drive for homosexual couples does not produce offspring, there is still the emotional bonding that often accompanies sexual relationships—a good thing by itself in terms of social stability and harmony. As consequences go for humans, this has probably worked well if we can assume that prehistoric homosexual childless individuals were free to help raise the children of heterosexuals. Children need watchful care at all times, so the extra help surely aided our species’ survival. Until humans figured out where babies came from, sex was naturally directed by sexual orientation solely because it was enjoyable. Why would it not be? Once paternity was understood, the picture changed drastically.
Although the history of marriage shows many forms and rationales (including same-sex marriage), an overriding reason for its institutionalization was male interest in controlling women to ensure a prolific, no-guesswork paternity and, therefore, inheritance, economic aggrandizement, and ruling authority. Women became men’s property, as noted in the Ten Commandments, and enforced, until recently, by all religions, and even today by some religions. Women were treated legally as men’s property in the United States until around the time of the Civil War. Being in love didn’t become acceptable as a sole reason for marriage until some decades later. As recently as the 1970s, divorces were difficult to get unless one could prove adultery. Being abused didn’t count. I remember well the cottage industry that developed around staging fake adulterous encounters so a divorce could be granted. Those staged encounters didn’t fool anyone, but the letter of the law was upheld, so no questions were asked.
The Bible says Solomon (the wisest of all kings, according to 1 Kings 10:23) had 700 wives and 300 concubines (meaning sex slaves). Where was the one-man, one-woman tradition then? With such exploitation of women now illegal, marriage essentially legalizes a sexuality-based bond without regard for procreation. Reproductive interests have never been the sole justification for marriage in any case. Deliberately childless marriages take place for any number of reasons—financial concerns, physical problems, a need for companionship, even immigration status or the need for health insurance.
Some religions are convinced that same-sex marriage would destroy the institution of marriage. It’s hard to see how. The interests of religion and government are different (or should be where state and church are separate), so religions can set their own rules about whom they will marry. Religion is primarily concerned with rituals and such things as sexual behavior, religious affiliation, and procreation and indoctrination of children. Government is concerned with issues beyond procreation, such as mutual financial and personal responsibilities, inheritance laws, medical care, visitation rights, child custody (not limited to heterosexuals), and so on. Given this, it is socially advantageous to provide the legal benefits of marriage for loving, committed couples, whether gay or straight. Government has no compelling interest in being selective about the sexual orientations of those it marries for socially valid reasons. Those orientations are natural, and if one kind tends to produce children and the other doesn’t, so what?\
Anatomical Complementarity
Religious arguments against same-sex marriage tend to center on anatomy. Their position, put badly, is that since male and female genitalia fit together, and fitting them together often results in offspring, that must be its sole purpose. And because there are offspring, there must necessarily be marriage. Because there is marriage, government has the duty to oversee and protect that arrangement, limiting it to one man and one woman. (Lots of non sequiturs here.) Here’s what Archbishop John C. Nienstedt, of the Archdiocese of St. Paul and Minneapolis wrote in a letter to the editor. He claimed he was just defending reality, not his religious position. The Catholic Church, he said, “does not seek to impose its own beliefs on others . . . . The reality we are defending predates any religion or government. It finds its logic in the complementarity of the human anatomy, as well as the male/female psyche and in the propagation of the human species.” 11
What he meant by the male/female psyche in this context is anyone’s guess. If it’s the emotional aspect of sexuality, that psyche seems to be operating rather nicely for same-sex couples as well. As for anatomical complementarity, people of all sexual orientations have found that there is more than one route to complementarity. If nature was purposeful and wanted sex to be limited to one form of male-female complementarity, all these other options wouldn’t be available—some of them useful in preventing unwanted propagation. One is tempted to think that maybe nature actually is purposeful and finds it useful in natural-selection terms to provide a variety of sexual work-arounds to enable us humans to control this whole sexual orientation/anatomical/psyche/propagation business to our advantage.
And speaking of sexual purposes, I don’t recall ever reading any Vatican pronouncement about the clitoris. Unlike the penis, which has three distinct and useful purposes, the clitoris has only one—pleasure. It has no complementarity function. Yet there it is, conforming fully to natural law, doing nothing but providing the one thing that has historically made the Vatican nervous—sex-related pleasure. No wonder the Vatican is silent on this. Perhaps the Catholic bishops should study a good sex manual and a few books on sexual evolution before they expound on a topic about which they are so obviously dumb as a rock.
