An Argument for Same-Sex Marriage

Religious Freedom, Sexual Freedom, and Public Expressions of Civic Equality

Emily R. Gill

• Publisher: Georgetown University Press
• Year: 2012
• Print ISBN: 9781589019201
• eBook ISBN: 9781589019218
• Topic: Social Sciences
• Subtopic: LGBT Studies
• Index: Social Sciences

The relationship between religious belief and sexuality as personal attributes exhibits some provocative comparisons. Despite the nonestablishment of religion in the United States and the constitutional guarantee of free exercise, Christianity functions as the religious and moral standard in America. Ethical views that do not fit within this consensus often go unrecognized as moral values. Similarly, in the realm of sexual orientation, heterosexuality is seen as the yardstick by which sexual practices are measured. The notion that "alternative" sexual practices like homosexuality could possess ethical significance is often overlooked or ignored.

In her new book, An Argument for Same-Sex Marriage, political scientist Emily Gill draws an extended comparison between religious belief and sexuality, both central components of one’s personal identity. Using the religion clause of the First Amendment as a foundation, Gill contends that, just as US law and policy ensure that citizens may express religious beliefs as they see fit, it should also ensure that citizens may marry as they see fit. Civil marriage, according to Gill, is a public institution, and the exclusion of some couples from a state institution is a public expression of civic inequality.

An Argument for Same-Sex Marriage is a passionate and timely treatment of the various arguments for and against same-sex marriage and how those arguments reflect our collective sense of morality and civic equality. It will appeal to readers who have an interest in gay and lesbian studies, political theory, constitutional law, and the role of religion in the contemporary United States.

CHAPTER 1
Religion and Sexuality

Setting the Stage

The current controversy over the legitimacy of same-sex marriage reveals a number of fault lines both in our conception of citizenship and also in our thinking about the relationship of church and state in a modern liberal democracy. Marriage is in many ways a private, consensual relationship, yet its contours are defined by public policy. It is entered by a civil contract, yet it may also be religiously sanctioned by clergy invested with civil authority. In the United States the First Amendment prohibition against establishment of religion implies that the nature of the institution of marriage should not be dictated by religious beliefs. Yet the First Amendment guarantee of the free exercise of religion suggests that religious citizens, like nonreligious citizens with strong moral and ethical convictions, may seek to shape civil institutions so that these reflect their sincere beliefs.

This work was inspired by competing accounts regarding whether including same-sex couples in the institution of marriage constitutes approval or endorsement of same-sex relationships. Upon reflection, parallels appear between this controversy and two others: controversy over the establishment or endorsement of religious belief, as well as controversy over justifications offered for the free exercise of such beliefs. Although same-sex marriage is independently a popular topic of debate, I examine this subject through the prism of the religion clauses of the First Amendment because many debates over sexual orientation and the recognition of same-sex marriage mirror debates over the proper application of the religion clauses. Tension between these clauses is commonly acknowledged. Attempts to avoid the establishment of religion can increase the perceived secularity of the common culture, making the free exercise of religion more difficult for some. On the other hand, attempts to ease the free exercise of religion, as in equal access to forums or benefits by religious groups, can seem like an establishment of religion.

Like religious faith, sexual orientation is a central facet of one’s identity. Even today many assume that most others are Christian and regard non-Christians as deviants from the true faith. Similarly, the assumption that most others are heterosexual has historically been the social and especially the legal norm, with sodomy laws representing a condemnation of homosexuality. Gays, lesbians, and bisexuals have in most cases been tolerated at best, expected to practice their “religions” discreetly so as not to disturb the equanimity of those of the dominant “faith” or consensus. The status quo could be described as establishing heterosexuality—until 2003, when the Supreme Court struck down all remaining antisodomy laws in Lawrence v. Texas. Only seventeen years before Lawrence, the court upheld the Georgia antisodomy law in Bowers v. Hardwick (478 U.S. 186 [1986]). Although such prosecutions were uncommon, until Lawrence individuals could be prosecuted where state antisodomy statutes existed. A criminal record and sometimes sex offender registration followed individuals convicted under these statutes, and the specter of such a record haunted countless others who knew they could be subject to conviction if apprehended and prosecuted. Moreover, before Lawrence individuals known to experience same-sex attraction could be objects of contempt, subject to discrimination for no other reason than the fact that they were breaking the law. However, exactly what the “disestablishment” represented by Lawrence means or should mean is still under discussion, to say the least.

