Saturday, February 14, 2004

I'm for a Federal Marriage Amendment

Justin Katz over at Dust in the Light sorta/kinda responded to some of my post on gay marriage. He's been fighting the battle against the likes of Andrew Sullivan for quite some time and is understandably exhibiting some attributes of burnout. He pointed out a letter to the editor at the ProJo from Richard A. Matera (Providence) that ran today. To pull from Justin's post:

"If the courts are saying that all couples, regardless of who they are, are entitled to the rights of marriage granted by the state, then the religious ceremony should be separated from the civil. This would preserve marriage as defined by religious groups while opening it up to everyone. (It would mean that those having a religious ceremony would also need a civil ceremony.)"

My argument does run similar to this, but I maintain that the religious ceremony for heterosexuals would automatically be legal. Now, I suppose some of the more liberal Protestant religions, or at least some churches therein, would (and have) allowed gay marriage. This would result in the perception that my solution creates a double standard. How come gays getting "married" in a church wouldn't be automatically legal whereas heterosexual, religious ceremonies would be legal. How can this be separate but equal? That's a valid point. I will attempt to address it a bit later.

Justin goes on to point out a "fatal flaw" in my "more-reasonable" approach (other than the one just mentioned):

"... Mr. Matera cuts right to the fatal flaw in Marc's more-reasonable approach: this movement is subversive to its core. There are no two ways about it. In order to force affirmation of a minority lifestyle, homosexual activists and utopianist dictator-in-a-bottle liberals will push culturally established, nationally understood acceptance of religious ceremonies out of the public square. To liberate sex from the restraints of parenthood and responsibility, religion must go in the closet.

It wouldn't, apparently, be good enough to declare that homosexuals can be married by whoever will marry them, whether religious or secular; either the movement will seek to force churches and synagogs to perform the ceremonies, or they will, as Matera has suggested, seek to make religious ceremonies irrelevant in the civil sphere. That somebody as considerate, respectful of religion, and conservative as Marc has come darn close to the same solution shows how persuasive the argument could be."

Justin is correct, it is a persuasive argument. But I think my insistence on the fact that religious, heterosexual marriages are automatically legal compared to the not-automatically-legal religious "gay marriage" is my line in the sand. Yet, again, how is this rationally, logically, consistent. I'm afraid it might not be. And I guess that's the rub. My priority isn't on "equal", I guess. Instead, my priority is on limiting the power of a minority to dictate to the majority a new set of rules that, in the eyes of many, would sully a cherished institution.

My point is not whether "gay marriage" is right or wrong, my point is that those on both sides have a right to legal union between two consenting adults. But I note that I often hear of how the "religious right" just wants to foist its views and morality onto others. Well, isn't this a case of a different morality being foisted upon others? Must a time-honored interpretation of a valuable institution have its definition altered because of the desires of a minority? At what point does perceived equality become paramount, even if it impinges upon the religious rights of others to practice their faith, including maintaining cherished institutions (such as marriage) as they define them? Especially if there is a method of accomplishing the goals of equality in a legal way, one in which legally-bonded homosexuals will have the same rights and privileges as married heterosexuals. It's called a civil union. But that may just be the problem. It's not called "marriage."

Could it be that it really is just about the word "marriage?" That "gay marriage" proponents feel that "marriage" must be the term applied to their desired legal union? That only that one word, "marriage," confers legitimacy upon their legal union and without the word, they will feel like their union is somehow second class? This thinking is flawed in many areas. Whether they think that calling a legal union between two homosexuals "marriage" would confer legitimacy or not, those who oppose the idea would never, in their hearts and minds, consider their "gay marriage" on equal terms as that of a heterosexual marriage. To my mind, the important thing is that homosexuals attain legal, equal rights and all of the privileges thereof via some sort of civil union. A term does not automatically confer legitimacy. All it will do is antagonize those who will never recognize you as truly married. But, they may be more inclined to recognize that you have legal rights equal to those who are married if they don't feel you are jamming your definition of "marriage" down their throat. They will tolerate you, never accept you. As a conservative, I feel like I'm being merely "tolerated" every day I live in Rhode Island! The right to be left alone is all we can really ask for, isn't it?

