The Progressive Catholic Voice endorses Senate and House bills providing for same-gender civil marriage and urges their passage in the current legislative session. We are all for love, but we base our reasoning in support of legal recognition of same-sex marriage on the U.S. constitutional principles of freedom and equality. We urge Minnesota Senators and Representatives to honor their obligation to uphold equal protection of the law for all citizens even if their constituents are not making principled judgments in the matter. It is a hard demand of conscience, especially if the legislators fear they may lose the next election. On constitutional principles they must show their constituents the way of fairness. The ethics of citizenship and leadership in a constitutional democratic republic is not for the faint of heart.
How it works: Freedom should be restricted by law only when there are good reasons, reasons that can be generally accepted by all citizens. There are no good reasons to restrict the freedom of same-gender couples from forming sexual partnerships, living together in households, raising the biological children of each of the partners, or adopting children to be raised in the family. In Minnesota there are no laws preventing same-gender couples from making these life arrangements. According to the 2010 census, 1.76% to 4.01% of the households headed by couples in Minnesota are families headed by same-gender couples. So the legislators are obliged to see that the laws of Minnesota include them.
Minnesota laws governing marriage provide for obligations, rights, and benefits to stabilize family relations and, thereby, to stabilize the society as a whole. The principle of equality embodied in the 14th Amendment of the federal and state constitutions guarantees equal protection of the law. The civil laws of marriage protecting families headed by heterosexual couples should also protect families headed by homosexual couples unless there are good reasons, generally accepted by all citizens, to deny equal protection.
Do the teachings of a particular religion count as good reasons? There are numerous religions practiced by citizens of Minnesota. Some of these faith communities believe that homosexual sex is forbidden in their scriptures or their traditions; some believe that homosexual sex is natural and good and subject to the same moral considerations as heterosexual sex. In a religiously and culturally pluralistic society like ours, civil law-makers should avoid using the beliefs of one ethical group or even a majority ethical group to make laws for all citizens of differing beliefs. Law loses legitimacy if it cannot be bought into by a general consensus of the people.
We are grateful that we live in a state in which citizens who believe differently and conduct their lives according to different ethical codes can nevertheless live peacefully under a common set of laws that apply equally and reasonably to all. No one is obliged to marry a person of the same sex. But everyone is obliged to tolerate peacefully the life choices allowed by law to another.
Pragmatic reasons that affect the well-being of other citizens and the society as a whole are generally accepted by all citizens. The backers of Proposition 8 in California, opposing same-sex marriage, had an opportunity to be heard in the federal court, to bring all their good reasons why same-sex marriage will be detrimental to society, and the federal court held that they brought no evidence of any detriment.
When different groups of people are treated differently under the law, courts look to see if the groups are “similarly situated.” If they are, the law should be applied equally to them. If they are not similarly situated with regard to a particular law, there are sometimes good reasons to treat them differently. Are heterosexual couples and same-sex couples similarly situated in families to be stabilized by civil marriage laws? Several courts have held that they are, but this question has not been determined as yet by the U.S. Supreme Court.
Opponents of same-sex marriage in Minnesota point to damage to children as a reason all people should accept for not allowing same-sex marriage. “All children need a mother and a father.” The argument is that since two women or two men are not ideal parents for children, marriage laws benefiting same-sex couples will encourage more same-sex couples to beget or adopt children to the future children’s detriment. This is a strange argument. There are no tests for the ideal man and woman for parenthood currently in civil laws of marriage for heterosexual couples, so there are no guarantees that children end up in ideal one man/one woman households. If the state’s interest is in preventing births to non-ideal parents, many more classes of people would have to be excluded from the right to marry. Existing children within families headed by same-gender couples will not be saved by disallowing marriage to their parents, and they will be benefited by allowing it. Is the marriage law to benefit hypothetical children to be raised in ideal one man/one woman households in the future or is it applicable to existing families here and now?
We think that legislators should take their oath to uphold the constitution very seriously to provide equal protection of the laws. And as Catholics we should encourage them to do so, since we have benefited from equal protection of the laws ourselves. The Protestant majority could have outlawed us on any number of fronts over the years if they had not had the restraint that respect for freedom and equality requires, and we don’t know if another faith group with different ethical codes from ours will be a majority in the future. Religious liberty works two ways.
If you want to read a clearly reasoned equal protection analysis, the unanimous opinion of the Iowa Supreme Court in 2009, Varnum v. Brien is for you. To read it, click here.
Related Off-site Links:
At the Minnesota State Capitol, Two Big Steps Forward for Marriage Equality – Michael Bayly (The Wild Reed, March 12, 2013).
"It'll Be Legal August 1st" – Michael Bayly (The Wild Reed, February 18, 2013).