On the fundamentalist side, the Rev. Elden Nelson, a Lutheran minister from Plymouth, Minnesota, in reference to a proposed amendment to the Minnesota state constitution that defines marriage as between one man and one woman, says:
There is nothing discriminatory about the Minnesota Marriage Amendment, nor is it a political matter. Neither is it intended as an offense against any individual or group. Rather, it is a moral and ethical matter that finds its basis and answer in the infallible, inerrant and inspired word of God.12
How that squares with the First Amendment’s “Congress shall make no law concerning an establishment of religion” clause he does not say. Those propagating these views always assume that the only relevant part of the First Amendment’s religion clause is “Congress shall make no law . . . prohibiting the free exercise thereof.” That invariably is interpreted by fundamentalists, Mormons, and the Catholic Church as allowing religions to do whatever they wish, with the support of government, however much that destroys the religious freedom of others.
What It’s Like to Be in Marriage Limbo
One view of the same-sex marriage controversy is that the matter could be settled by simply designating marriage as between one man and one woman and creating domestic partnerships that are essentially contractual arrangements for same-sex couples. However, there is no way domestic partnerships can be legally equitable without them being a carbon copy of the marriage laws, so why call them something different? What’s in a name? Nothing, unless the names confer different rights and responsibilities. Domestic partnerships do that. They confer lesser assurances of equity than marriage, in which everything is automatic, no contracts needed.
Project 515 in Minnesota has compiled a list of the 515 Minnesota laws that work to the disadvantage of same-sex couples in domestic partnerships in ways marriage never does. (If it is this bad in a state as historically liberal as Minnesota, it can’t be much better anywhere else.) Below are Project 515 accounts of some of the harmful fallout from this inequity. The stories are true, as are the names except where otherwise noted.13
Trying to Teach Life’s Lessons to Our Children. (Names have been changed.) When Lisa, Susan and their 6-year-old daughter Paige moved to a new city, they chose to bank with Susan’s employee credit union. Wanting to teach their daughter good savings habits, they took Paige with them to open their new accounts and chose to establish one for Paige.
Lisa and Susan completed the required banking forms and were then informed that they could not open a joint account because they were not married. In addition, they could not open an account for Paige, they were told, because Lisa, not Susan, was Paige’s legal parent. This credit union carried the employer’s name, logo and colors in their signage and advertising. The employer had a strong nondiscrimination policy, and about 20% of its employees were not heterosexual. Yet, when Lisa and Susan protested, they were informed that the banking policies were set by the credit union board of directors, not the employer.
To set a good example for Paige, Lisa met with the manager and voiced her concerns about the policies and the lack of alignment with the employer. She expressed her disappointment and humiliation when the credit union rejected them and their daughter as clients. After they left, Paige became very angry and frustrated, holding on to her piggy bank and refusing to give anyone her money.
“Would this also be the policy if an employee who was a grandparent, aunt or uncle wanted to open an account for a child?” Lisa wondered. “If an employee wanted to open a joint account with a brother or sister, would they be refused?”
Sometimes Planning and Legal Work Aren’t Enough. Tim Reardon is a prudent man. When he and his partner Eric decided to have a child through a surrogate, they made certain all the legal documents were in order. They already had a partnership agreement, executed before their commitment ceremony in 2001. They had drafted powers of attorney, health care directives, and every document they could within the restrictions of the law to be certain their relationship to one another and their future children was clear and protected.
Yet when Tess was born in 2003, Tim and Eric waited for a year to get a judge’s order for a birth certificate because the state insisted on DNA testing for proof of paternity. The cost, both monetary and emotional, was enormous. Adding to the emotional burden was a serious health challenge. Three months after Tess’s birth, Eric was diagnosed with a malignant brain tumor. The family life Tim and Eric had dreamed of was thrown into chaos. Tim and Eric returned to their attorney to be certain their paperwork was in order. It had become imperative that Tim was clearly named the person to “call the shots” upon Eric’s death.
Four years later, when Eric was to go from the hospital to a hospice residence, a social worker conducted a financial eligibility screening to determine if Eric was eligible for funds to offset the cost of the hospice residence not covered by either insurance or Medicare. The hospital business office wanted to include Tim’s earnings in the calculation of “household income.” “They wanted to recognize our relationship when it was financially in their best interest,” Tim said. Tim refused. When Eric died a short time later, Tim was informed that the medical examiner would not recognize Tim’s relationship to Eric.
To make matters worse, the cremation society did not consider Tim next of kin, with the right to make decisions about Eric’s remains, even though Tim showed administrators a power of attorney document, a health care directive, and Eric’s will, all clearly naming Tim as the decision maker. Only with the consent of Eric’s mother and father was Tim ultimately allowed to sign the cremation society’s paperwork.
