With the Supreme Court taking on two different same sex marriage cases, two seemingly related yet in this case opposing American concepts are clashing: The right to free association and individual liberty, and the right to practice one’s religion. The Supreme Court will take on the Federal Defense of Marriage Act (DOMA) and California’s Proposition 8, which bans same sex marriage in California. However, the clashing of sides wasn’t necessary.
First, I don’t see how the Defense of Marriage Act can possibly stand Constitutionally. The Constitution requires each state give “full faith and credit” to legal matters in other states. This means that a contract written in Pennsylvania still holds legal standing in Oregon; a legal decision in Colorado is still valid, with the scope of the parties involved, in Vermont. As a result, a marriage license issued in Maryland or Connecticut must then be considered valid by Georgia or Kansas. There’s no room in the Constitution to carve out an exception for marriage.
This brings up the second issue, can a state can ban same sex marriage? On the one hand, many see it as a state’s rights issue: Each state should decide for itself what the definition of marriage may be. On the other hand, there is the individual right to freely associate and enter into contracts or other binding legal arrangements. Marriage is not usually considered a contract, but it is a binding legal arrangement.
So, what’s the problem with same sex marriage? It doesn’t affect anyone else, right? Isn’t it just two people getting together for mutual love and support? Shouldn’t two people, in a free country, be allowed to do this regardless of their sexual orientation?
Well, yes and no. In civil society, marriage is traditionally defined as between a man and a woman. However, for Christians (and if my understanding is correct, for Jews and Muslims as well), marriage is an agreement between a man, a woman and God to create a family and raise children to the greater glory of God. Because homosexuality is a sin in the Judeo-Christian view, two gay people cannot be “married” before God for most denominations.
Many still don’t see a problem. After all, a same sex couple doesn’t have to get married inside a church. They can have a civil marriage performed by a civil servant appropriate to their state. There’s no religious violation here.
This is absolutely true, but there’s a further complication: “Civil Rights”. Since the 1960s, the Civil Rights Act and various court rulings have extended many affirmative rights against discrimination. Employers are not allowed to discriminate based on certain factors, including religion, gender and race. However, when applied to sexual orientation the civil right preventing discrimination flies in the face of the constitutional right of freedom of religion.
This is the crux of the legal fight over the Obamacare contraception/abortion coverage mandate. The Roman Catholic Church is fundamentally opposed to contraception, so they are fighting the mandate based upon their religious objection to any such product. Similarly, a Christian Church may oppose hiring an openly gay person, let alone offering medical coverage for a spouse of a same sex couple.
Again, many still don’t see a problem. Some discrimination is permitted under civil rights laws when such discrimination is necessary for the organization’s functional purposes. Churches don’t have to hire people who don’t hold the same views as they do because religious viewpoint is fundamental to its operation. So the Catholic Church doesn’t have to hire homosexuals, just as Hooters doesn’t have to hire male servers. What’s the issue?
The issue is the religious freedom of the individual. The First Amendment’s declaration that “Congress shall make no law… prohibiting the free practice [of religion]” wasn’t meant to simply allow different types of churches to exist. A church, like any organization of people, is a concept. From a secular standpoint, it doesn’t exist outside of our minds; when applied to busineses and non-profit groups we call this concept a “legal fiction”. That means that, while a church, small business or corporation might be recognized legally as an entity, it’s really just a way of dealing with all of the individuals who own, work or otherwise interact with that organization.
So what happens when an corporation such as Hobby Lobby or Chick-Fil-A hires a person with a same sex spouse? Both companies have the religious viewpoint of their founders and owners as core principles of the organization. Both promote a Christian viewpoint as part of the foundation of their business. Must these companies now provide benefits to same sex spouses? Must the civil protections offered based on race, gender and religion be further extended to sexual orientation?
I’m no expert, but some case law suggests yes, and that is one of the major objections to same sex marriage. Not only must the State recognize a same-sex couple, but now individuals and organizations must as well. So how do we reconcile the right of freedom of religion with the right of individuals to associate freely? How do we reconcile religious values with civil rights?
In many cases we can’t, and this is the fundamental flaw with civil rights. Some things seen as “civil rights”, such as a protection from discrimination, conflict directly with constitutional rights. How can a person who views homosexuality as fundamentally and irrevocably immoral be reconciled to extending some benefit to a same sex spouse? The two viewpoints simply cannot be resolved. Either the business owner must be allowed to engage in business in a manner consistent with their Constitutionally-protected religious beliefs, or the homosexual must be allowed to live thier life without discrimination from someone else’s religious view. The dichotomies are completely incompatible, and as a result one of them must lose.
This is precisely why those who founded this nation wanted limited government. The overreach of Obamcare directly puts these two groups in opposition. The institution of marriage being codified into law directly creates a conflict of the religious versus secular view of marriage. The creation of tax incentives for married couples institutionally pits different views of marriage against each other for financial reasons. These different views of marriage can never be reconciled. The Federal and State governments have so invaded our personal lives through all the various protections, redefinitions and mandates that one person’s rights cannot be protected without fundamentally violating another’s.
It seems to me almost a given that the Defense of Marriage Act will be found unconstitutional. While I cannot see a legitimate Federal Court decision against Prop 8, that doesn’t necessarily stop the court from deciding against it. In an ideal world where the scope of government is more limited, these decisions would be the end of the discussion. In reality, more court decisions will be required to deal with the fallout, one way or the other. The issue will drag on for many years, regardless of any rulings issued this summer.