Advocates of gay marriage gathered in Washington this week to hear the arguments presented at the Supreme Court, with some justices hinting that they are afraid to move too quickly on the issue. But that's because they were hearing the wrong argument. The same sex marriage debate should not be about gay rights but about the hallowed separation of church and state. Talk of gay rights has drowned out a more promising argument against bans on same sex marriage.
The language of gay rights invites comparisons to the rights of racial minorities or women. Although some claim that gays and lesbians are born that way, same sex marriage detractors protest otherwise, maintaining that being gay is indeed a choice. But this whole business of choice--one that is central to the gay rights logic--seems irrelevant. Does it really matter whether being gay is a choice? If one could choose one's race, would that suddenly make racism legitimate? I would hope not.
Add insult to injury, the rhetoric of gay rights invites the charge of judicial activism. If unelected federal judges interpret the Equal Protection Clause of the Constitution to protect gays and lesbians, it looks as if they are creating rights rather than simply enforcing pre-existing ones. And this may be the exact concern for some of the justices. After all, the Equal Protection Clause, ratified as part of the Fourteenth Amendment in 1868, does not mention the word "gay." Those who framed the amendment did not have gay rights in mind.
Now I realize that the language of gay rights evokes the struggle for civil rights and racial equality. But it is precisely this analogy between race and sexuality that invites detractors to balk. It invites detractors to say that while sexuality is a choice being black is not. Why should the Court need to decide this issue, even inviting a charge of judicial activism, when there is a less contentious alternative? Those who make this all-too-familiar argument, then, face a needless argumentative hurdle in explaining how the Constitution's guarantee of "equal protection" affirms the rights of gays and lesbians.
I'm not saying that this burden can't be met but there's an easier way to strike down bans on same sex marriage, a way that avoids the gay rights rhetoric. Simply put, such bans violate the separation of church and state. They violate the First Amendment's Establishment Clause that requires that government "shall make no law respecting an establishment of religion." This clause requires that laws and policies have a secular purpose, that they not be based on religious rationales. For instance, in 1968 the Court invalidated an Arkansas law that forbade the teaching of evolution in public schools, reasoning that government may not promote or foster a particular religious theory.
This principle of non-establishment stands to invalidate bans on same sex marriage. After all, what is the reason for limiting marriage just to opposite sex couples? Rationales about procreation cannot do the explanatory work as the state allows infertile couples to marry. It does not condition the institution on one's ability to procreate. Rationales that permitting same sex marriage will negatively affect heterosexual marriage seem equally specious.
For instance, Massachusetts began issuing same-sex marriage licenses in 2004. The divorce rate in 2007 for the state was 2.3 per 1000 people, which was less than the average rate for the rest of the country. In fact, states that ban same sex marriage have adopted "no fault" divorce. No fault divorce laws mean that a spouse can procure a divorce for any reason or no reason at all. If the worry is protecting heterosexual marriage, why aren't states seeking to repeal such divorce laws?
Ultimately, limiting marriage just to opposite sex couples must be about some religious view of marriage. According to the Pew Forum on Religion and Public Life, many religious groups object to same-sex marriage on precisely such grounds. For instance, the U.S. Conference of Catholic Bishops justifies their position on grounds that "marriage is a faithful, exclusive and lifelong union between one man and one woman. . . . Moreover, we believe the natural institution of marriage has been blessed and elevated by Christ Jesus to the dignity of a sacrament." When Republican Senator Rob Portman of Ohio announced last week that he now supports same sex marriage, religious conservatives accused him of turning "his back on Christianity." But the Establishment Clause rules out these kinds of religiously based rationales. Just as the state may not prohibit the teaching of evolution, believing that such teaching is at odds with a certain religious world-view, so too may it not limit marriage just to opposite sex couples, believing that marriage between those of the same sex is a sin or at odds with some religious view of marriage. By focusing on the Establishment Clause, the Court would be appealing to a longstanding principle of our Constitution. This approach would not be seen as creating new constitutional rights but rather enforcing an already recognized principle of the separation of church and state.
A law that limited marriage just to those who are religious--under the theory that atheists cannot appreciate the sanctity of the obligation--would not require us to invoke the rights of atheists. Such a limitation, like a prohibition on same sex marriage, violates the separation of church and state. A justice who strikes down such a prohibition is not redefining marriage but rather making clear the implications of a constitutional commitment to non-establishment.
Why isn't this argument being made? Perhaps advocates are hesitant to talk about religion, precisely because this would play into the hands of detractors who invoke religious arguments to defend bans on same sex marriage. But ironically, in so doing, detractors invoke reasons that are already off limits under the Constitution. So we do better to turn the religious argument, which is often made against same sex marriage, on its head--make it a force for same sex marriage. It may be more promising to call out same sex marriage detractors as religious partisans rather than emphasize the language gay rights.