“I felt so violated and angry that at this most vulnerable moment of life, they would not acknowledge our relationship,” Tim said. “All our planning didn’t mean anything to these people. Eric’s wishes didn’t mean anything. This never would have happened to a legal spouse. All it takes is one challenge from a person with an issue or different belief system, and the cost to us in money, time and emotions is enormous—because we have no recourse in the legal system. Any legally married spouse is automatically recognized as next of kin and is granted that right by law with no papers, no lawyers, and no need to prove their relationship at life’s most vulnerable moments—the law protects them from such insult.”
Fighting to Keep One’s Home. (Names have been changed.) Jane’s partner Carol was diagnosed with a terminal illness late in 2004. By the time the disease had progressed to the point that Carol required full time care, she had already spent most of her assets on medical bills. Carol applied for and was placed on medical assistance, which provided her with around-the-clock care in the final months of her life.
Following Carol’s death, the state placed a lien on her home—the home she had shared with Susan for more than 15 years. By law, the state had the legal power to enforce the lien and recover the money it spent for Carol’s medical expenses. Jane was faced with the prospect of selling her home to pay off the state.
However, had Jane and Carol been married, Minnesota law would have protected the home. Current law provides that the state cannot enforce a medical assistance lien on the home of the person who received aid if the person’s spouse still lives in the house. In these cases, the state must wait until after the spouse has died before it can recoup money from the home’s equity.
No Secular Justification
Laws that support unverifiable religious views of sex and marriage have no place in a secular society. They should be nullified as unconstitutional, and some have been, but progress is slow. It does seem, however, that laws discriminating against sexual minorities are on the way out, due to the tenacious political organizing of LGBT people and their supporters. Public opinion is increasingly on their side. Same-sex marriage may be the last battle in the sexual-orientation phase of the culture war. Arguments raised by the Catholic Church and religious right arguing for defining marriage as only between one man and one woman are weak to the point of being ludicrous. None of them make any secular sense. All are based on religious dogma tied to an intractable ignorance of human sexuality. If the religious right zealots had any understanding of how evolution works, they would know that human sexuality as it actually exists (with LGBT people) is a prime example of “natural law”—a natural outcome of the evolutionary process.
To sum up, here is a list of 11 religious arguments against same-sex marriage, in no particular order of validity (since they have none) followed by the view from the real-world:
1. Marriage has always been about procreation so we are not mistreating homosexuals by not allowing same-sex marriage. Our ancestors were wrong about many things, such as slavery and subjugation of women (which marriage facilitated, of course). We abandoned their ideas because they led to mistreatment of subjugated men and women for no worthwhile purpose. We are now abandoning the mistreatment of homosexuals for the same reason.
2. Our sexual organs exist for procreation by a male and a female. Any other use is unnatural. Our sexual organs (the external ones we control) perform several functions, only one of which is procreation. The penis has three functions: urination, pleasure, and procreation. The clitoris has only one function: pleasure (interestingly, the only function common to both sexes). Homosexuality squares with all of these functions, including procreation, which can be, but not necessarily, achieved indirectly through sperm donation.
3. If the human sex drive is not controlled by marriage, limited to male-female couples for procreation, it will be misused in destructive, immoral ways. The human sex drive, being stronger than needed for procreation (thus suggesting its primary purpose for humans is pleasure), can indeed be misused. It is more extravagantly misused by heterosexuals, especially in sexual exploitation of women, but can be misused by homosexuals as well. Controlling one’s sex drive is a common issue for everyone, regardless of orientation.
4. Homosexuality, if it becomes acceptable, will harm society by leading to its degradation. Homosexuality has existed in all societies at all times, sometimes accepted, sometimes not. What society has it ever harmed? None. It has never been prevalent because it involves only a small percentage of the population. It can’t be caught and can’t be taught because it’s a natural orientation, just like heterosexuality.
5. If same-sex marriage becomes legal, what’s to stop polygamous and polyamorous people—even dog lovers and who knows who else—from demanding marriage rights? Probably nothing, but neither now nor throughout history has there been any sign of a widespread interest in such relationships. Same-sex couples feel the same pull of love as opposite sex couples. They value the same personal and emotional commitment that marriage can provide heterosexual couples. There is no sign of any such commitment operating among the other groups (with the exception of a relatively few polyamorous people), and certainly no interest in organizing a political movement around it.
6. Homosexuality, even if appearing to be harmless, exacts a spiritual cost that can lead to perdition. We should not be enabling that fate. Some religious people may believe homosexuality leads to “perdition” (whatever that is), but that is no basis for discriminatory laws against homosexuals. All such laws are a destructive, unconstitutional establishment of religion with no secular justification whatsoever. The Book of Leviticus may have a place in some churches, but there it should stay. It does not belong in our laws.
