Civil marriage

Jamie Raskin joined the faculty at the Washington College of Law at American University when I was a student there. Right away, we realized Jamie would be a different type of professor when he joined our intramural football team. I don't really see any need at this point to get into how Jamie's season ended with a fractured jaw.

My fondest memory of Jamie is from his brother's wedding, giving the most rousing and raucous best man speech I have ever witnessed. For every moment he spoke, he had the entire room hanging on his every word, eliciting roaring laughter at each moment he intended. Needless to say, Jamie was pretty impressive before a classroom of students as well.

Jamie is now a democratic candidate for State Senate in Maryland. The primary was held today, and the results should already be known by the time you read this. Jamie is running as a progressive and has taken positions on many issues. Among his positions is support of marriage for same-sex couples. Earlier this year, Jamie gave a statement before the Maryland legislature, explaining his position and opposing a state amendment. His statement is available here. Below is the response I sent to Jamie (with some editing). Wherever you stand on the issue, I hope you read both statements:

I have had a chance to read your statement before the Maryland Legislature concerning same-sex marriage (“SSM”). If I were a SSM enthusiast, I would certainly want others to read and consider your careful, thoughtful and reasoned statement. Accordingly, I hope you understand that in responding to your statement, I do so out of considerable respect. I am also fairly confident, given your interest in advancing our public policy discussions, that you welcome a dissenting response.

While I realize the issues are intertwined, my response does not address the specific issue of amending state or federal constitutions, but the issue of SSM in general.

Your statement rests on two primary suppositions: 1. Opposition to SSM is only based on theological/religious considerations, and thus is an imposition of particular religious beliefs in violation of church-state separation; and 2. opposition to SSM is irrational and wholly prejudicial, based only on fear and animus.

Together, these two arguments comprise the following narrative: “religiously narrow bigots seek to impose their intolerant views by preventing two people who love and are committed to one another from getting married.” I agree with you to this extent: if I accepted this narrative, then I too would also support your conclusions. The question before us is whether we can only consider the issue of SSM from this narratival perspective.

First is the matter of the inherent public policy invalidity of a position resting on “theological premises.” I think your position attempts to draw bright lines in an area where historically the boundaries have been, at best, fuzzy. For example, as I am sure your are aware, many of the advancements of civil liberties in our nation’s history, such as the abolition of slavery and women’s suffrage, came about through overtly, though not exclusively, religious advocacy and underpinnings. The most significant socio-political movement of the 20th century in America , the Civil Rights movement, was distinctively Biblical in its quest for justice. Its primary organization was the Southern Christian Leadership Conference. As has historically been the case, currently, there are religiously based appeals to shape government on issues such as income assistance, housing, healthcare and the environment. As a matter of fact, as your statement points out, there are many who support same-sex marriage on religious grounds.

The reason this is the case is because each citizen brings his whole perspective to the issues before us. In reading your statement, I think I know what principles (“religion”) guide your thinking on the subject of SSM. Personally, I think it is preferable to articulate one’s positions in a way that is accessible to those who have differing beliefs if one is going to be at all persuasive. However, while I think this is advisable, I do not think our Constitution dictates to our nation’s citizens the manner in which they should publicly speak. I think Yale law prof Stephen Carter is helpful here: “Efforts to craft a public square from which religious conversation is absent, no matter how thoughtfully worked out, will always in the end say to the religious that they alone, unlike everybody else, must enter public dialogue only after leaving behind that part of themselves they consider most vital.”

Admittedly, all of this presents difficulties in a society where there is a multiplicity of beliefs. However, I think your profound and heartfelt conviction on this issue caused you to address a fairly complex and even interesting subject in highly stark and simplistic terms. It seems to me your objection to religiously based opposition to same-sex marriage is not an objection to religion, but is actually a disagreement about the issue itself. In other words, it is not so much that opposition to SSM is religious, but that it is simply irrational and bigoted, in so far as you are concerned; and the religious content of the objection to SSM does not rescue it from its inherent bigotry.

