Separating the Powder and the Matches

There are few issues in American life more divisive than that of what constitutes a legitimate marriage. Right on schedule, during the last election campaign, there was a precipitous rise in volume of the national discussions surrounding "gay marriage."  And, like a fish rising to the bait, the American public, both for and against gay marriage, jumped and bit.  I would be uncomfortable making a guess about the extent to which this issue and other social issues affected voters in 2012, but it is clear in the time since the election that this issue is one that is not going away.  It may be considered soon by the Supreme Court, as further proof of the prominence of this discussion nationally.

If it is not going away, it would be worthwhile for people to think clearly about it.  There are lots of different ways to build a case about the merits of gay marriage, from civil rights to religious liberty to questions of definitions of the word marriage itself.  All of those arguments though, it seems to me, come down to questions of priority.  As I listen to the arguments, I can hear compelling points (from their own frames of reference) from both sides.  But in these cases, it seems to me that most of the people who are arguing about this issue aren't hearing each other at all, and that the fears that the two sides have are really not about marriage, per se, but about something else.  Let me elaborate, in hopes that my point will become clear in the process.

Those in favor of gay marriage tend to marshal arguments generally along the lines of human rights.  In other words, it is the right of people to choose who they will marry and love without the government being able to dictate to them whether that relationship is legitimate.  In support of this premise, they have the longstanding tradition of due process, supported by the 4th and 14th amendments to the Constitution, which guarantee that no class of persons may be denied life, liberty, or property without the due process of law.  This principle holds both federally in the states, mandating that states grant the same freedoms as those given by the federal government.  Beyond this legal argument, the other prominent argument is that allowing homosexual marriages does not cause any harm to those who oppose it.

Those not in favor of gay marriage tend to argue that marriage is sacrosanct--that by definition the word entails only heterosexual unions.  The arguments tend to rely on thousands of years of common law practice, rooted ultimately in a combination of religious and secular tradition.  As part of this argument, folks would likely argue that being homosexual should not come with the right to participate in social structures which exclude it by definition, and they would point out that homosexual couples already have the right in many places to civil unions.  The implication here is that there is a construct which is under attack so that it will be redefined in a way that is explicitly contradictory to the thing itself.  There is also a group of religious believers who wish to see their convictions protected before the larger population, if not to propagate those beliefs if given the opportunity.

I have attempted to make these summations of the arguments both fair and general, because I am not trying to rehash all the arguments being made about this topic.  If you look at those arguments carefully, I hope you will see a couple of important things, however.

1.  The arguments being made for and against homosexual marriage are being framed in such a way that they both employ (or could easily be made to employ) constitutional protections to bolster their case.  In the case of those in favor (the pros), they have equal rights.  In the case of those against (the cons), they have religious protections and free speech, as well as precedence of law.

2.  The arguments do not speak, at least as such, about the real presence or sanction of homosexual behavior.  Both sets of arguments seem to assume that homosexuality is a given in our culture.  Neither set of arguments is saying that homosexuality could be either radically encouraged or totally eradicated.  (Admittedly, there are some in both camps who do feel these ways, but those feelings are not necessary to the arguments they offer in support of their position on this particular matter.)

3.  The arguments are not about the domestic realities of a what most would understand as a marriage relationship, up to and including recognition by the state.  Anyone who wishes to be recognized as in a relationship by "the government," at this point in time, can secure recognition of a kind from at least some source.  Likewise, in terms of lived life, no one is saying (as it relates to this argument) people can't live together, or have relationships (including relationships of a sexual nature) with whomever they choose.

4.  The arguments are attempting to prioritize things everyone values, but values differently.  I don't think anyone really questions, for example, equal rights.  There would be significant disagreement about what a right is and what equality is, but in a vacuum, everyone thinks equal rights are important.  It is a core aspect of American life, and to suggest anyone is against human rights is rightly seen as an insult.  Likewise, I don't think anyone is really against the right for people to have their own worldview.  People may think that one worldview is more desirable than another (and everyone does that), but I don't think most people really want to force their worldview on someone else.  They may want someone else to become convinced of their positions, but that is conviction, not tyranny.  A multiplicity of opinions about matters can and should exist in a modern free society.  (As the old proverb says, "A man convinced against his will is of the same opinion still.")

