Now, I’m no lawyer, but I have some thoughts, Any lawyers who come upon this are free to slice and dice the argument as they like. This will, of course, be a brief sketch of the idea, not a comprehensive argument.
Marriage and family
Now, those who think about marriage rights in the United States, as well as many other Western nations, have had to deal with the question of gay marriage in recent years. And while I know some atheists who oppose gay marriage, it is my opinion that their opposition to such things are ultimately based upon cultural values and traditions which are carried to us on the back of religious doctrines and tradition. That is, while homophobia, discrimination, etc are natural human phenomena which are merely magnified and perpetuated by the many kinds of religious institutions, it is primarily religion that is the social basis for opposition to equal marriage rights. There simply is no coherent argument against gay marriage. Religious arguments, while still not coherent when seen from the outside, are at least more internally consistent.
The so-called definition of marriage is deeply problematic, and not challenged often enough. The idea that it is only marriage when institutions, both civil and religious, wed one man and one woman, is not particularly traditional or universal. The history of marriage, which is too complicated to summarize effectively here, is one based upon property relationships. Contained within but also found outside of the traditional religious scriptures of many faiths is the idea that a wife is property, and the idea that marriage is a union of two people whom love one-another and both enter into willingly is a relatively modern idea. The idea of the nuclear family, with (stay-at-home) mother, (bread-winning) father, and children (and possibly grandma or an uncle or aunt being around) is an idealized picture that is not more than a hundred years old. Sure, families may have looked that way previous to that, but it was not the definition of family until more recently.
The bottom line is the traditionally conservative definition of marriage, and therefore of family, is not actually traditional. It is a conservative notion, for sure, but it seeks to conserve an idea which is younger than the airplane or the automobile. In a world that moves and thinks faster, where innovation is the bedrock of many economies, it is absurd that we should expect cultural and personal ideas not to change. Marriage has already changed from a hierarchical property relationship to one between consenting equals, and it will continue to change as we learn more about ourselves and what we are capable of.
But change into what? Into whatever consenting, mature, and responsible adults want it to change into. We are, after all, the arbiters of our own culture. We bow to no universal definitions or standards. Or, at least, we shouldn’t.
Descrimination is not allowed under the law in Western “Democracies” (I’m not getting into that today…). In the United States, Title VII protects people from “discrimination based on race, color, religion, sex, or national origin,” and many other nations have similar types of laws. Now, this may not seem like a way to argue about marriage (and perhaps it is not, ultimately) but allow me to present an argument. Similar or very different arguments might have to be levied in the legal whirlwind of other nations, but I’m an American, so I’ll pretend no other places exist for a little while, as is our way.
Let’s say, hypothetically, that a religious institution would start marrying homosexuals in the United States. And, let’s say, this church wanted to do so throughout the united states, even in states that don’t recognize or allow gay marriage. And, let’s say, the church proclaims that this act is part of their religious doctrine. Now, despite the fact that Christian, Jewish, Mormon, and Islamic texts say otherwise, there are other religious institutions that could, hypothetically, do so without this contradiction. Hindus, for example (As far as I can remember) don’t have the same problem with homosexuality. And what about the Shinto? Ah, how we always forget about them, don’t we? But it does not matter what religious group steps forward to do this, because the first amendment protects all religious views.
Wouldn’t these acts and doctrines, by whatever religious group that decides to act in such a way, be a challenge to the state not recognizing gay marriage? In the face of such an act, the state and/or federal government not allowing these marriages to be recognized equally with a Catholic, Jewish, or Hindu marriage seems to be religious discrimination issue. Would a religious institution who had, as part of their beliefs, the idea that anyone should be free to marry anyone, be discriminated against if they tried to do so?
Now, I know how I would respond to this. I would say that there is a distinction between what a church does within it’s doors and what the state is compelled to recognize. That is, the Temple of Holy Perversity can marry Adam and Steve, Lilith and Eve, or (perhaps) Adam, Steve and Eve, but that does not compel the state to recognize this union legally, with all the rights and privileges that come with it. That is, the marriage could be a religious one, but not a civil one. A person who took this road might argue, as some do, that marriage is a religious institution and whatever legal rights “married” people get now is really a civil union we call ‘marriage’ for the sake of simplicity and tradition. They might argue that the state should only recognize civil unions, and not any marriage that a religion can conceive of. Many people seem to be moving in this direction, although it contains seeds of further problems associated with discrimination.