Although disestablishment of a majority religion logically implies greater free exercise by followers of minority religions, traditionalists may believe that such a move disadvantages them when their own religious practice includes presenting their beliefs and moral teachings as superior to those of others. The same is true of sexual orientation. That is, the elevation of competing sexual orientations or “faiths” through equal access to jobs, housing, and perhaps marriage appears to traditionalists to be a hostile and competing way to establish a religion. Equal access means that the majority religion (broadly Judeo-Christian) or the majority sexual orientation (heterosexual) is no longer the one true faith—or at least, it is no longer the only one that is publicly recognized (leaving others to exist on the fringes of society). On the other hand, to those with nontraditional sexual orientations restricting state-sanctioned civil marriage to opposite-sex couples is also a type of establishment of religion. Although civil marriage does not require adherence to traditional religious beliefs, civil marriage in the West originated in such beliefs. Moreover restricting civil marriage to opposite-sex couples denies particular benefits to and imposes certain burdens on same-sex couples that traditional couples do not experience.

Sexual orientation and intimate life is a central constituent of identity, just as religious belief and practice are. As Martha Nussbaum (2010) explains, sexual orientation is like religion “in being intimately personal, connected to a sense of life’s ultimate significance, and utterly nontrivial. Like religion, it [sexual orientation] appears to be something in which authenticity, or the involvement of conscience, is central. We understand that it goes to the heart of people’s self-definition, their search for identity and self-expression” (39; see 36–41, 60–61). Likewise I believe that the denial of marriage to same-sex couples is equivalent to a denial of their free exercise of religion. This can be true in the narrow sense, in the case of same-sex couples who adhere to faith traditions that require a formal religious commitment as well as a civil one. A denial of the free exercise of religion may also apply more broadly, however, for couples who are not traditionally religious but for whom a formal civil commitment is central to and partly constitutive of what it means to them to be partners in a committed relationship.

A few commentators have drawn provocative comparisons between religious belief and practice and sexual orientation and practice (McConnell 1998; Jakobsen and Pellegrini 2004; Laycock 2008; Metz 2010; Nussbaum 2010). As far as I am aware, however, none have engaged in an extended comparison of religious belief and practice and same-sex marriage. Several initial parallels present themselves. First, the liberal polity has typically viewed sexuality as a private matter. Like cultural or religious affiliation, sexuality may be deemed of no concern to public authority; even more than culture or religion, it falls within the sphere of the intimate lives of individuals. Thus it seems doubly private. Yet public authority forbids some sexual practices, just as it forbids some religious practices. This parallel may go unnoticed because religion is generally associated primarily with belief, and the practices that flow from it are considered beneficial to society, without and sometimes despite evidence to the contrary. Sexuality, in contrast, connotes practice or action as well as diverse value judgments, and its nontraditional manifestations more readily raise the specter of harm. In both cases, however, the issue arises as to whether or when the state has a compelling interest in abrogating free exercise, and whether doing so constitutes or maintains an establishment of religion.

In a second parallel between religion and sexuality, the attribution of privacy to sexuality admirably suits people who want to preserve the traditionally dominant consensus that nonconformists can comfortably exist on the fringes of the polity. This view holds that those whose sexual orientation is nontraditional need not and should not be the subjects of public policy that appears to constitute approval of their practices. This state of affairs parallels that in some tolerant political entities that have an established state religion: Those of dissenting faiths are free to practice their religion as long as they do not disturb the appearance of consensus. However, even political entities without an official religion sometimes fear some unfamiliar religions and establish obstacles to their practice. In the United States, for example, Wiccans are often mistakenly classified as Satanists and are harassed, both socially and legally, as “a threat to God, Christianity, and/or American society” (Cookson 2003, 139). As a matter of formal policy, public authority takes notice of sexuality by confining civil marriage (in most states) to contracts between men and women and by prohibiting gays and lesbians from serving openly in the armed forces until 2010. Public authority also takes notice of religious faith or its equivalent by exempting conscientious objectors from military service, but this practice is one of accommodation rather than prohibition. Overall, the ostensibly private character of both religion and sexuality is belied by public attention that is both social and legal.

