Debates Over Gay Marriage
Miss Basic Civil Rights Point
by The Reverend Dr. Philip de Rochambeau
© 1999, The Reverend Dr. Philip de Rochambeau
The recent appeal to California Mormons by their Church leaders to contribute monies to a political cause against same-sex marriages has again brought this divisive issue to the table. In a letter authorized by the highest leaders of the LDS Church, the California Area Presidency asked Church leaders to read a letter during church services asking all members to “do all you can by donating your means and time to assure a successful vote” in support of a California ballot proposition scheduled for the March 2000 elections.
This proposition would allow the state not to recognize same-sex marriages and thus work to prevent prevent future same-sex marriage initiatives from getting off the ground. The tremendous support for the initiative by the LDS Church — along with the California Conference of Catholic Bishops and the Assemblies of God area churches — is a grim reminder that many important issues do not neatly fit into a “church and state” separation.
Although the LDS Church sees this as a moral rather than political issue, the matter of the LDS Church using its considerable resources to influence decisions is an issue that merits separate examination, although — unlike the Christian Coalition — the Church never endorses specific candidates or political parties. Much more pertinent is the issue of whether or not marriage, including same-sex marriage, is still a matter for debate by churches or whether it belongs in the realm of the constitutional interpretations of the courts.
At one time, marriage was in the hands of churches, however, as churches ceased to control governments, marriage became one of the most important provinces of the state. It is no longer the local parishes that contain wedding certificates, but rather the county governments. No church has the legal authority to marry people in our society. That right exists solely with the state. Thus, while churches may facilitate at weddings, and religion may play an important role in that wedding, all of it is meaningless without the sanction of the state.
By allowing the state to control marriage (and divorce), the churches no longer have the authority to make decisions regarding basic marital rights such as insurance benefits, tax benefits, name changes, inheritances, property rights, etc. Although a majority of Americans (and many employers) believes that same-sex couples should not be discriminated against, the same majority does not exist for taking the final step of condoning same-sex marriages — and maybe never will. Nevertheless, public opinion should not be a factor in any matter of justice or injustice.
For almost 100 years after African-Americans won their freedom, they still were denied many rights — including the right to marry the person of their choosing. Miscegenation laws (laws against interracial marriage) existed in many states and offenders were still being prosecuted through the 1960s. In its landmark decision, the Supreme Court ruled miscegenation laws unconstitutional in 1967 in the case of Loving v. Virginia. Justice Earl Warren, writing for the majority, made frequent reference to the 14th Amendment and its guarantee that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness … ”
When interracial marriages finally become legal in 1968, a Gallup poll indicated that over 70 percent of Americans did not approve of interracial marriage. To this day, a significant number of people still disapprove of interracial marriage, but justice must not be based upon polls and public opinion — even if politics is. The true function of our democracy is not to impose the will of the majority, but rather to protect the rights of the minorities.
Unfortunately, feeling so threatened by such a radical change to present society, many people view same-sex marriage as granting a “special privilege” to homosexuals. The reality is quite the opposite: this debate is not about special rights for homosexuals, but rather about not taking away the basic constitutional rights all Americans should enjoy. The right to marry is a right granted by the state to all individuals — and it is the state that has determined the legalities concerning age of consent, incestuous marriages, and polygamy. (Utah history demonstrates vividly how impossible it is for a church to promote marriages that go against the laws of the state.)
The foundation for this point of view was solidified when the Supreme Court struck down Colorado’s Amendment No. 25, which sought to ban anti-discrimination laws against homosexuals. First quoting Justice John Marshall Harlan’s dissent in the 1896 case of Plessy v. Ferguson, Justice Anthony Kennedy wrote that the Constitution “neither knows nor tolerates classes among citizens.” Although a foreign concept a century ago, no one can deny that today’s gay and lesbian population make up a very large class — larger than either Mormons or Jews in this country. We all should remember that Nazi Germany very effectively removed marriage and other frights from Jews, homosexuals, and other classes.
Much more relevant to the present debate, however, the Supreme Court decision on the Colorado case (Romer v. Evans, May 1996) deals with the specific concerns of whether laws protecting homosexuals are giving them “special rights” or not. In the majority opinion, Justice Kennedy wrote, “To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.”
Let us not be confused. The debate over propositions such as the present California initiative and the congressional 1996 Defense of Marriage Act are not concerned with giving “special rights” to gays and lesbians. Rather, they specifically target gays and lesbians for special discrimination from the rights that virtually all other Americans enjoy. It is ironic that I, a minister who has the authority of the state to perform marriage ceremonies, do not have the right to have one of my own.
Article © 1999 by The Reverend Dr. Philip de Rochambeau.
Originally published in the Salt Lake Tribune, July 11, 1999.
Reprinted with permission.
Archbishop de Rochambeau is Presiding Bishop of the
worldwide Apostolic Church. Although a mainstream Church,
the Web site is gay-friendly and has many of the
Archbishop’s other writings on GLBT subjects.
He may be reached at: firstname.lastname@example.org