This past Wednesday (October 25, 2006), the New Jersey Supreme Court ruled in favor of gay marriage, voting 4-3 to require the state legislature to change state marriage laws to include gay couples, or provide some other way, such as civil unions, for gay couples to be included in the social and finiancial benefits afforded heterosexual married couples. And the three judges who dissented, far from saying that the ruling that passed was wrong, actually would have preferred that the action - that of granting homosexual couples the same rights as heterosexual couples - be taken directly by the court, rather than delegated to the legislature.
Clearly the three dissenting judges were more liberal on the subject, but this might be a case where the more liberal position was not necessarily the best one. Did I really just say that? Yes, I did. And here’s why. One of the conservative positions on this issue has been their opposition to so-called activist judges who they fear will issue rulings that tend to favor gay marriage while ignoring the so-called will of the people. If the court had taken the action themselves, they would have opened themselves up to this kind of criticism from the right; by giving the responsibility back to the legislature, the court has given the people the opportunity to shape the law in a way that satisfies both the court and the people - should the people take this unique opportunity to see the light before it is forced upon their will by the court. The court has made a decision, but left the specifics of that decision up to the will of the people. Sounds like a good idea, but can the will of the people be trusted?
The will of people who have not spent their lives studying law and hearing cases and writing legal opinions, people who have no concept of what the separation of church and state really means, people who subscribe to the laws of the bible they claim to hold in such reverance only to the extent that those laws aren’t, you know, inconvenient to them in any way. The will of people, who, for example, once preferred that schools be segregated. The will of people who voted for George W. Bush the second time.
But let’s step aside from that argument for just a moment, even though it is sort of enjoyable. What, exactly, is the will of all these people? The will of these people is that gays not be allowed to marry.
Okay. Why not?
It’s just wrong.
Okay. Why?
Well...it’s just not natural.
Okay. Would you mind introducing me to all these inorganic gay people you know? I’d love to meet them. Are they like Data from Star Trek?
Well, I mean...it’s just wrong, isn’t it?
Sure it is. In the Bible. Homosexuality is wrong in the Bible, but it’s a protected class in the United States when it comes to just about everything except marriage and presiding over certain congregations (unless you’re really good at keeping secrets and can manage to train yourself only to blow the little altar boys you’re damn sure will keep their mouths shut about it). There are a lot of trespasses in the Bible, and a lot of things you are supposed to do if ye commit one of them unto your lord.
Of course, that’s all Old Testament nonsense. All of those Old Testament penalties were commuted down to one simple prayer in the New Testament; and even that is still nonsense, but now it’s nonsense that is a bit more expedient. It is far easier to utter a few Our Fathers than it is, say, to bring unto your lord a ram without blemish from the flock.
A quick glimpse at a few more of these “trespasses” reveals (skim the eleventh book of Leviticus if you doubt me here) that thou shalt not eat rabbit, pig, shrimp, scallop, oyster, clam, crab, lobster, squid, or octopus, owing to such arbitrary things as cud and scales and whatnot. And you can’t touch them if they’re dead, either, which isn’t a big thing - who really goes around groping dead seafood, apart from, say, fishers of men? - except for the fact that we loves us some football here in America (where we have, conveniently, perverted the term for a sport that the rest of the world loves and about which we know nothing, and have therefore dubbed soccer - and isn’t it odd that we use the term football to describe a game in which exactly two of the fifty-three players on each team ever get to touch the ball with their feet?) and gather round the telly every Sunday afternoon (probably this is a “trespass,” too, the day being Sunday and all) to watch a bunch of fellows compete to see which of their teams can score the most points by passing into the opposing team’s end zone (and doesn’t this act sound vaguely like sodomy, another of those “abominations?”) a ball made from the skin of a dead pig. Oh, and don’t forget that those fellows who are touching the carcass of that unclean, dead animal are doing so on the Sabbath, while on the clock. Better warm up the tar and feathers - or start gathering the stones for the stoning.
So...we have situational ethics and relativism with respect to the reading of Leviticus. It’s not okay for Moses to work on the Sabbath, but it is okay for Peyton Manning to do it. It’s not okay for Aaron to eat the unclean animal, but you go ahead and get that double pepperoni pizza with bacon. Fine. If you are religious, go ahead and apply the rule of your lord in any way you see fit; after all, you made up your day of judgment in the first place, so only you should be worried about having to answer for your hypocrisy when that day arrives. St. Peter’s interview of Pat Robertson alone is going to take a good two to three weeks.
But here’s where we trip another continental drift divide - you can’t apply that kind of biblical law to actions of the state, here meant to include government in any form at any level, from the Federal all the way down to local government at, say, the county level. Not without violating the First Amendment to the United States Constitution.
Marriage licenses are issued by the clerk of the county court. If a marriage license is refused to a gay couple, the refusal is based either on a law on the books (say, a state law prohibiting such at thing) or the biblical law that prohibits a man from lying with a man as he lies with a woman (Lev. 18:22) and vice versa, although, very technically, it’s not in there, which probably explains why people are more comfortable with lesbians than they are with gay men. Neither can hold without violating the First Amendment - the state law (or any statute at any level of government) goes back to the biblical law, and to uphold the biblical law in a governmental statute is tacit endorsement of the religion that expounds the law.
The problem, of course, even if you can get past the religious hypocrisy, is the idea of the nuclear family, which is the societal result of the embrace of marriage. People will say that the nuclear family is the cornerstone of society. Romantically, that is true; technically, it is not. Human beings are equipped with reason and speech, which separate them from the lower animals, and invest them with the ability to procreate in more ways than just having a fertile male mount a fertile woman and engage in intercourse at a particular time of the month until such time as the male has ejaculated millions of his little paddlers into the woman’s eager birth canal, into which it is hoped that a fertile egg shall descend in enough time to catch one of the intrepid little paddlers before he expires from the effort.
Such is the difference between humans - who conceived of sperm banks - and chimpanzees, who get it on outdoors and yet share better than 99% of their DNA with humans. It’s not illegal for unmarried women to have babies by artificial insemination; it’s not even illegal for gay couples to bear children this way; and it’s not illegal for gay couples to adopt children. The nuclear family exists in nature, but so does alpha male dominance in the family structure - and who would argue in favor of that in twenty-first century America?
Here’s the point (just when you were sure that I didn’t have one): there can be no law banning gay marriage that does not violate the First Amendment, and no judge who understands this terribly obvious premise and writes opinions based upon it can be thought of as activist anymore than he or she can be thought of as reasonable.
That America is so slow to accept this demonstrates just how slowly the sun of reason rises above the horizon of religion. We celebrate (if only to ourselves) when we read that this or that court has made it legal for gays to marry, and we do so because this is a big deal, a sign of progress. The real celebration will come when we read headlines like this and no longer think of them as a surprise.
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