Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation. Tradition alone cannot support legislation.
— Chief Judge Vaughn Walker, in Perry v. Schwarzenegger
Opponents of gay marriage lamented last month's Proposition 8 ruling, while supporters cheered it, but I wonder if either camp read the judge's actual ruling closely enough to catch the question that both need to hear, and need to answer. It's a question that's of huge importance but one that usually gets lost in the noise of the debate over gay marriage.
And that is: is there a non-religious case against gay marriage?
In other words, we know about the Bible verses, we know about religious teaching on marriage, we know few churches will perform gay weddings. (We also know opinion and practices are divided within the church itself, but for the sake of argument for a moment let's pretend it isn't. Go ahead and post a bazillion Bible verses in the comments, but that's not what this post is about.) But outside the church, what is the legal reason for the government to get involved?
I'm not just a libertarian saying government should try to keep its paws off everything. (I'm not actually a libertarian at all). I'm raising the exact question—mundane and boring as it is—that Judge Vaughn Walker raised in his notably methodical and well-reasoned 138-page opinion (not the work of an ideologue with his mind already made up, as opponents desperately claim). "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Judge Walker wrote. His ruling practically begs for a substantive opposing case, but Slatesays the defenders of Proposition 8 never bothered to put one together. (They seemed to presume that popular will was enough to carry them through. But despite complaints that this ruling overturns a popular vote, judges can and should have the last word on what is and isn't constitutional.) "Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory," Slate says, "this would have been a closer case."
It's important to note that Judge Walker is not forbidding churches from condemning homosexuality, or forcing them to perform gay weddings. His ruling leaves churches with every right to chart their own course on proscribing moral behavior. What he is doing is saying that moral prescriptions are not enough reason to make (or keep) a law, especially not when that law relates to constitutional rights. You have to demonstrate something more; a non-religious legal reason for the state to need to legislate about it. For instance, (and these are my examples, not Walker's), murder is forbidden by the Bible and rightly considered immoral. But importantly (if not primarily), the state has an interest in making sure its citizens are not killed, and you don't need the Bible (in environments in which it is not venerated) to establish that interest. (Sometimes I wonder if these would be the most effective pragmatic argument against abortion for pro-lifers in the public square: not the sacredness of life, but the state's interest in protecting future citizens.) Theft is also forbidden by the Bible, but regardless of that, the state has an interest in protecting property rights. I'm not saying the Bible isn't a good lawbook. But we live in a pluralistic nation, and we shouldn't desire that non-Christians here be subject to solely biblical laws any more than we'd want Christians in a mostly Muslim nation to live under laws based only the Koran.
So can a non-religious case be made against gay marriage? Perhaps. Even Judge Walker seemed to want to hear one. I know I would. I'm not convinced by what I usually hear. One non-religious argument against gay marriage is the long tradition in world and national history of heterosexual marriage, but polygamy and bans on interracial marriages are also well-supported by centuries of tradition (and, by the way, also a few Bible verses, but again that's not the point right now). So Judge Walker is right to say that tradition shouldn't be the sole basis for legislation. Another argument is social stability, which would supposedly be harmed by a radical change to a long-standing institution. But with its high rate of divorce, heterosexual marriage could also be charged with causing social instability, and indeed Walker was convinced by the argument that gay marriage results in more stability, not less, for the institution of marriage and society at large. Finally, people worry that having two gay parents is bad for children, but Walker said the plaintiffs made their case through numerous expert witnesses that the kids are turning out fine.
The most common non-religious argument against gay marriage, of course, is that gay parents cannot naturally reproduce, and that reproduction ensures the continuation and viability of the existence of the state. This comes the closest to meeting the criterion of a state interest that is not connected to religious belief. The problem is that by this standard, infertility would render a heterosexual marriage as equally threatening to the state. So would vasectomies. Or even staying single after reaching child-bearing age. Marriage is legal for the non-reproductive.
That leaves us with the church still having a lot to talk about when it comes to gay marriage, but the state having very little. As you know by now I'm a big believer in the separation of church and state, and my interest is for the sake of the church: its independence, credibility, authority, and integrity depend on not mixing goals and tactics with the state. When the church's teaching coincides with secular interests, the church should say so. But when it doesn't, the church should point that out, too, and maybe even wear it as a badge of its purity.
One radio host—the single sane one left on the radio as far as I can tell—put it very well. He said the only practical long-term solution for the state is to go to all civil unions, and leave it to churches to figure out what they want to call it and what they want to mean by it. Most churches would call it "marriage" for heterosexuals and "unions" (or nothing) for homosexuals, and religious freedom probably means they could (as long as the state doesn't deny people different rights based on what the church says). I don't know if that would work, but it makes sense. The state's interest is in registering formal partnerships between citizens and protecting the rights that go with them. The church's job is to preach about God's design for moral behavior. When either the church or the state tries to do the other's job, I get nervous.