Marriage Equality Is a Civil Right

In an interview last year,Focus on the Family head Jim Daly seemed toconcede that same-sex marriage would be legal sooner or later. As Iwrote earlier this week, that’s because younger Americans largely support the idea. In his interview, Daly suggested that Christians should focus on what marriage meant within their churches. “The piece of paper that you get at the state to recognize your marriage is worthless,” he said. “It’s like registering your car.”

Daly and I agree on that. Not that a marriage license is worthless from a legal perspective, by any means, but rather that it’s worthless from a spiritual perspective. Whether two people are in a state of holy matrimony is a purely private, religious matter. A government-issued license can do nothing to confer sanctity on a relationship. If a church does not consider a marriage valid in the eyes of God, that’s its business. I don’t have to belong to that church. There’s no sense fighting over whether allowing same-sex couples to legally marry diminishes the sanctity of marriage. Legal statuses aren’t sacred.

But as long as the government is going to confer on willing couples the legal status of marriage—and it certainly makes some sense to treat formally committed couples differently in the law—then all couples should have the right to marry. Requiring same-sex couples to call their relationships “civil unions” does little more than symbolically discriminate against them by creating a special, “separate but equal” status for gay people. Consider how offensive it would be to pass a law saying that African-American couples weren’t allowed to marry, but could only enter into civil unions. It wouldn’t be the same.

As I have argued, the case against allowing same-sex couples the same right to marry as heterosexual couples is weak. In a recent essay on Big Think, my colleague Peter Lawler put forward the two strongest arguments in favor of restricting marriage to heterosexual couples. The first is that a heterosexual union is simply what “marriage” has historically meant. The second is that the authors of our Constitution never intended to grant a right to same-sex marriage. Both points are more or less true. But neither really weakens the case for allowing everyone the same legal rights regardless of sexual orientation or gender identity.

Peter is right to say that for much of history marriage has generally had something to do with heterosexual couples conceiving and raising children. But what does it matter if ancient Greeks or colonial Americans didn’t practice same-sex marriage? Like most human societies, both also allowed slavery and treated women as the political inferiors of men. These were not high-water marks of human morality. I don’t need tradition to tell me that slavery and gender discrimination are wrong.

Nor does the semantic question of the historical meaning of the word “marriage” bear at all on the question of what our rights are. In ancient Athens the function of the institution of marriage may have been to produce children to defend the city against Sparta, but that’s certainly not its role in our society. The fact that same-sex couples can’t biologically conceive children hardly explains opposition to same-sex marriage in our society in any case, since there’s little opposition to allowing elderly or infertile couples to marry. The idea that marriage must be about jointly conceiving children—same-sex couples obviously can and do raise children—is generally invoked only where same-sex marriage is concerned.

Peter is also right to say that the authors of our Constitution did not by and large intend to grant the specific right to marry people of the same gender. But the authors of the Constitution generally articulated broad principles rather than enumerating in detail what we can and cannot do. The principle that we are all entitled to “the equal protection of the laws” is no less important—and no less the law—if the authors of the phrase had not worked out all its implications.

An originalist interpretation of the Constitution makes sense to the extent that the laws should not change merely because we use words differently. But to read the laws as nothing more than the narrow intentions of their authors is to ignore what the laws actually say. By writing that no state “shall 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” the authors of the Fourteenth Amendment required each generation to use its best judgment about what life, liberty, and property mean, and about what the equal protection of the laws entails. The law was not written to require that we live forever with the limited perspectives of past generations, but rather that we interpret it by our own lights as well as we can.

The idea that the loving relationship of a same-sex couple is in any way inferior strikes me as a profound moral blindness. Every person should have the legal right to marry whoever they want to marry. At the end of his essay, Peter suggests that if a majority decides marriage should be a certain way, we should not subject the institution of marriage “too rigorously to the abstract logic of rights.” But even if a majority favored forbidding same-sex marriage, it would be wrong to do so. My rights as a human being do not diminish no many how many people vote them away. This is the very essence of the idea of human rights. Not everyone will choose to marry or even welcome the opportunity. But everyone should have the choice.

Gay couple image from Arrow Studio / Shutterstock