These pieces above are key, because in the rhetoric surrounding this issue, the pros and cons have deployed arguments which makes it sound like they are the enlightened half of the debate, and the other side is some sort of monster.  In truth, it is not that simple.  Homosexuals are no more or less prone to being monsters than heterosexuals, and there are people on both sides of this ongoing debate behaving monstrously.   It is my opinion that the pros and cons are really arguing for two entirely different things, and then deploy arguments which defame the other side for what they don't say.  Let me give you an example.

The recent case of Louis Giglio, an evangelical Christian, being decried in some quarters for a single sermon he preached 20 years ago, is a good example of the problem with the way this issue is being handled in the public square.  Giglio preached a message where, in context, he read entire sections of the Bible, a religious text which he interprets and believes to be truth.  The texts, without any special work required, seem to indicate that homosexual behaviors (at least in that context) are sinful before God.  Giglio, fully in line with his own convictions, suggests that Jesus is the solution for sin, and therefore the solution for homosexuals.  On a purely constitutional basis, this is protected religious speech--a sermon in a church setting to a congregation of people who chose to be present on a topic which, at the time of the sermon, was not getting the attention it is now.  The majority of people in the country, when the sermon was preached, rightly or wrongly, agreed with his position.  That he employed his own interpretational grid on his religious text is beyond question, regardless of whether you think that interpretation is correct.  When he was contacted by President Obama to pray at the inaugural, he was likely selected his humanitarian work to end slavery in the international sex trade.  A portion of the press dug up the sermon in question, and then attacked Giglio as being a bigot and demonized him--for 20 year old protected religious speech (and especially the part where he directly quotes the Bible itself!).  There was no nuance to the discussion, there was no respect for his religious speech. He was pilloried as an advocate for unequal rights, and under pressure the administration withdrew their request, around the same time he volunteered to pull out.  Not only was their no conversation, but the invective was so harsh on both sides that Evangelicals were circling the wagons for a coming societal persecution, and the portions of the LGBT community (and their allies) were calling for Giglio's head.  The pros and the cons drew up even tighter battle lines, and then looked with even more suspicion on the other side.  Fear reigned.

Evangelical Christians (the label in our culture which probably most accurately describes me, in the interest of full disclosure), have been particularly prominent in this discussion.  The caricature of the evangelical in our day by cultural liberals makes them out to be a self-righteous Pharisees, too blinded by hate to care about the rights of just about anyone who doesn't live in the suburbs (while the bit about hate is most certainly false, if my experience is any guide, there is truth to some of the other criticisms).  Inside the movement, evangelicals see themselves as under attack, and they are preparing to be marched to prisons as hate criminals for what they feel are legitimate, defensible, and constitutionally protected religious ideas.  The caricatures couldn't be any more distinct.  What's worse, they make the discussion which we really need even less likely to happen.

I think, however, there is a clear way forward.  It involves ending one single concept in American government.  Just one.  The rest is simply applying the Constitution equally.

The one step?  Remove the word "marriage" from the list of things which the government does, and make it the sole province of religious groups.  (Including atheist unions, as I am considering the lack of religious beliefs to be a distinguishing religious belief.)  Practically, this would mean that the government would recognize only civil unions--no marriages.  Churches would not be permitted to make recognition before the government, only inside their religious traditions.  The matter of what a marriage is would then be left to the economy of the religious square, and the debates could be held there, where it seems to me they belong.  On the other side of the matter, the government would recognize and provide equal rights to any two people who fit the requirements to be married, regardless of their gender/sexual preferences.  Civil unions would be a distinction for the government to view a corporate entity of a set number of people.  The law and tax codes would handle that reality equitably, with all couples having the same kinds of legal and tax benefits from the unions, providing that the conditions required (education, children, etc) applied.  The government would be neatly out of the business of deciding who was married, handling everything from the corporate perspective.   This protects the constitutional rights of all citizens, while also protecting religious speech and convictions.

Spending a moment more on the religious part of the question for a moment, all any couple would need to do to be married in the eyes of God was find a congregation/mosque/temple/etc who shared their belief about marriage.  The matter of what marriage is would become a protected religious conviction.  Taking the example of Christianity, this would allow both heterosexual and homosexual marriage, leaving to denominations, congregations, and individuals to choose the matter based on their preferred religious texts and interpretations.  This would require one additional step--to remove from religious leaders their ability to serve as justices of the peace.  One of the sticky points of this debate as it currently stands is that religious officials in some states are recognized by the government to perform a legal and civil marriages, in what seems to me to be a clear violation of the principle of separation of church and state.  (States like Colorado, which allow anyone to perform a marriage, may be on to something in this regard.)  Removing that yoke from religious leaders should allow them the freedom to act according to their convictions without any of the prickly ramifications of serving a dual role in the current wedding ceremony.