7. Same-sex marriage will destroy the institution of marriage. Religious people often make this argument, but have yet to provide a single concrete example of such destruction. They always fall back on abstractions. Divorce destroys heterosexual marriages all the time, but we allow it because, for one thing, it’s none of the government’s business, and for another, forcing incompatible couples to stay together only brings pain and misery from which no good ever comes. Does the availability of divorce encourage the dissolution of marriages? Perhaps, but this has nothing to do with same-sex marriages. Perhaps the feared destruction is that of religion’s control over marriage as a sacred institution ordained by God to license a couple to have sex so they can increase and multiply. If so, so be it.
8. Marriage is rooted in religious beliefs and cannot be cut off from that. No one is cutting marriage off from religious beliefs. Religions are free to set their own rules for marriage and to marry or refuse to marry whomever they will. But there is religious marriage and secular marriage, and they have different standards. Religions marry people for their own religious reasons, and governments marry people for their own secular reasons. Generally, the only marriages the state does not allow are those that are coercive or harmful. So, for example, an age of consent is required, and inbreeding by close relatives is not allowed (though if pregnancy is impossible in some cases, why not?).
9. Children need a mother and a father. Yes, but people who did not produce them in the traditional biological way can and do raise happy children. They may have adopted them, used a surrogate mother to bring them to birth, or conceived them by artificial insemination. The only thing that matters is that children grow up in a caring environment with one or more people who love them and help them become productive, responsible adults. Same-sex orientation has never been a hindrance to good parenting, just as heterosexual orientation has never been a guarantee of it.
10. If homosexual relations are natural, what is wrong with adultery, pedophilia, and bestiality if they are also natural behaviors? Yes, those behaviors are probably natural for those who engage in them, but we need to prohibit only those that are harmful. Adults can deal with the harmful effects of adultery on their own. Pedophiles, however, will have to find a way to control that tendency or we will continue to lock them up to ensure the safety of children. As for bestiality, we’d have to check with the beast in question as to any harm done. To most of us, bestiality is just disgusting (or possibly hilarious), but again (as with pedophilia) one runs into the problem of consent—both practices are by their nature nonconsensual. As for homosexuality, there is nothing harmful about it when it’s between consenting adults.
11. If same-sex marriage is approved, there will be harmful civil consequences for those whose religious beliefs cannot allow them to accept it. Yes, there will be consequences—just as there were consequences when civil rights laws were passed. No doubt there were town clerks who lost their jobs when they refused to marry mixed-race couples. No doubt religious adoption services found they could no longer discriminate against mixed-race couples. No doubt there were parents distressed when their children were exposed to public school classes about racial equality and justice. All because traditional views about race had been overturned by law. But that is the price some people have to pay when they can no longer inflict their irrational beliefs on others. Just as society has survived and improved in the absence of punitive racist laws, so will it survive in the absence of punitive marriage laws.
1. Lawrence v. Texas, 123 S. Ct. 2472; 156 L. Ed. 2d 508; 2003 U.S. LEXIS 5013, (2003).
2. Laura Hibbard in The Huffington Post, http://www.huffingtonpost.com/2011/11/04/michigans-matts-safe-schools-law-allows-bullying_n_107649.
3. Maria Elena Baca, “Q&A: Parent group raises school issues,” Minneapolis Star Tribune, Jan. 15, 2012
4. Human Rights Campaign mailing, Feb. 2012. See http://www.hrc.org.
5. “Unequal Under the Law: 515 Ways Minnesota Laws Discriminate Against Couples and Families,” published by Project 515, October 2007. See http://www.project515.org.
6. See http://rationalwiki.org/wiki/Perry_v_Schwartzenegger for a lengthy account of the Proposition 8 controversy.
7. Dahlia Lithwick, “A Brilliant Ruling.” See http://www.slate.com/articles/news_and_politics/jurisprudence/2010/08/a_brilliant_ruling.single.html.
8. Perry v Schwartzenegger, No. C 09-2292 VRW, United States District Court, N.D. California, Northern Division. Aug. 12, 2010.
9. “Marriage: Love and Life in the Divine Plan,” A Pastoral Letter of the United States Conference of Catholic Bishops, Chapter 2, Same-Sex Unions, issued by USCCB, Nov. 17, 2009. To order a copy of this statement, please visit http://www.usccbpublishing.org and click on “New Titles.”
10. Dan Browning, “Health plan can’t deny wife coverage due to sex change,” Minneapolis Star Tribune, April 5, 2012.
11. The Rev. John C. Nienstedt, “Gay Marriage: Church defends reality for the common good,” Minneapolis Star Tribune opinion page, Oct. 8, 2011.
12. The Rev. Elden Nelson, letter to the editor, Minneapolis Star Tribune opinion page, Feb. 21, 2012.
13. “Unequal Under the Law,” op cit.
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