Another point is that many would probably refer to you as "married" anyway, even if you "only" had a civil union. Perhaps this semantical argument is just too shallow, but I think it probably has a ring of truth. Instead of going for the home run, "gay marriage" advocates can "settle" for a three-run double; you can get all of the rights of a married heterosexual couple. Sure, it's a "civil union," but you and your friends and like minded people will probably just call you "married" anyway. You can even find a church to have the ceremony in. No state or national government is going to make it illegal for homosexuals to have a church wedding ceremony. If this sounds condescending, it isn't meant to be. But if all of the religious trappings are there, doesn't that satisfy any desire for religious approval that you may have? In summary, you can have a civil union, with equal rights to married people; you can have a religious ceremony, which in and of itself doesn't make your union legal, but does cast religious approval over your union. How is this not really "marriage?" Just because some "right-wing wacko envangelicals" say it isn't? Since when did you worry about what they thought? Remember, you'll get equal rights as a couple and have the option (as you do now, if you can find a willing minister) of a real "church wedding." Haven't you gotten everything you wished for?

But I miss the point again. This is about the state defining marriage for all to include unions between any two consenting adults; straight, gay, or otherwise. Maybe Justin was right when he said:

"In order to force affirmation of a minority lifestyle, homosexual activists and utopianist dictator-in-a-bottle liberals will push culturally established, nationally understood acceptance of religious ceremonies out of the public square. To liberate sex from the restraints of parenthood and responsibility, religion must go in the closet."

Does the government have a right to redefine something on a large scale based on the request of a minority without the consent of a majority? Isn't this what was meant by a "tyranny of the minority?" This brings me right back to some sort of Federal Marriage Amendment. Here is an excerpt from a column from David Limbaugh that sums up my feelings on the necessity for an FMA (my emphasis in bold):

"Congress passed the Federal Defense of Marriage Act (DOMA) in 1997. This law provides that, consistent with the Constitution's Full Faith and Credit Clause, federal territories and possessions and states may refuse to honor same-sex relationships that are treated as marriage under the laws of other states.

The FMA would go further by constitutionally defining marriage as only between a man and a woman. The Amendment would forbid Congress, state legislatures, and federal and state courts from recognizing same-sex marriage. It would also prohibit the courts from sanctioning civil unions, while state legislatures would be free to do so. One of the purposes of the Amendment was to prevent activist courts, like the Massachusetts Supreme Court, from 'legislating' into legitimacy same-sex marriages or unions.

Some conservatives oppose the FMA, believing it doesn't go far enough because it wouldn't restrict Congress and state legislatures from recognizing civil unions, which they believe severely diminish the institution of marriage. Proponents of the Amendment argue that it goes just far enough. It expressly preserves traditional marriage and prohibits judicially created assaults on the institution, yet leaves the decision to sanction civil unions in the hands of the state legislatures, where it ought to be in a federalist system.

I understand the argument that we should leave this decision to states, which have always had sovereignty over family law matters. But if a federal constitutional amendment prohibiting legislatures as well as courts from indirectly undermining traditional marriage by sanctioning civil unions or domestic partnerships could pass under the rigorous amendment procedures our constitution requires, I don't think the principle of federalism or state's rights would be significantly compromised. After all, in the ratification process, an overwhelming majority of states will have spoken democratically.

. . . And while the FMA would still allow state legislatures to recognize civil unions, it would not permit them to recognize same-sex marriages."

David Limbaugh also offers that "we must understand that homosexual activists consider marriage itself as the hill to die on." I guess this is where I have the biggest problem with the "gay marriage" advocates. Just as I disagree with those who would bar homosexuals even from civil unions, I disagree just as much with those who seek to redefine a cherished institution against the will of a majority in the name of equality. Especially when some seem to be doing it just because others cherish the current definition. Some seem to be taking joy in upsetting the apple cart.

I maintain that there is a middle ground. It is derived from something this country has traditionally had a deep reservoir of: pragmatism. American pragmatism may be dying as we find ourselves stratifying to the "left" and to the "right." I confess that I am most often one of those in the latter, but in this case, I'm on the side of compromise. Maybe it is "straddling the fence," but I do empathize with both sides. However, because my conservative nature and distrust of the activist left is strong, I hold that it is important to support enaction of a safeguard against any slippery slope down which the radicals would like to take us. Therefore, I favor a Federal Marriage Amendment. If the "gay marriage" advocates can one day muster up enough support to overturn such a law, than they, and their concept of "gay marriage," will have already gained widespread acceptance in this country.

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