I do not anticipate that this solution would please everyone, but it is the one that provides, to my way of thinking the clearest way forward.  A few questions might be raised.

Would this mean that the government would recognize any group of people (I am sure there would be some who would want to allow multiple-marriage)  who wanted to be recognized as a corporate group for purposes of law?   In short, the answer to this question is yes.  If the government is out of the marriage business, they have no compelling reason to tell groups of people they cannot incorporate.  It might mean a change in some laws, but those are regularly amended anyways.

But what about that ideology that I find so insidious that it must be stamped out at once?!?  This would allow people who believed that to live like they believed it!  Surely you can't mean that?!?  I do mean exactly that.  The government would remain out of it (agnostic, so to speak), and leave that debate to the people who want to get down and dirty in the marketplace of ideas.  So long as no laws were broken, there would be no need to end the dialogue on the issue.  You think that one or other of the sides on this matter is wrong?  Find a high place, and shout it from there.  Just be prepared for someone to shout back.  For those who don't wish to participate, but want to live in peace, they may occasionally deal with one of the shouters, but it is my belief, that most people, at their core, wish to live and let live.  Even in the midst of disagreement, many people are able to be civil and admit differences without rancor.  Maybe with all the shouting happening in a couple of places, the sane people could have meaningful interaction without feeling the need to choose a side automatically.

Would you classify anti-homosexual opinions as hate-speech which would need to be illegal?  No.  It seems to me that if you're going to protect real free speech and religious conviction, you can't do such a thing.  As long as rights are equal, the marketplace of ideas should be able to bear ideas--even ones which some people think are really bad.  If it is true that the opinion that homosexual marriage should not be allowed is substandard in the marketplace of ideas, that same marketplace will dispense of it without ceremony.  There would be no need to make it illegal.  Going further, I think one definition of tyranny is mandating what kind of speech will be allowed.  Individuals should be allowed to believe as they will, even if their beliefs are odious or terrible, so long as they do not impinge on the life, liberty or property of others.  Happiness is not property, nor is it guaranteed.  If you don't want someone telling you they disagree with you, stay home.   If your happiness is tied up with everyone agreeing with you, you probably don't have much happiness, nor do you deserve it.  Having a belief, in my opinion, entails the conviction that you are right, even in the face of those who would make your life difficult.  If they are stalking you or going out of their way to grief you, that is one thing.  But someone telling you they disagree publicly is the price of a free society.

Why are you taking away the right for people to be married before God and the state?  Put simply, I'm not.  I'm simply requiring that the two things happen separately.  You want to be married in the eyes of the state?  Fill out the paperwork, and wait for the certificate in the mail or go down to the register of deeds and get it handled quicker.  You want to be married in the eyes of your religious tradition?  Then go to them and do what they require.  Simple.

Aren't you saying that marriage isn't a civil right?   Not at all.  I'm simply saying that the government can't adjudicate what marriage is, because the concept is inherently culturally bound in an increasingly complex world.  If the United States is truly to be a robust and multi-cultural society, our government must change to allow for difference of opinion on matters of worldview.  Marriage and family are core to those worldviews in one way or another.  In my proposal, the government leaves those questions aside to protect the core things which all citizens should be afforded regardless of their placement on the worldview spectrum.

Why would you take away the right of marriage from heterosexuals?  I don't believe I am.  There is nothing in what I have said above which says that heterosexuals can't be married in the same way they always have.  I would take away the exclusive right of homosexuals to be married.

Aren't you changing the definition of marriage by doing this?  No.  I am leaving the defining of the word to smaller communities to decide for themselves, without compulsion from the government.  I fully expect at the end, that there will be a multiplicity of definitions.  But that is no different than it is now--the various definitions already exist, which is part of the issue.  I am only ending the competition between various groups to have their definition be the one exclusively in use by the government of the United States.

This proposal is an attempt to keep the powder and the matches separate.  Religious freedom, free speech, and equal rights under the law are core elements of the American experiment.  But our history proves that when the issues become mixed, the results can be explosive.  Keeping things in the right categories ensures the maximum amount of freedom that we can have as Americans, while maintaining the robust conversations which make our country great and protecting the rights of all citizens.