Finally, with respect to both religious faith and sexuality, I am committed to the value of personal autonomy. Autonomy comprises not only the freedom to pursue what one judges to be good and to define this good in one’s own manner, but also the capacity to engage in rational scrutiny of and critical reflection on one’s projects and goals. This focus on the capacity for autonomy may seem to accord poorly with the topic of sexuality. People who champion the right of gays and lesbians to equal recognition and citizenship typically base these claims on the unchosen nature of sexual orientation, arguing that individuals should not suffer disadvantages because of constituents of their identities that they did not choose. However, I believe that although sexual orientation, like initial religious identity, may be unchosen, how one handles or responds to that orientation is something that one chooses or affirms. Like religious affiliation, sexual orientation should therefore be respected in a liberal polity not because it is unchosen but rather because it is a central facet of personal identity (Gill 2001, 175–217; Jakobsen and Pellegrini 2004, 97–101). Such respect does not mean, however, that society should permit all sexual or religious practices simply because they fulfill, upon critical reflection, some individuals’ conceptions of the good. For example, neither sexual abuse nor human sacrifice in the name of religious belief needs to be permitted. But because sexual orientation, like religious faith, is critically important to personal identity, individuals who engage in legally acceptable practices in both areas should be accorded the same measure of consideration and respect. However, although religious belief is often best served by public noninterference, living out one’s sexual orientation may require not only noninterference—as in the deconstitutionalization of antisodomy laws—but also positive action through public policy, such as removing barriers preventing same-sex couples from committing to a civil marriage impelled by their conscientious beliefs. In this chapter I discuss religious belief, the history of marriage, and conceptions of national citizenship as they affect society’s views of same-sex marriage.

The Claims of Religious Belief

Public attitudes toward sexual orientation provide an interesting contrast with attitudes toward religious belief. Most people, at least in theory, accord equal consideration and respect to all individuals who engage in religious practices legally acceptable in the liberal polity. Most agree that religious practice is a matter of personal obligation, desire, or choice, but that the expression of religious belief is open to all. They do not argue that respect for diversity requires public policies that privilege the convictions of those who dislike certain manifestations of religious belief over the convictions of those who simply wish to engage in their own religious practices without loss of respect or civic standing. Yet when it comes to issues of sexuality, many people move in the opposite direction. They suggest that although individuals with seemingly distasteful sexual practices should be accorded grudging toleration, they should adopt a low profile and not receive respect equal to that accorded to those who pursue more conventional practices. Many argue that although sexuality is a personal matter, its public expression, as in civil marriage, may be regulated, even to the detriment of those who simply desire equal access to a public institution freely available to other couples. Finally, many argue that liberal hospitality shown to diversity means that persons in the majority who dislike certain sexual practices possess an equal or even greater entitlement to shape public policy governing these practices than do those individuals who engage in these practices.

