The relationship between the church and the state, between morality and legality, has always been contentious on these shores, even before the founders took pen in hand. The Pilgrims, for example, considered marriage a civil affair and opposed the involvement of the church in marriage. They had had their fill of the state Church of England. This did not prevent the Pilgrims, however, once they were resettled in New England, from trying to legally impose their own views of morality on the residents in their colony.
The way we currently handle marriage is a remnant of our centuries long, partly unsuccessful, effort to disentangle church and state, to disentangle morality and legality.
Have you ever wondered why we keep having these same arguments decade after decade? Century after century? It seems simple on the surface; shouldn’t we be able to keep our faith private and our legality public?
The Fourteenth Amendment of the United States Constitution guarantees all citizens “the equal protection of the laws.” Any law that prohibits gay men and lesbians from access to the legal benefits and protections provided by marriage laws is, in a plain reading of this text, unconstitutional. This is a similar legal argument to the one in the recent decision by the California Supreme Court that held sexual orientation, like race or gender, "does not constitute a legitimate basis upon which to deny or withhold legal rights."
The problem is not with the law; it is that some hold the religious belief that marriage is a sacred covenant and that the sacred cannot include same sex love. These “religious” people will now organize in California and try to get this sensible and objective ruling overturned all in the name of morality.
It is not good enough to declare that the law is public and the faith is private. Faith leaks into the public square all the time and that’s not a crime. There needs to be some coherence between the law and values, even in a country as increasingly pluralistic as ours.
And so it is the values, the morality that will have to change for there to be full equality for gay men, lesbians, bi-sexuals and transgendered people. There is no way around this struggle. Just as the religious folk provided the strongest justifications for slavery and were the last bastion of opposition to equal rights for women, so too are the religious beliefs of some a barrier to equal protection under the law for gay Americans.
And so we need to take this struggle even further into our religious communions and declare that religious rites that exclude are wrong and they are always wrong. It is fundamentally immoral to declare a whole class of people sinners and without equal rights in both church and state. Again.
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