“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.”
That’s the historic sentence with which Federal District Court Judge Vaughn Walker struck down California’s Proposition 8, which restricts legal marriage to a union between a man and a woman.
It is impossible to know at this stage whether Walker’s memorable phrase will ultimately become a legal precedent, because the judge stayed his own ruling in anticipation of an immediate appeal, and the case is likely headed for the Supreme Court. If the case does reach the high court as presently constituted, I wouldn’t bet on this decision being upheld. The profound religious conservatism of Robscalitomas (my acronym for Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito, and Clarence Thomas) probably means four automatic votes against gay marriage as a right guaranteed by the equal protection clause of the Fourteenth Amendment. And unless Elena Kagan or Sonia Sotomayor can work the same magic on Anthony Kennedy that Sandra Day O’Connor once did, it’s certainly even money that Kennedy will take the side of social conservatism and the Catholic Church hierarchy.
Be that as it may, the decision in California casts on unusual light on the fact that conservative religion–based on a literal interpretation of Genesis and Leviticus–is and always has been the main source of opposition to gay rights. What the judge is saying, of course, is that disdain based on religious faith–even if ratified by majority vote–cannot jettison the constitutional rights of any group. This is what the Bill of Rights and the Fourteenth Amendment are all about.
Many adversaries of gay rights make strenuous efforts to cast their views in more rational, nonreligious terms. Gays, they insist, are always more promiscuous than straights, so they’ll be more likely to divorce if they’re allowed to marry. (This one actually ought to make opponents of gay marriage happy.) Children exposed to a “gay lifestyle” are more likely to have problems in school and their community–a statement that is certainly true, because the trouble will come from people who think Leviticus is an appropriate manual for modern life.
The distinctive and admirable component of this decision is that it zeroes in on religious motives for discrimination and doesn’t rely mainly on dubious sociological evidence. The so-called “studies” of right-wing Christian groups, relying entirely on anecdotal accounts of those who oppose gay rights, are worthless scientifically. And to be honest, I don’t think that more objective studies have much to tell us at this point about the social impact of gay marriage, because gay marriage is so new and offers such a small sample that we really don’t know whether such unions will be more or less stable than heteroxexual unions or whether children will turn out more or less happy. And guess what? It doesn’t matter.
The freedoms to marry or not, to have children or not, are among those basic rights that have nothing to do with sociological evidence, biased or unbiased, about possible outcomes. We already know, for example–one of the few things we do know about marriage–that teenage couples have the poorest possible outlook for a stable union.
Marry and have a child before age 20, and let’s just say it’s harder for a camel to go through the eye of a needle than for teen parents to make it as a couple. But who would pass a law saying that, because sociological studies show the outlook is poor, two 18-year-olds should be prohibited from marrying? The right to marry is protected by the Fourteenth Amendment, period. The fact that I wouldn’t like it if my 18-year-old daughter got married doesn’t mean that my personal opinion ought to be written into law. The same is true for religious fundamentalists who are repelled by the idea of same-sex marriage.
The most relevant precedent, of course, is the Supreme Court’s unanimous 1967 decision, Loving v. Virginia, overturning state bans on interracial marriage. In his opinion, Chief Justice Earl Warren noted that the Virginia trial judge–who suspended the Lovings’ 25-year sentence on condition that they leave the State of Virginia–intoned that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangments there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” (But wasn’t it God who allowed men to build boats so that they could travel from one continent to another, and capture and transport slaves, thereby making intermarracial sex available?) This entire opinion, because it captures the idiocy of the thinking behind bans on racial intermariage long taken for granted, bears rereading today. And I am not at all sure that, if a secret ballot had been taken in 1967, Americans would have agreed that interracial marriage ought to be legal.
In the gay marriage case, George Chauncey, professor of history and American studies at Yale University, referred to the right-wing religious arguments frequently used in the 1950s and 1960s not only against interracial marriages but against all racial integration. He noted that the arguments were the direct predecessors of those “mobilized in the Proposition 8 campaign and many of the campaigns since Anita Bryant’s ‘Save Our Children’ campaign, which argue that homosexuality itself or gay people or the recognition of their equality is against God’s will.”