Those who frown on same-sex relationships often want public policy to reflect their disapproval, arguing that recognition of these relationships connotes approval of what they view as immoral sexual activity. Following the 2004 reelection of President George W. Bush, many commentators remarked that the balance of power in that election was held by the “values voters,” those for whom moral values connected with abortion, same-sex marriage, and stem cell research outweighed other issues such as the economy and foreign policy. Although exit polls indicated that 22 percent of voters reported that “moral values” were paramount in their choice for president, the construction of this category was in some ways ambiguous. As journalist Peter Steinfels (2004) observed at the time, “If the polls of voters had constructed an equivalent catchall economic category adding concern about health care and taxes to that about jobs and growth, it would have been the top concern of 33 percent of the voters. If the poll findings had combined concern about terrorism with concern about Iraq, as apparently many voters did, the resulting category would have ranked first, with 34 percent of the voters.” Steinfels noted that although stem cell research is supported by many, same-sex marriage is not, whereas opinions on legal access to abortion fall somewhat between these first two issues. In other words, when the category of moral issues is subdivided, people are not united in their opinions. Furthermore, he asked, “Are not moral values also at stake in decisions about war, in drawing lines against torture, in addressing poverty or in providing desperately needed housing and health care? … All of a nation’s common life, not just sexual matters or personal behavior, is shot through with moral and ethical issues” (Steinfels 2004; see also Feldblum 2009, 212–14). Although he argued that people’s specific concerns must be addressed regarding all of these issues, Steinfels implied not only that moral issues are legion, but also that people differ in the way they identify and define moral issues and that this difference is crucial. By 2009 the percentage of voters who said that moral values would matter most if they were voting then for president fell to merely 10 percent, whereas concern over the economy and jobs rose from 20 percent in 2004 to 50 percent in 2009 (Dionne 2009).

Recognition of diversity among moral issues has been growing among both evangelicals and Roman Catholics. A number of evangelical church pastors have spoken out about traditionally liberal issues such as HIV/AIDS and poverty (Luo and Goodstein 2007). In 2008 a large group of members of the conservative Southern Baptist Convention signed a declaration on climate change calling “all Christians to return to a biblical mandate to guard the world God created” (Banerjee 2008). Douglas Kmiec, a staunch Roman Catholic opponent of the Supreme Court’s pro-choice abortion decision, Roe v. Wade, decided in 2008 to support Democratic presidential candidate Barack Obama because prohibiting abortion may be just one of many ways to promote a culture of life. “To think you have done a generous thing for your neighbor or that you have built up a culture of life just because you voted for a candidate who … wants to overturn Roe v. Wade is far too thin an understanding of the Catholic faith,” explained Kmiec (Dionne 2008). Not only do all individuals have differing views on what counts as moral values, but those with seemingly traditional definitions may also expand their conceptions in some contexts.

The commentator George Will was therefore correct, I believe, when he observed in 2006 that liberals who promote a more equitable distribution of income, libertarians who oppose public attempts to inculcate morality, and social conservatives who believe that the public nurturing of morality is necessary to preserve liberty all vote according to their values. Thus, he noted, “by ratifying the social conservatives’ monopoly of the label ‘values voters,’ the media are furthering the fiction that these voters are somehow more morally awake than others.” In sum, aspiring presidential candidates “are and remain busy courting only values voters, because there is no other kind” (Will 2006). For the present purposes, I consider both opponents and proponents of same-sex marriage to be “values voters” who argue and act on their conscientious beliefs. It serves no purpose for each side to vilify the other as acting in bad faith. Nevertheless, each of us must still argue for our conviction that some constellations of values are superior to others as guides to our common life as citizens of a liberal democratic polity.

One way that the tension over the manifestation of moral values has become apparent is found in heightened sensitivity to the question of whether those with religious sensibilities are being treated fairly in the formation of public policy. Criticizing John Rawls’s position that individuals should form their own conceptions of the good, William Galston argues that a public commitment to Enlightenment rationalism “tends to exclude individuals and groups that do not place a high value on personal autonomy and revisable plans of life” (Galston 1991, 153; see also 130, 276, 329n12). If liberal democracy is to be neutral with regard to rival conceptions of the good (Dworkin 1985, 191; Dworkin 1978, 272), Galston says, the state cannot promote personal autonomy “without throwing its weight behind a conception of the human good unrelated to the functional needs of its sociopolitical institutions and at odds with the deep beliefs of many of its loyal citizens. As a political matter, liberal freedom entails the right to live unexamined as well as examined lives” (Galston 1991, 254).