Why, for example, should the government recognize the civil union of Billy and Barbara while rejecting Bobby and Mike? On what basis does it accept one type of civil union and not another? Tradition? Is this traditional distinction not based upon a biased practiced which has been perpetuated by religious bigotry and centuries of discrimination against homosexuality? Would accepting this traditional idea, carried to us by religion, not a way to respect one set of religious traditions over ones that might not accept those traditions? In short, isn’t the civil union compromise merely a way to shovel off the question of discrimination and religious preferential treatment one step further down the line?
It also seems to me (and my legal understanding of the issue gets fuzzy here) that the term “marriage” not only is not a mere religious term (because religion has usurped the idea, much like it has done to morality), but that to allow one type of union between people to have automatic civil rights and benefits while denying it to others seems to be an inequality that is not only unfair, but possibly illegal. For the states or the federal government to recognize one type of union while not another, especially if where that line lays just [sarcasm]happens [/sarcasm] to overwhelmingly coincide with the lines between religious opinions in our culture, seems a little like discrimination based upon religion to me.
I’m going to start my own religion
Now, since it is unlikely that any established church or religious institution is going to take this step, even though many specific congregations are in favor of gay marriage, we might have to start our own. And of course, since I’m an atheist, it might not be me. Or maybe not. Humanism, for example, is recognized as a religion, legally, according to some precedent. And while many atheists, including myself, are not particularly comfortable with having atheism recognized as a religion (because it’s not a religion), I will admit that in the legal sense there is meaning to talking about it as if it were. This is not a double-standard, because the point of the law against discrimination, as I understand it, is to protect people from discrimination based on whatever religious position they take, not what religion they adhere to. So while atheism is not a religion, it is protected in the same way as any religion would be.
So, could Ethical Culture, Secular Humanism, or any sect thereof be the group that takes this step? Sure. And if this group starts performing ceremonies which marry two men, two women, or groups of people and these people who have all decided, as adults of their own free will, to enter into this arrangement, then does the state have to recognize it? Perhaps not, but what happens when these people start losing their jobs as a result of it. Can’t they point to their religious group, who not only blessed the union but performed it as part of their religious beliefs, and say that there are being discriminated based upon their religion?
And couldn’t they also point to the traditional religious groups, point to the fact that those who attend and marry in those mainstream places of worship don’t face this discrimination, and say that’s not fair! That’s discrimination! and be right?
Not only morally, but legally?
That’s my question.
It is a question that has implications for not only gay marriage, but polyamorous marriage. And while much of the LGBTQ community does not want to address the larger polyamory issue when it comes to marriage (a political decision, of course), I believe that it is a question that my generation will see come to more public exposure in my lifetime. Will we solve it? Well, these things change slowly, but if the polyamory community can get itself into the public sphere the way atheists did over the last 10 years, we might be able to make some headway.
There is a lot of work to be done.
3 thoughts on “Marriage rights and religious discrimination”
The court would throw out that lawsuit in about 5 minutes. I promise you, the FLDS Church has already tried suing for the right to polygamy. It’s a non-starter. Not giving legal recognition to a marriage performed by a religious institution is a far cry from prohibiting the free practice of such religion, which is all that’s protected by the First Amendment. Even if it were, the government is free to prohibit religious practices that it disfavors for non-religious reasons. So long as it’s applied even-handedly, and isn’t passed for the purpose of prohibiting a religious practice, it’s legal.
The only successful legal challenges to gay marriage bans are pursued on equal protection grounds.
Well, I figured that there was something I was missing. it’s a shame, because this issue seems so simple from a moral point of view, but it seems so hard to crack legally. In any case, I’ll leave the post as is. It may not be legally insightful, but it seems a waste to toss it anyway.
One of the first things that I learned about the law (well before law school) was that courts make it very clear that, in their interpretation, the Constitution (and especially the Bill of Rights) does not actually mean what it says.
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