Religious beliefs, except among Biblical literalists, are far from static on this issue. The changing religious landscape on gay rights issues can be seen in a 2008 poll by the Pew Forum, “Religion Among the Millennials.” In the section on social and culture war issues, the gap between those over and under 30 is apparent in nearly all religious groups–with the important exception of white evangelicals. White evangelicals are the only–I repeat, only–religious group in which a majority of those under 30 answered “no” to the question, “Should homosexuality be accepted by society?” Among African-Americans–the most religious group within the American population–51 percent under 30 said homosexuality should be accepted by society–compared with jut 36 percent over 30. The religiously unaffiliated, Catholics, and mainline Protestants are the three groups in which a majority of those over 30 and under 30 believe homosexuality should be accepted.
I was surprised that lay Catholics are just about as likely to favor social acceptance of homosexuality as mainline Protestants. In fact, Catholics under 30 are even more supportive of homosexual acceptance than mainline Protestants under 30. These figures show a huge disparity between the thinking of lay Catholics and the Catholic bishops, who, while they can’t convince their own members, can spend a huge amount of money joining right-wing Protestants in passing measures such as Proposition 8.
I was also surprised at the generation gap between African-American churchgoers. As an aside, those who claimed that African-Americans were responsible for the passage of Proposition 8 are wrong. Because the sheer number of white right-wing evangelicals is so much greater than the total of black fundamentalists, Proposition 8 would have been passed had there been no black voters at all in California.
Because of the very large number of white fundamentalists–and the fact that an overwhelming majority of those under 30 agree with their elders on this issue–I do not share the views of those who believe that opposition to gay equality will go away as older, more conservative voters die off. Moreover, the financial ability of rich religious institutions to fight gay rights at the ballot box if they choose to do so is unrelated, as the difference between Catholic bishops and the Catholic laity demonstrates, to the beliefs of their church members. California voters may have passed Proposition 8, but the Mormon Church and the Catholic Church, along with well-financed Protestant Christian Right organizations, paid the bill for the anti-gay marriage campaign at the political level.
My guess is that they will continue to do so unless the Supreme Court uphold’s Judge Wright’s decision.
Note: I’m fascinated by the back-and-forthing about whether or not I am Jewish. Not since I spoke at a Hadassah luncheon, and the women gasped with pity when I said I was an atheist, have I experienced such concern about where I stand under Jewish law. First, of course, I am an atheist. This means that I do not believe in Judaism as a religion any more than I believe in Christianity or Islam. But Judaism as a religion and Jews as a people are not the same thing (yes, yes, I know that a lot of rabbis, including those who helped craft the Israeli Law of Return, would disagree).
Nazi Germany, with its ideology separating “Aryan” from “non-Aryan” races, started out making a distinction between half-Jews and “whole” Jews, but in the end it didn’t matter. People with only one Jewish grandparent or parent were eventually sent to the ovens. That I have one parent who was a Catholic of German-Irish origins, and one parent who was a nonobservant Jew of German origins, is a fact of my history. but I am not about to use Nazi criteria for defining who I am.
I’m reminded of a line in a novel by Faye Kellerman, whose detective series is based on an improbable union between an ultra-Orthodox Jewish woman and a detective who was given up for adoption by a Jewish mother and was then raised as a Baptist. The detective tells the rabbi who eventually marries them, “It takes more than an accident of birth to make a Torah Jew.” So it does. I could never be a Torah Jew any more than I could be a believing Catholic–and that would be just as true if my mother, instead of my father, had been Jewish. But my father’s long denial of his Jewishness–also a sad fact of Jewish history in many European countries–had its effect on me, in that I still feel a deep sadness that he could not acknowledge his own history. That history is part of my own history and is probably one of the reasons why I feel more Jewish, in a cultural sense, than anything else. But this has nothing to do with rabbinical law or religious belief.
And by the way, passage of Judaism through the mother in rabbinical law is naturally based on the fact that before DNA testing (ie., most of human history), you could never be 100 percent sure of who the father was. This conversion of pre-science tradition into religious law is just one reason why Judaism is no more rational than any other religion. So cut it out, you well-meaning yentas. Oh yes. I am definitely the product of that most sacred of institutions, a marriage between one man and one woman.