There's a telling section in the Iowa Supreme Court's opinion in Varnum v. Brien, that hasn't gotten as much attention as it should. The section is only about four pages long, but it says everything about the current state of the debate over gay marriage - and, in general, about gays in civil society.
After addressing the five key arguments against same-sex marriage, and explaining why they are not sufficient to justify state discrimination against same-sex couples, the court then reaches out to answer a sixth argument that the government had not made: religious opposition:
The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained- even fundamental-religious belief.
That is both exactly right and extremely important. Courts do not normally need to look at arguments no one has explicitly made, but this is an argument that does, indeed, better identify the source of the opposition to gay marriage. It explains why so many of us who argue about equal protection for gays wind up against our wills in discussions about theology.
Historically, homosexuality has faced three major barriers to acceptance: (1) it was a crime; (2) it was a sickness; and (3) it was a sin. In 1961, Illinois became the first state to decriminalize sodomy (both straight and gay), a movement that ended in 2003 with the U.S. Supreme Court's decision in Lawrence v. Texas, overturning the last remaining sodomy laws in the U.S. And in 1973, the American Psychiatric Association removed homosexuality from its list of mental disorders.
That means the animating argument against homosexuality - and specifically gay marriage - remains a religious one: it is a sin.
The Iowa court acknowledged the importance of this to religious believers, but pointed out that this is not the only religious view. As evidenced by friend-of-the-court briefs in the case, many religions also "have strong religious views that yield the opposite conclusion."
No secular court can - or should - try to intervene in theological matters, one of the least controversial parts of the first amendment's religious protections. The court concluded the secular arguments are either circular, inconsistent, beside the point, or involve rules (such as procreation) that heterosexuals do not (and would not) impose on themselves. While religious arguments may be profoundly convincing to believers, civil society is made up of too many people with too many varied religious (and irreligious) beliefs for a court to have to take sides.
That makes arguments about homosexuality different from those
surrounding abortion. Abortion, as a public policy matter,
involves a sin that is also a well-recognized crime: murder. The
issue is at what stage a fetus is a person for purposes of applying
that secular rule.
But homosexuality - and gay marriage in particular -- no longer
involves any secular crime. Nor is having a homosexual orientation
any sort of disease that disables anyone from making voluntary,
adult decisions that are lawful. Lacking either of those
underpinnings, the public debate over homosexuality returns
endlessly and exhaustingly to religion.
Whether or not we are a "Christian Nation," we are decidedly not a nation whose courts could conceivably resolve disputes among Christians about what is or is not sinful. Yet that is exactly the dispute that now exists, not only among Christians, but among Jews, Muslims and even religions that are not as focused on sin as Western religions tend to be.
This is a family squabble among those religions -- with some families more exercised about the subject than others. For their part, though, the courts continue to search for other reasons to justify civil discrimination, and increasingly are having a hard time of it.
3 Comments for “Sin City”
posted by Regan DuCasse on
I’ll say it again, over and over and it’s hard to dispute as an untruth or not factual.
Religions, their evolutions and range of influence are ALL cultural invention.
Being homosexual is not.
Gender, in nature is not rigidly binary, nor should be so artificially maintained is if it is, or as a MORAL issue.
Especially since exceptional gender variance is a matter of medical condition and doesn’t not render a person suddenly incapable of being civilized and attending to their social responsibilities.
Had religious cultures not set up such rigid standards of gender and impossibly reactionary rationales around orientation, we wouldn’t be having this discussion.
Another thing I find annoying is the disingenuousness that prevails around religious ABUSE. The historical context and what religious abuse has occurred towards other groups in America.
I would expect religious people to be FAR more cautious, honest and fair about even having the discussion and where to put it best to good use.
I already find the most influential religions highly suspect as it is. Blaming women for the troubles of the world. Having all the texts exclusively written and enforced by men.
I’ll be impressed when women can be priests and have more power and influence on the world’s faith communities.
Were it not for the tenacity of a few mothers in the safety of their sons…there would BE no Abraham, Moses, Jesus, Buddha, Confuscious…or Mohammed.
posted by Bobby on
“I’ll be impressed when women can be priests and have more power and influence on the world’s faith communities.”
—Why would that make a difference? Violeta Chamorrow was president of Nicaragua, she did a terrible job (just like a man) and she was openly homophobic.
We cannot assume that women in power will do a better job.
posted by Tom Scharbach on
“Whether or not we are a ?Christian Nation,? we are decidedly not a nation whose courts could conceivably resolve disputes among Christians about what is or is not sinful. Yet that is exactly the dispute that now exists, not only among Christians, but among Jews, Muslims and even religions that are not as focused on sin as Western religions tend to be.”
We do not need, in the courts or in the legislatures, to resolve disputes about what is or is not a sin. Instead, we need to resolve disputes about what is best for our society on religiously-neutral grounds.
The question of same-sex marriage, in this respect, is exactly the same as the question of civil-law remarriage after divorce.
In Christian theology, and in practice for Roman Catholics, Missouri Synod Lutherans and other populous Christian denominations, remarriage after divorce is adultery, not marriage.
Yet our society permits remarriage of divorced men and women at civil law, whether or not the marriages are recognized by Christians who believe remarriage to be adultery and deeply sinful.
Why? Because our society has a strong and legitimate interest in stable relationships among couples, in legal protection of the children of such couples, in orderly and predictable property and inheritance rights, and so on, so our civil marriage laws reflect that interest, without regard to the question of sin.
When confronted with the argument that “homosexuality is a sin” as a reason why our society should not extend marriage to same-sex couples, we should confront the question directly and clearly, without becoming involved in the argument about whether or not homosexuality is a sin.
When I’m talking with Christians who want to talk about sin, I concede the point that most Christians believe that homosexuality is a sin, just as most Christians believe that adultery is a sin.
But then I go to work.
I point out that in a time when large numbers of gays and lesbians are in long-term relationships and raising children, our society has a strong and legitimate interest in stable relationships among couples, in legal protection of the children of such couples, in orderly and predictable property and inheritance rights, and so on,
I help the person I’m talking to draw the distinction between religious belief and societal interest, and use civil remarriage after divorce as an example of how our civil society should approach same-sex marriage.
Sometimes they get it. Usually they don’t get it, but I think that’s because they don’t want to get it.