Our readers are no doubt aware of the pending Supreme Court case regarding same-sex marriage. Because of the timeliness and significance of the issue, we will be publishing a series of daily posts this week only, from Scott Allen, the president of Disciple Nations Alliance.
In Part 4 of his series, “Can Gays and Christians Co-Exist in America,” Dan McLaughlin shows how the legal arguments over same-sex marriage require the law to devalue marriage, ignore reality, and insult Christians and other religious believers.
He begins by looking at how proponents of same sex marriage have opted to bypass the political process and use the courts to advance their agenda.
The decision to seek a decisive nationwide resolution in the courts on equality-based grounds has encouraged the most divisive possible method of implementing same-sex marriage, doing so not by demonstrating the benefits … but by 1) delegitimizing all the aspects of marriage that are seen as obstacles to equalizing same-sex marriage with opposite-sex marriage and 2) demonizing anyone who opposes this process as the equivalent of Bull Connor …
But even if we assume for the sake of argument that the Equal Protection Clause [of the U.S. Constitution] means, not what [its authors] put in the Constitution but rather what modern judicial gloss has revised it to mean, the Constitution has always been read to permit the government to treat different things differently, so long as there was some rational basis for the distinction in the first place.
… there very obviously are real differences between opposite-sex and same-sex marriage, and the courts therefore can [rule the constitution requires same-sex marriage] only by declaring that all such distinctions are inadmissible in a judicial proceeding … Undoubtedly, the courts have the raw power to do this, but it is a thin reed on which to hang the moral legitimacy of such a sea change in American law and culture
… why is marriage the government’s business at all? Because marriage is an expression of love? You have never needed a government license to love someone, and let us all pray we never will.
Any way you slice it, the vast apparatus of marriage law and family law makes sense as a public enterprise of concern to the government and the law only if you consider the role of marriage as an institution for having and raising children … you simply cannot make same-sex marriage and traditional opposite-sex marriage the same thing once you admit that children … are the primary public purpose of the institution.
There are four basic reasons … why it is completely rational to consider opposite-sex couples different from same-sex couples for purposes of the public aspects of marriage.
First, opposite-sex married couples, for obvious biological reasons, are vastly more likely to have children …
Second, the state has a much greater interest in encouraging marriage among opposite-sex than same-sex couples because opposite-sex couples are … apt to have children outside marriage, at rates that have reached crisis levels for our society in recent decades. The state has nothing resembling a similarly urgent interest in whether same-sex couples get or stay married or not … there is an enormous public interest in encouraging and maintaining opposite-sex marriage, and no comparable interest exists encouraging same-sex marriage.
Third, there is nothing irrational about the state treating both mothers and fathers as having something of value to add to a child’s life, and therefore maintaining that it is preferable for children … to be raised in a home with both a mother and a father … We … have an enormous bulk of social-science data … on the specific problems that fatherless or motherless children face.
Fourth, it is … an open question—given the fragmentary and often unfavorable data we have from countries and states with a decade or two of experience with legally sanctioned same-sex unions—whether same-sex unions as a group can or will sustain rates of family stability or monogamy that are at all comparable to those traditionally observed … in opposite-sex marriages.
Reliance on the Equal Protection rationale also has a number of potential legal consequences, including some fairly immediate and specific risks for church and church-affiliated institutions … [which] could lose their tax exemption … if they treat same-sex marriage as different from opposite-sex marriage … Is this a fanciful possibility? None other than the Obama administration’s chief lawyer admitted to the Supreme Court in the same-sex marriage argument that ‘it’s certainly going to be an issue. I don’t deny that.’ Anyone remotely familiar with the Civil Rights Division of the Department of Justice should regard that as a not-even-barely-concealed threat. Indeed, stripping churches and religiously-affiliated schools, hospitals and charities of tax benefits and participation in public programs is already a popular cause among Progressive activists, and will doubtless be seized upon as a further reason to use administrative agencies and courts to impose legal mandates.
The Equal Protection argument is not about whether the case for same-sex marriage is better policy than the case against it; the argument in court is that there can never be any rational basis at all to oppose same-sex marriage. Thus, the courts … rule in favor of same-sex marriage only by issuing public declarations that the law considers everyone opposed to same-sex marriage to be an irrational bigot driven by an insensible animus … This is a scorched-earth strategy of total delegitimization. It is emblemized by the promiscuous deployment of the term ‘homophobic,’ which literally seeks to diagnose anyone disagreeing with this legal and policy agenda, or holding scripturally-based religious views, as suffering from a mental illness.
[Imagine what would happen ] if Christians started insisting on giving their sons bar mitzvahs, but substituting Christian readings and professions of Christian faith, while insisting on retaining the term bar mitzvah and then deploying the machinery of the law to target anyone who took issue with this? I have to believe that many Jews, for perfectly valid reasons, would at a minimum regard this not only as an appropriation of their cultural heritage, but as something of a crude parody of it, would want nothing to do with it, and would be appalled at being hauled into court for refusing to participate in one. So it is, for many Christians, when the name and status of a ceremony that is sacred and sacramental in our own church and central to the practice of our own lives is appropriated to have a completely different meaning—then told that law and society disapproves of us even mentioning the distinction.
… when the law declares that two things are the same when they are not, and commands us to affirm and help celebrate a thing that is not so, its logic will inevitably compel us to conform our actions to that fiction … This puts Christians to the test of their duty to avoid scandal. And when the law derides any request for respect for individual conscience as an invidious form of irrational bigotry, as many judicial opinions have done and as critics of religious-liberty bills have done, the stage is set for an existential struggle.
– Scott Allen