Gay Marriage Considered Under the Equal Protection Clause

Perhaps it would be good, from time to time, to drop the grandiloquence and the witty turn of phrase and do more close-in legal analysis of some things which are in the public realm of discussion these days.  Such as, gay rights & gay marriage, two issues given higher visibility by the nomination of Rick Warren as the Communicator with our Invisible Friend as the religious start of a secular proceeding next month.  (First question: why are we praying at a state function?  It's unConstitutional in the extreme.)

I am taken to task from time to time for not observing the distinction which the Christian Evangelicals, as exemplified by Rick Warren and his Orange County cult, maintain between "tolerance" for homosexual activity and "endorsement" of such activity.  Herein, I am told, lies my failure to comprehend.  Evangelicals have "compassion" for gays; it's just that their belief system does not allow them to go so far as to "sanction" or "legitimize" such unholy practices as marriage between two persons of the same sex.  If I could understand this, you see, I would see The Light.

One wonders, of course, if the confidence of Evangelicals is this serene and untroubled, why Rick Warren told his Webmeister to take down the "No Gays Allowed" part of his website (saddlebackfamily.com) a few days ago.  It seems so...what's the phrase?  PR driven.  It's almost as if some deal got worked out by the Obama Transition Team and the madhouse in the OC.  (I was honestly trying to keep this post high minded, but it's just too much fun to write like this.  Sorry.)  Wouldn't you love to have a transcript of that telephone call?  "Hey Rick," Rahm says, "we don't mind you busting gays there in wherever the hell you are, but you gotta pull that 'Keep Out' sign from the website, capisc? We're taking some real heat from our side."  Rick:  "No problem. It's not like I believe any of this shit anyway.  It's just red meat for the Wal-Mart sales staff in the pews."  

Still...and along more serious lines.  The fundamental error in the specious distinction offered by the Evangelicals, which they use as a means of avoiding a charge of bigotry, is based on two false premises: First, civil rights in this country are not determined according to a religious standard.  And second, civil rights are not a matter of majoritarian "tolerance;" it is not the province of Evangelicals, or any other pressure group, to determine who gets to enjoy their fundamental human liberties.

The first error is based upon a confusion, in the case of gay marriage, between religious and secular institutions.  The state-sanctioned union of two people in marriage carries with it a great number of practical ramifications and exists as a legal arrangement. While the state permits marriage ceremonies to be performed by religious officials, marriage licenses are issued by the state.  You can get married with a marriage license in a ceremony performed by a judge, for example.  But the Catholic Church does not issue marriage licenses binding on the state.

Gay marriage offends the religious ideas of the Evangelical right wing because they perceive of marriage as a holy arrangement ordained by God.  That's fine if they want to believe that.  Such an attitude is not binding on the State.  The inability of the Evangelicals to see this easy and fundamental distinction lies at the root of their difficulty in being fair.  An analogy might make the point clearer.  If Evangelicals believed that the black man was a racial inferior who should be denied public office (as the Mormons, world leaders in this new intolerance, once did), that would not make the case for such discrimination.  The Equal Protection Clause would strike down the discrimination anyway, and the First Amendment's Establishment Clause would be cited in support of the ruling.

It is simply because "marriage" and "family" have acquired such a totemic, proprietary status among Evangelicals that they feel they have the right to enforce their bigotry in this area of civil rights. The "institution" of marriage will be threatened if gays are allowed to marry, they say.  No it won't.  The institution will be enhanced and made more generally available.  Pastor Rick's fear that gay marriage will lead to polygamy, pedophilia and incest, as he expressed in an interview on national TV, demonstrates only one thing: he's a really dumb guy, which is another reason I'm scratching my head over this Obama sell-out.  (Pastor Rick also expressed his desire to sleep with all the beautiful women he sees.  Oh man, there is going to be such a scandal someday down in Saddleback.  Obama is so going to regret this choice.)

The second point is that we don't subject fundamental civil liberties to popular vote.  We protect fundamental rights from "the tyranny of the majority," in de Tocqueville's wonderful phrase.  One day (ironically, after Obama replaces the Medieval thinker Antonin Scalia with a secular judge) the Supreme Court will rule, under the Equal Protection Clause, that gays, possessing an unalterable natural trait, sexual orientation, are denied equal protection on the basis of that innate characteristic by preventing them from marrying in the one, honest way they can.  This ruling will be, first, a victory of science over religious obscurantism and its sin-obsessed views of homosexuality, and second, a triumph of compassion and justice over bigotry.

As a civil libertarian and a believer in freedom of religion, I will, of course, go on arguing for the fundamental right of Evangelicals, Mormons, Catholics and others afraid of science and progress to be safe and secure in their discrimination and hatred, as long as it doesn't spill over into their old practices of violating secular laws, such as burning people at the stake.  Also, I would encourage them to read the New Testament a little more closely, since it doesn't really have a bad word to say about consensual homosexuality.  It was concerned with pederasty, a form of sexual assault upon adolescent prostitutes and slaves which was as much a problem among heterosexuals as the "gays" of Biblical times.  This is the sort of distinction which Pastor Rick, of course, is not likely ever to grok.  Jesus himself was a very tolerant guy; I'm pretty certain I know how he would have voted on Proposition 8.