Sunday, November 07, 2004

The "American religion" is what allows gay marriage bans

I've always said that there's no real non-religious argument against gay marriage, while there are obvious non-religious arguments against murder, and even abortion. I brought this up with some Republican relatives, and they said that a non-religious argument against gay marriage does exist...and then failed to provide anything too substantial.

Now, Amber writes: "Could one argue that same-sex marriage bans based on religious, traditional views of marriage (as opposed to some measurable social harm) might violate O'Connor's endorsement test and thus the First Amendment? Defining marriage to be only what conservative sects of some religions say it is seems to convey "a message that religion is 'favored,' 'preferred,' or 'promoted' over other beliefs." Allegheny County v. ACLU."

It's always nice when something I've always felt is clarified in legal jargon. This makes perfect sense: If gay marriage is only wrong on the basis of there being religious objections to it, then laws preventing gay marriage have to be unconstitutional.

The problem, though, is that gay marriage is not wrong according to a specific religion but according to the generic American Christianity, the one that puts "God" on our money and into every last political speech, by Democrats and Republicans alike. I'd love it if generic American Christianity (a dubious entity as a religion, but nevertheless a politically useful one when it comes to manipulating potential voters...) were treated as any other, more specific, more real religion and were kept separate from state, but America seems to have decided, across the political spectrum, that generic American Christianity is the state, and that separation of church and state refers only to keeping any one smaller religion from either being banned or gaining too much influence.

So banning gay marriage on the basis of generic American Christianity (as opposed to banning it on the basis of, say, Catholicism) may well be, or at least feel, unconstitutional, but it's absolutely consistent with the way things are done in this country, with the strange way in which separation of church and state has come to be interpreted.


Amber said...

Strictly speaking, O'Connor's test evaluates whether religion is endorsed, not a particular religion; endorsing religion over irreligion would violate the First Amendment.

Of course, this is directly at odds with the separate strand of case law permitting the forms of "ceremonial deism" that you note in your post. One could distinguish those as being some sort of historical recognition of our past, as opposed to laws that currently enforce the norms of religion (and only some religions at that) over secular norms of equality.

It's a mess, and not going to get less messy in any way that promotes separation of church and state in the future.

Phoebe said...

Agreed. It is definitely a mess.