This tension is particularly acute when one interprets the practice of religious beliefs as requiring a context that permeates the whole of life. Galston explains, “If, to be fully effective, a religious doctrine requires control over the totality of individual life, including the formative social and political environment, then the classic liberal demand that religion be practiced privately amounts to a substantive restriction on the free exercise of that religion” (Galston 1991, 277). Although a liberal society is pluralistic, the range of its pluralism excludes some kinds of groups; and “for those who are left out, it is hard to see how liberalism can be experienced as anything other than an assault” (149; see 143–49). Alternatively, as Stephen Carter describes, liberal pluralism accepts the moral opinions of individuals from diverse belief systems—unless these opinions are grounded in religious convictions. Although the public square is formally open, he observes, “The legal culture that guards the public square still seems most comfortable thinking of religion as a hobby, something done in privacy, something that mature, public-spirited adults do not use as the basis for politics” (Carter 1993, 54; see also 218).

A large body of literature addresses the legitimacy of using religious reasons as possible justifications for public policy (e.g., Greenawalt 1995; Perry 1997; Audi and Wolterstorff 1997; Audi 2000). Robert Audi, for example, argues for governmental neutrality between religion and nonreligion, because even state preference that favors religion in general tends to reflect the interests of historically dominant religious groups. Therefore he advocates principles of secular rationale, or the requirement of adequate secular reasons for advocacy, and secular motivation, or the impetus to advocate a policy even in the absence of religious reasons (Audi 1997, 25, 28–29). Governments may, however, advocate or adopt policies that have the effect of advancing religion—as in declaring state holidays when a majority of people want them, or establishing an educational voucher system that includes religious schools—as long as the justification is not intrinsically religious (Audi 2000, 128, 98; see also 117–18, 181). Nicholas Wolterstorff, on the other hand, also advocates neutrality but interprets it as impartiality, under which a government that offers state aid to any schools, for example, must offer equitable state aid to all schools, religious or not (Wolterstorff 1997b, 75–76; see 115–16; Wolterstorff 1997a, 149). Wolterstorff believes that theorists such as Rawls are mistaken to think that reasonable and rational citizens, through the application of public reason, will arrive at a consensus on which all can agree (Wolterstorff 1997b, 99–102). Moreover it is not equitable to insist that citizens refrain from applying their comprehensive perspectives, conventionally religious or not, to public policy. Wolterstorff explains, “Their religion is not, for them, about something other than their social and political existence; it is also about their social and political existence. Accordingly, to require of them that they not base their decisions and discussions concerning political issues on their religion is to infringe, inequitably, on the free exercise of their religion” (105). These religious believers exemplify the integralists, described by Nancy Rosenblum, who are alienated by living “the divided life of believer and citizen. Integralists want to be able to conduct themselves according to the injunctions of religious law and authority in every sphere of everyday life, and to see their faith mirrored in public life” (Rosenblum 2000a, 15).

The question of being fair to those with religious sensibilities as well as those without them is further complicated by historical changes in claims regarding what fairness entails. As Rosenblum explains, although marginalized groups have historically claimed religious exemptions from the effects of general laws, now all groups make these claims. “Religious associations want not only exemption from certain obligations but also a share of public benefits, and courts and legislatures are forced to articulate the grounds on which they extend or deny public funding for the activities of religious groups in specific areas” (Rosenblum 2000a, 13; see 13–14). Some interpret public support as constituting a forbidden establishment of religion, or at least an endorsement of religious belief. Others, however, argue that conditions attached to this support threaten the free exercise of religion, also forbidden under the First Amendment. Implicit in this challenge, furthermore, is the assumption not only that government is responsible for ensuring religious freedom, but also that “government is responsible for insuring the conditions of religious flourishing” (14).

Rosenblum’s moral integralists, who want to reinvigorate faith to promote the public good, and civic integralists, who aim to reinforce democratic values by promoting greater pluralism, do not necessarily threaten the free exercise of others’ beliefs ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Chapter 1: Religion and Sexuality: Setting the Stage
• Chapter 2: The Impossibility of Neutrality
• Chapter 3: Same-Sex Marriage: Social Facts and Conflicting Views
• Chapter 4: Religious Establishment and the Endorsement Test
• Chapter 5: Free Exercise and the Right to Conscience
• Chapter 6: Establishment and Free Exercise: Who Should Be Outsiders?
• References
• Index