The case against same-sex marriage

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1559 edition of the Book of Common Prayer

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1559 edition of the Book of Common Prayer

1559 edition of the Book of Common Prayer

1559 edition of the Book of Common Prayer

The classic rationale for marriage in the Anglo-American tradition can be found in the vow prescribed by the 1559 Book of Common Prayer, which gives three “causes for the which matrimony was ordeined” by God; to wit: the procreation and nurture of children; a remedy against the sin of fornication; and “for the mutual societie, helpe, and comfort, that the one ought to have of the other, bothe in prosperity and adversitye.” Arguing in favor of allowing states to limit marriage to one man and one woman before the Supreme Court yesterday, Michigan solicitor general John Bursch put all his eggs in basket one.

In order to keep the Court from declaring marriage a constitutional right for same-sex couples, Bursch claimed that all he needed to show was that his state has a “rational basis” for its one-man-one-woman restriction, which is to encourage the linkage between parents and their biological children. Because “when you change the definition of marriage to delinkthe idea that we’re binding children with their biological mom and dad, that has consequences.”

Rational basis” is a low bar to get over, and it’s pretty clear that Bursch’s pitch will be sufficient for three or four of the justices. Nevertheless, it does require demonstrating that there’s nothing arbitrary about thus privileging one-man-one-woman marriage. That takes some doing.

For example, one might ask why, if Michigan is interested in having children grow up in a family with both biological parents, it makes it so easy for married couples with biological children to get divorced. And why not encourage marriages of any kind so long as there’s one biological parent? And then there’s the linkage between children and their adoptive parents. Shouldn’t that be encouraged? Anywhere you turn in the “best interests of the child” direction, there are benefits of same-sex marriage staring you in the face.

Moreover, given that children are the focus of the state’s marital concern, Justice Kagan asked Bursch, would it be constitutional for the state to ask a couple of any kind whether they intend to have any. “I think it would be an unconstitutional invasion of privacy to ask the question,” he replied. The point of his argument was not that the state make procreation and children-rearing a criterion for the marital state, but that it’s consequential to hold out the image of marriage as a procreative, child-nurturing institution as a Platonic ideal.

Speaking for the other side, Portland, Me. attorney Mary Bonauto called this argument “beyond attenuated.” It also, she said, embodied “an impoverished view of what is marriage.” Certainly it embodied a limited view of the state’s interest in marriage. As Bursch put it, “[T]he State doesn’t have an interest in love and emotion at all.”

Personally, I’m inclined to disagree. When it comes to the health of society, love and emotion, otherwise known as “mutual societie, helpe, and comfort…both in prosperity and adversitye,” have consequences. The state has an interest in those consequences. To think otherwise would be irrational.

  • samuel Johnston

    Hi Mark,
    To me, the winning argument is to avoid judicial fiat of such a broad new policy. Let the legislative process accomplish the change. The history of Roe v. Wade shows the likely path of a similar ruling by the Judiciary. When no consensus has emerged, the Court should tread very carefully. Brown v. Board of Education was an extraordinary situation, and even so, its implementation was hardly smooth or expeditious.

  • Chaplain Martin

    Mark,
    It is interesting to note that in recent blogs from the Baptist Joint Committee for Religious Liberty confirm that this is not a religious freedom issue.
    I quote: “The Baptist Joint Committee is dedicated solely to the issue of religious liberty and the separation of church and state. Accordingly, they do not take a position on other issues like the legal status of same-sex marriage.” Attorney for the committee, Hollyn Hollman on April 27,2015 wrote: “Obergefell v. Hodges, the same-sex marriage case being argued before the U.S. Supreme Court this week, is not a First Amendment case. Its potential impact, however, has increased conversations about religious liberty…”

    Clergy cannot be legally made to perform marriages nor churches to hold same sex marriages. Some Clergy have decided they will no longer be an agent for the state in signing state marriage licenses.

  • James Carr

    The States should have no jurisdiction over love and emotion, for they are intangibles. It does have the duty now to specifically define what marriage is, even though its definition has been understood since Creation as male/female unions.
    Clarification is necessary because an objection has arisen to the status quo…..now some people wish to include homosexual marriages as equal to the norm.
    The matter of children, divorce, unwed mothers, adultery, etc. are unnecessary distractions in the argument for or against gay marriage. We need to define the word “marriage” concretely and leave no room for personal interpretation. Feelings are nor relevant to what something IS.

  • samuel Johnston

    James,
    Your reasoning is flawed.
    Mariage is legal/social condition-period. Several countries do not recognize religious ceremonies as having any legal status. The state requires a civil “ceremony”. Mexico is an example close at hand. Some states in the U.S. recognize Common Law marriages (AL)- others (CA) do not. If the body politic decides to redefine marriage, it will not be the first time.

  • MarkE

    Understood since the Creation – would that include the one man-multiple wives marriages as well (see Jacob, David, Solomon..)? How about those who had wives and concubines (see Abraham, Jacob, etc)? Arranged marriages are ok? Marriages where the contract or pact is made for the sake of territory or cessation of war or to gain political power through the linking of two families? These are all ok to you? How about arranging to have your early teen daughters married to thirty-year-old men? All of these have been variations on marriage “since the Creation.” Ready to allow them too?

  • MarkE

    Mark – I think that Mr. Bursch tried his best to present a deeply flawed argument. There is really nothing that could be reasonable or legally acceptable about this – it is solely a sectarian religious argument. Using religious reasons to discriminate, to restrict the rights of others, is and always has been wrong. And it will inevitably be overthrown, whether that religious argument is used to uphold discrimination against race, gender, nationality or religion.

  • Norm Martin

    Again, this if not a religious freedom issue.

    I can be against gay marriage and be for civil unions which would, maybe, make me feel better. Too bad when states such as Georgia had an opportunity to legalize civil unions, instead they came up with an amendment to the Georgia Constitution denying any form of gay marriage.

    When one of my nieces was in a long time same sex relationship her partner died. Dee had no rights when her partner was hospitalized, nor when she died. Dee basically had to watch the partners family come and take things they had shared together. Dee died some years later the results of a congenital heart condition.

    We stood on a hillside where a battle for Atlanta was fought during the Civil War, and conducted her grave side service. Our family and her gay friends grieved her death . I was the minister of that funeral service.

    Yes, this is a civil rights issue.

  • James Carr

    All were male/female.