Wednesday, January 4, 2017

Thoughts on the Marriage Debate

4 January 2017--I wrote this a while back, and decided not to post it at that time. I've made a few additions to my comments and corrected some typos, but I feel like now is the time to post.

As various jurisdictions go tripping over themselves to legalise same sex marriage [which is how I will refer to the subject from here on out; full disclosure: this was the topic of my first year law school moot, and as such, it is the terminology with which I am most comfortable], I find myself pondering the various attitudes towards the subject with the same trepidation I had in law school. I really don't like pussyfooting around such subjects and like to make my position as clear as possible. People can choose to be offended, or they can agree to disagree, which is the position I take. It is my hope that those of you who support same sex marriage will respect and appreciate my position, and those who do not may be enlightened somehow. In this post, I will outline what I consider to be the core issues, how they agree or disagree with human rights, and how I came to the conclusion I did, after careful consideration, soul-searching and yes, even prayer.

1. Marriage is a religious institution, co-opted by the state for its own ends.

No matter how much you want to argue this point, you will always be wrong. Marriage began as a religious institution, is still a religious institution, and always will be a religious institution. When marriage was adopted and regulated by the state, it was done for its own ends i.e. Taxation and regulation. By creating rules and regulations for marriage within a given state, that state could profit from its recognition within the state (marriage licences, fees for a justice of the peace to perform a wedding, taxation on the basis of marital status, etc.). Where the waters get somewhat muddied is in the realm of legal recognition of religions and their ministers to perform marriages recognised by the state. There are those among same sex marriage activists who would would have you believe that this would entitle them to be married by whatever religion they choose.  This is false, and leads to:

2. Where freedom of religion and freedom from discrimination on the basis of sexual orientation collide, freedom of religion must always protect the religious observers from doing anything against their beliefs. 

When we talk about constitutional rights, they fall into two categories: positive liberties and negative liberties. Freedom of religion is actually both: it is the freedom to worship according to your religion of choice and freedom from religious persecution. Sexual orientation falls more into the negative liberty category: freedom from discrimination. Where a conflict arises between the two, say a gay couple wants to get married by a Catholic priest or a Mormon bishop, freedom of religion trumps sexual orientation, since to perform a same sex marriage is against the beliefs of the minister in question.

It does not mean that the couple cannot get married; merely that the options are reduced. It is akin to a physician declining to perform abortions because it goes against his religious beliefs; there are still physicians ready, willing and able to do the procedure. Another example that works is that of purchasing a car: if a certain feature is not available from a given manufacturer, much as the purchaser would prefer to buy that particular brand, the option remains to buy from another manufacturer. The actual ceremony is a service, and since that service can be provided by the government, or by a religion that supports same sex marriage, to force a religion that does not to perform the ceremony is compulsion, which deprives others of their rights. As to whether such compulsion could happen, there is currently a case making its way through the British courts where a gay couple is seeking to have their marriage performed in the Church of England. If they succeed, it will be a sad day indeed.

I know some will raise the "right to refuse service" laws that cropped up in Kansas and Arizona recently, but those laws were an abuse of process and the Arizona one was rightly vetoed. While I imagine other Bible Belt states will continue to champion such laws notwithstanding, I do not support such legislation.

3. Not supporting same sex marriage does not equal homophobia. 

"If you're not with us, you're against us." Funnily enough, those words come from a musical that was preaching tolerance: Beauty and the Beast. The context, of course, is that Gaston and the mob are planning to lay siege to the Beast's castle and kill him, because, "We don't like what we don't understand, in fact it scares us, and this monster is mysterious at least." Words written by an openly gay man (Howard Ashman) using the Beast's plight as a metaphor for homosexuality. Yet, the mob mentality appears to have overtaken all intelligent debate on the issue. Not supporting same sex marriage because it goes against your religious beliefs is not homophobia. Opposition arises out of two particular schools of thought. The first was described above: no person should be compelled to perform a same sex marriage ceremony if it conflicts with his religious beliefs. The second opposition weirdly mirrors the attitude espoused by same sex marriage activists that if one person says no to us, the floodgates will open and none of us will be able to get married. It is that if same sex marriage becomes legal, other forms of marriage can't be too far behind (polygamy, etc.). We would all like to believe that cooler heads will prevail, but we can't be sure. That goes for both groups.  We need to cool the hyperbolic rhetoric here. 

For the record, I have known and do know many gay and lesbian people. They come from all walks of life, just like straight people. It is my hope that they understand that "If you're not with us, you're against us" is as stupid as it sounds. 

4. Persecution and/or bullying is never OK. 

This should be obvious, but it seems that members of both sides of the issue seem to think that whoever yells loud enough, throws their weight around and belittles the other will win the debate. I was tremendously impressed when George Takei, a gay rights and same sex marriage supporter, took the high road when noted anti-gay activist Fred Phelps passed away. Many activists were calling for pickets of his funeral, screaming things like "BURN IN HELL!" which would be the sort of thing Phelps commonly practiced in his life. By not giving in to those base, knee-jerk sentiments, Takei has earned my respect. We could all learn a lot from his handling of the situation. 

Bullying doesn't end when school does; it just changes formats. Those who are wise enough to realise this are ahead of the game. Those of us who choose to continue such behaviour are deserving of any scorn we receive as a result, but that is not a licence for the bullied to engage in such scorn. By "stooping to [their] level," the discourse is reduced to something like what we saw in the US Presidential Election of 2016; vicious, divisive and uncivilised.

5.  How about trying to be true Christians (or whatever belief you espouse)?

It's not rocket science, folks. Just because you disagree on an issue does not mean you cannot love your fellow humans. There's a lot to be said for civility and respect, but loving takes more. It takes not only looking beyond differences, but appreciating differences and what others bring to the world. It does not mean agreement; if it did, couples and family members would never fight, but if we can try to see things from another perspective, we come out the other end better for it.