Is gay marriage debate a church-state issue?

Christian Century, Sept 6, 2003 by Robert Marus

Socially conservative politicians have at times employed religious terms and rationale in urging government protection of heterosexual-only marriages. Could that strategy, if used to prohibit same-sex marriage, make the raging issue a church-state issue?

Recent court developments in the U.S. and Canada, as well as affirmation of an openly gay bishop and same-gender rites in the Episcopal Church, have made the prospect of gay marriages seem possible in the not-too distant future. In response, new laws have been urged--even a constitutional amendment--that would ban extending marriage benefits to homosexual couples.

President Bush and others who have proposed such laws have cast them in spiritual categories. Bush recently referred to the "sanctity' of marriage." Republican Senate Majority Leader Bill Frist of Tennessee described marriage as a "sacrament." White House Press Secretary Scott McClellan called it a "sacred institution." A recent Vatican pronouncement instructs Catholic politicians that voting for same-sex laws would be "gravely immoral."

However, under a Constitution that bans government establishment of religion and requires laws to have a secular purpose, some supporters of strict church-state separation say there is little reason for the government to give legal recognition to heterosexual marriage but not to homosexual unions.

Because of church-state separation, wrote Los Angeles Times columnist Robert Scheer, "marriage is a civic institution not in any way requiring the participation of religious organizations. Government policies favor the family unit. If the state is offering special rights and benefits for those couples who marry, then to exclude gays is simply unconstitutional."

Echoing Scheer was Dierdre Bourdet of the National Center for Lesbian Rights in San Francisco. In an August 5 San Francisco Chronicle column, she wrote: "Our government's role is to guarantee the freedom and equality of every citizen under the law.... A church's teachings regarding the definition and "sanctity" of marriage have no place in federal law."

And Senator John Kerry (D., Mass.), a presidential hopeful and a Catholic, lambasted the Vatican on church-state grounds for its pronouncement about Catholic politicians and gay marriage. "It is important not to have the church instructing politicians. That is an inappropriate crossing of the line in this country," Kerry said August 1. "Our founding fathers separated church and state in America. It is an important separation," he added. "It is part of what makes America different and special, and we need to honor that as we go forward."

Kerry has said he opposes legalizing gay marriage but supports the legalization of same-sex "civil unions," which would accord many of the same legal benefits as marriage.

According to some legal experts on the issue, the question is more complicated than a simple establishment-of-religion issue. Politicians who have proposed laws banning same-sex marriage "have offered reasons that are not totally religious for this, so whether that is enough to invalidate a gay marriage ban is not clear," said Elliot Mincberg, chief legal counsel for People for the American Way. Mincberg's organization supports legalization of gay marriage.

Pamela Karlan, Stanford University Law School professor and First Amendment expert, agreed. "Of course, you could have a secular interest that is based on moral judgments--for instance, laws against cruelty to animals," she said in an interview. "So it's not that all moral judgments are inherently religious."

Peter Sprigg of the conservative Family Research Council said there are plenty of nonreligious reasons to oppose gay marriage in civil society. "I don't think there's any establishment-clause violation in limiting the definition of marriage to a man and a woman," said Sprigg, director of the Center for Marridge and Family Studies at the Washington-based FRC. "I think defining marriage as between a man and a woman is not a religious perspective, but rather an anthropological one."

Sprigg said that legally privileging heterosexual marriage over homosexual unions is no more of a First Amendment problem than banning bigamy. "If anything, imposing monogamy would be more likely to be considered a religious viewpoint, because there are other cultural and religious precedents for polygamy," he said. "But there is no religion or culture that has ever treated same-sex relationships [as equal with heterosexual relationships]." Sprigg noted that heterosexual marriage offers society natural benefits that same-sex unions naturally do not, such as children. He also said society has a legitimate public-health interest in opposing homosexuality.

If presented with the question in the future, however, U.S. Supreme Court justices may view Sprigg's arguments as incomplete. In its June decision in Lawrence and Garner v. Texas, a majority on the court overturned state bans of private, consensual same-sex acts. In doing so, justices rejected Texas's argument that the state has a compelling interest to promote public morality by banning gay sex, as well as a state attorney's argument that homosexual practice is inherently detrimental to public health.