by Thomas A. Foster on Nov 13, 2008
The recent decision of California voters to take away the right of gays and lesbians to marry highlights the danger of exposing civil rights protection to popular vote.
Earlier this year, the Supreme Court of California ruled that under the California constitution gays and lesbians had the same right as heterosexuals to be married by the state. The decision in no way infringed upon the privilege of churches to sanctify marriages as they saw fit.
The issue is of course not limited to California. In last week’s election, voters in Arizona and Florida decided to deny gays and lesbians the right to marry, with Florida also choosing to deny both heterosexual and homosexual couples the option of civil unions. In Arkansas, voters decided that gay and lesbian parents should not be allowed to adopt or act as foster parents by restricting those activities to married couples.
Marriage in this country (as it was even in Puritan New England) is a civil contract. Thus, superior courts in California, Massachusetts and Connecticut weighing this right against their states’ constitutions found that its denial violates the civil rights of gays and lesbians. This is precisely why opponents of gay marriage place the issue on a referendum, in hope that voters will change their constitutions to be more restrictive.
Civil marriage and church marriage are two concepts that should be kept separate. This separation is at least as old as the U.S. Constitution. In states that allow gay marriages, as would have been the case in California if Proposition 8 had failed, churches maintain their right to permit or deny their religious ceremonies of marriage.
The Founding Fathers purposefully avoided writing into the Constitution any sanctioning of religion by the state. They had learned lessons from their own history both in Europe and the American colonies.
Puritan New England founded its colonial enterprise with some official divisions between state and church — not allowing ministers to hold office, for example. But the Puritans also cited the Bible to support capital punishment and other laws. Thus, adultery, then defined as sex between a married woman with either a single or married man (and not a married man with a single woman), was punishable by death.
Today the West criticizes regimes that enforce religious strictures by governmental means, such as, for example, Iran’s death penalty against homosexual sex.
When supporters of defining marriage as between one man and one woman argue that allowing gay and lesbians to marry offends their religious faith, they are invoking a long and troubled entanglement of faith and sexuality in this country. Because the Bible is frequently invoked in such arguments, presumably the faith invoked is Christianity. But given this logic the problem quickly arises as to whose faith the law should follow, given that we are an increasingly diverse nation.
Few would argue that the law should derive from Catholicism, for example, with its prohibition on birth control. Still, does legal birth control not offend a Catholic’s faith? Fewer still would argue that the law should be designed to avoid offending those sects of Mormonism that still claim that prohibitions against polygamy violate their faith. Even fewer would argue that sex altogether be illegal, lest we violate those who identify as Shakers today and embrace celibacy.
California’s legal battles surrounding gay marriage have yet to be settled. Legal challenges have been initiated in response to the Californians’ recent vote. Eventually, the U.S. Supreme Court be called upon to rule on the matter. Still in legal limbo is the status of the 18,000 gays and lesbians who married when California briefly provided that right to them.
In all such cases, spurious arguments about gay and lesbian marriages invoke selective readings of the Bible, faulty interpretations of the Founding Fathers, and lessons not learned from American history or from current religiously intolerant regimes in the world today.
The outcome of the recent referendum in California shows us that unless Americans can recognize that their own individual religious beliefs should not be the basis for the legal and constitutional structure of the country, civil rights should no longer be put to public vote.
Thomas A. Foster teaches history at DePaul University. He is the author of "Sex and the Eighteenth-Century Man: Massachusetts and the History of Sexuality in America" (2006) and editor of "New Men: Manliness in Early America" (2011) .