I will be the first to admit that as I was growing up, never
did I foresee a time wherein homosexual citizens and their civil rights would
even be acknowledged on a national level, let alone become the focus of a most
heated and frankly ugly political battle. Frankly, as a gay teen growing up in
the 1980s in a small, largely conservative community there was one abundant
message I did receive with clarity: If you are gay, shut up, hide away, or get
out. So 25 years later…a span which included joining the LDS (Mormon) Church, a
mixed-orientation marriage (I married a straight woman), fathering three sons,
surviving my own severe depression and suicidal activity and finally coming
out…this entire national-level battle is in a word: surreal. I cannot believe I
live in a time where 12-year-olds come out as gay, date and have typical
adolescent experiences and now, in ever increasing numbers of US states, can
grow up to get married and raise children. The world is becoming a different
place. And I seriously think it is a difference for the better.
There are
many, of course, who disagree with me on that point. There are those who
believe that the American culture and social fabric has not gotten better with
advances in marriage and family equality, but rather has degraded. I hold that
the beauty of the America I was born into as a gay citizen is that those who
have different views from mine, particularly those that come from a deep
religious conviction, are protected
beliefs. I may not agree that homosexuality is sinful and I may not agree
that homosexuals should be denied the civil rights of marriage and family.
However, at the very core of my being, I would stand to fight and defend the
constitutional rights of our religious citizens to hold and to express their
diverse beliefs. I would put my own life on the line to ensure that those who
are religious were not denied the freedoms of speech, belief, and association.
That is the double-edge sword of living in a so-called free society: I must be willing to defend the very
freedoms of those who believe the complete opposite from me. And so, I accept
that as the price of citizenship.
At the same
time, however, it is important for me to recognize that the foundation of the
separation of church and state, so vehemently advocated over and over again by
founding father Thomas Jefferson is once again in a tenuous place. While the
tide of public understanding and acceptance of homosexuality as a biological
and social diversity is clearly moving forward, there are those who argue that
by recognizing marriage equality as a constitutional right the government is
crossing that line of separation. It seems impossible, from the discourse as I
have experienced it, to clarify for those who believe differently from me, that
this civil rights movement is not an attack on religious freedom. Though gay
marriages are becoming legal as the civil contract that they are, no religious
institution would ever be forced to perform such a marriage as contrary to
their beliefs. And in fact, I look forward to a time when a gay couple, denied a
marriage ceremony by their denomination does litigate the argument because it
is very clear that the couple will lose such a case and provide the needed
assurance of this fact to those fearing the worst. For the courts to demand a
religious group to extend its beliefs on gay marriage is ludicrous. The
government would, at that point, be clearly establishing itself as a religious
power. And that in my opinion would be a no-brainer. I don’t believe any US
Supreme Court Justice currently living, would go so far as to allow the
government to dictate religious beliefs and doctrine. According to the
doctrines of many predominant religious groups in the United States,
homosexuality is sinful, unnatural, and cannot be supported through such an act
as sacred to adherents as marriage. These beliefs cannot be regulated by the
government without a clear violation of the First Amendment of the US
Constitution. No church, synagogue, mosque, or other religious place could be
forced to conduct a gay marriage. Only shifts of doctrines and religious
culture could ever facilitate such a change which would obviously have to come
internally through the adherents of a specific faith group. However, in spite
of the clear logic of this argument, I find no way to make headway with anyone
who clings to marriage equality as an encroachment upon so called “religious
freedom.”
So I find
that the only thing I can do is address some of the other important aspects of
this civil discourse that have been previously ignored. To that end, I feel
compelled to write to clarify what is happening from the perspective of the
heart of the problem: language. It is my observation that there is a great deal
of rhetorical tactic used in this battle that must be called out and clarified.
And at the heart of it at the moment, is the phrase “religious freedom” itself which
seems to be the clear direction that marriage equality opponents are taking in
their political objection.
What is religious freedom?
According to the First Amendment of the US Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”1 this statement has been consistently interpreted to mean that the government shall not establish a state religion nor shall the government prohibit the free practice of religion. Therefore all religious belief must be free. There have however, been precedents which have clarified that the freedom of religious belief does not equate to the freedom of religious practice. Interestingly, it is the Church of Jesus Christ of Latter-day Saints (Mormon Church) itself which has tested this difference in thought in its historical practice of polygamy in the United States. In the mid 19th century, LDS members were literally driven from their homes, deprived of their lives and property and forced west (OUTSIDE of what was then the United States…get that?...forced to leave the country) because of their religious belief; forced literally outside the boundaries of the nation and its moral circle. This was clearly a violation of the constitutional rights of those who were citizens of the nation. The courts of the time upheld that the US Constitution protected the freedom to be Mormon, but denied them the right to act Mormon. This is a massive irony given that, in relation to homosexuality, the official position of the Church of Jesus Christ of Latter-day Saints is that “same-sex attraction itself is not a sin, but yielding to it is.”2 Essentially, it is acceptable to be gay but it is not acceptable to act gay.
I will not
digress into a discussion of the nature of homosexuality and the divergent
views of it. That is a time-worn and frankly fruitless discussion. And as I
stated earlier, I may view homosexuality from a very different belief system
than some of my religious contemporaries, but I would place my own life at risk
to protect the right to have and express that different belief. However it is
also important to acknowledge that the government has taken steps in our
history to differentiate protected beliefs
from practices. Through the 19th
century legal action of officially outlawing polygamy and (arguably) curtailing
its practice, the nation eventually accepted that practices and beliefs were
not equally protected by the constitution when it was deemed that the practice
itself was harmful to individuals or society at large (e.g. human sacrifice as
a religious practice, etc.)3
With this precedent
firmly in place, it became clear that the government established some ability
to regulate the practices of religion, thought admittedly, not the beliefs.
Because of this, I can understand quite well the animosity and fear that exists
within religious groups related to their practices. Particularly the LDS Church
which has worked intentionally for years to distance itself from the
association with its former polygamous history. An in-depth reflection upon the
19th century interpretations of law (and blind eye toward acts of
lawless immorality against the LDS people) leads one to conclude that these
violations were unjust and motivated by nothing more than fear, ignorance, hatred
and bigotry. Interestingly, in the
present context of the debates about gay marriage, the tides have turned.
And those who were, over 150 years ago, persecuted and robbed of their rights as
religious American citizens are now utilizing this same mentality to exercise group
power over the rights of gay American citizens. Those religious leaders who object to gay marriage are taking the tactic of this beliefs vs. practice precedent
and extending that argument to gay marriage through legal actions that cite
religious and poorly supported academic sources affirming their belief that gays who marry
and/or raise children are damaging or at best have unknown outcomes upon
children4. Of course, this positioning is contrasted by much more rigorous
and plentiful scientific literature on the topic that indicate sexual orientation
or parental couple gender is irrelevant as it is not related to negative child
health outcomes.5 It also harkens back to the rhetorical arguments
against LDS polygamy which suggested the alternative form of marriage, if not
outlawed, would lead to human sacrifice as a religious observance.
There are
fundamentally different beliefs on the two sides of this marriage equality
debate, each side holding firm to their beliefs and evidence. Therefore it is
clear that it is unlikely that arguing these differing beliefs is a
fruitful direction in the name of social resolution on this matter. What is not
clear in the minds of many however, are the definitions of religious freedom
and marriage. It is this need that I wish to invite thinking persons everywhere
to consider.
First, it
is the clear and unquestionable position of the laws of the United States that
marriage is a civil contract. Was this not the case, marriage would not
require legal recognition through licensing and regulation through family law.
Marriage does not require the approval, sanctification, or permission of any
religious body in order to be granted and acknowledged. It does, however,
require the approval and permission of the government as a legal and binding
contract. And as such, marriage is a civil
act which comes with privileges and rights such as tax benefits, child
custody, and inheritance, is cannot be denied to all citizens according to the Fourteen
Amendment of the United States Constitution which states:
“No state shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.”6
Second, hearkening
back to the statements of the First Amendment, it is clear that what cannot be
dictated is the religious belief about marriage. Any all religious persons have
the right to believe about marriage whatever their doctrine dictates; they may
believe that gay marriage is wrong based upon any doctrine they choose. However
these beliefs cannot dictate the practice of marriage as a civil contract. If
that were the case, as I stated earlier, then the state would be in the
business of religion. In reality, it is this very acknowledgement of marriage
as a social contract in the power of the law that protects churches from
solemnizing gay marriages should it be against their belief system. Gay
citizens wishing to get married can most certainly be turned down for a
religious ceremony because beliefs are protected and religious approvals or
permissions are not even required. Instant protection of the freedom of
religious belief is evident in the laws extending to the foundation of the
county.
And this is
where the religious freedom argument against legalizing gay marriage falls
apart, in my opinion; it is in the efforts to enact laws forbidding gay
marriage as a civil right based on a religious belief. In this case, that is a
massive encroachment of the line of separation between church and state and it
stings of a 150-year pendulum swing for organizations like the LDS Church.
Seeking to use political process and influence en mass based upon the belief that homosexuality is against the
will of God and thus damaging to individuals and society is not a defense of
religious freedom of belief (which is
clearly NOT being impinged upon) but rather it is an act of religious control of the state. In this case it is
not civil control of religious practice as was the case in polygamy in the 19th
century, but rather it is the religious control of civil practice in the
present day that is the conflict. Additionally, the predominant
religious voices in the national spotlight against gay marriage are not the
total of religious voices on this matter. There are a number of
denominations and sects within the Abrahamic realms of US culture that hold
religious beliefs that gay marriage IS sanctified and acceptable as a
fundamental part of their doctrine.7 Were singular religious beliefs
about marriage to be imposed upon all persons in the United States
religious or not, then that would be a clear violation of the United States
Constitution. This is where religious freedom and religious
control can once again clearly differentiated. The state cannot define
religious belief. To enact national and state legislation to prohibit
homosexuals from marriage would be, quite simply, to enforce a singular
religious belief upon the entire nation.
“No state shall make or enforce any
law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.”
How can anti-marriage
equality legislation be a defense of religious freedom if only one religious
point of view is permitted and codified into law, effectively merging religion and state into
one? To me, this is a threat much larger to religious freedom than gay marriage
ever was because it forces one to ask the question "which religions are permitted to have freedom?"
1.
US Const. amend. I. Print.
2. Official
Website of the Church of Jesus Christ of Latter-day Saints. Retrieved 1/10/2014
http://www.mormonsandgays.org/
3. U.S.
Supreme Court. Reynolds v. U.S., 98 U.S. 145 (1878).
4. “Protect
the Children”. Dallin H. Oaks. General Conference Address, Saturday Afternoon
Session. October, 2012.
5. “Promoting
the Wellbeing of Children Whose Parents are Gay or Lesbian.” Policy Statement.
American Academy of Pediatrics. April, 2013.
6. US
Const. amend. XIV. Print.
7. "LGBT-Affirming Religious Groups". Retrieved 1/10/2014 http://en.wikipedia.org/wiki/LGBT-affirming_religious_groups