I think it helpful in considering the relationship between religion and government to differentiate between two categories of beliefs. There are beliefs/practices that are distinctively religious, not subject to the state's authority. The Jewish and Christian rites of circumcision and baptism fall into this category. At the same time, there are beliefs espoused by religion that are held in common as a matter of conscience and address issues of public concern. Most of our laws fall into the latter category. To use an obvious example, the fact the Bible contains an injunction against murder does not render laws prohibiting murder an imposition of religion or a violation of the “separation of church and state.”

Far from being a “privatized” religious belief, unrelated to public concern, marriage is the most prominent example of a widely and universally recognized institution. People across all beliefs (and unbeliefs), cultures, ethnicities, etc., have been marrying one another for as long as there have been beliefs, cultures and ethnicities. It has been the building block of all societies, regardless of religion. Marriage is part of every society's foundational structure.

Throughout all this time, in spite of substantial social, cultural and religious differences concerning various aspects of marriage, always and everywhere, the definition of marriage is the union of a man and woman. The definition of marriage does not contain 5 or 6 components, one of which is that the parties be male and female. Its only component is the joining of a man and woman. That is one of the reasons why the comparison to bans on interracial marriages is misplaced. Interracial marriages fit within the definition of marriage but were forbidden because of virulent racism. Conversely, two people of the same sex can't get married not due to discrimination, but simply because their relationship is other than marriage. In all the societies that have existed across millennia, they did not contemplate marriage as either the union of a man and woman or the union of two people of the same sex, but decided to ban same sex unions because of animus towards them. The marital institution has never been intended to exclude anyone.

Also, given the brutal and painful history of race relations in this country, the ongoing comparison of the SSM issue to bans on interracial marriages comes across as exploitative, manipulative and lacking in historical perspective. Unlike race, gender is a valid distinction, no more so than in the context of human sexuality. No one thinks that heterosexuals are “bigoted” when they restrict their option of a marital partner to only those of the opposite sex. Gays and lesbians do the same thing when they restrict their options to only those of the same sex. Also, in our society, while “separate but equal” is anathema racially, and is a relic of a tortured past, it is expected between men and women in public accommodations.

While you did not explicitly advance a privacy argument in your presentation, I think it is somewhat implicit in your discussion concerning the fundamental right to marry. Besides, I think it worthwhile, while I’m at it, to address the position that the current definition of marriage infringes on the privacy of same-sex relationships. This is not so. The movement to change marriage actually takes relationships that are exclusively private and requires government involvement in those same relationships. Meddling in anyone’s private life or forcing, legally or otherwise, anyone to behave in a certain way, is not at issue. This is not a matter of restricting or prohibiting conduct. Same-sex couples can, from a civil and legal standpoint, enter into private arrangements, or even conduct religious ceremonies, recognizing their relationships, just as they have been doing.

In so far as I can tell, the driving force behind the movement to change the definition of marriage is a legal/societal declaration of the equality of same-sex relationships. In other words, it seems the primary issue is not necessarily the relationship between the interested couple, but what society thinks of it.

All of this brings us to the following question: is it valid and reasonable for the state to distinguish between male-female and same-sex relationships? You testified that such a distinction is irrational, rooted in fear and animus, and based only on prejudice. At this point, I don’t think it will surprise to learn that I disagree with this assessment.

There are valid reasons to grant a unique status to the male-female relationship: 1. human beings are comprised of a sexual binary, male and female. The union of male and female brings together and unites humanity's two equal yet distinct sexes; and 2. the male-female union is the one through which human beings come into existence. Marriage as a male-female union promotes a union which, by its design, unites children to their mothers and fathers, in contrast to same-sex unions, which, by their design and necessity, separate children from their fathers and mothers. The fact some couples can't or choose not to procreate does not change the fact that one type of relationship brings life and one can't. The difference is categorical between two different types of relationships.

This is reality as it presents itself to us. The distinction is not irrational, prejudicial or based on fear and animus. It is simply an acknowledgement of the way things are. I do not think our society should be compelled to deny that which reason and reality overtly support as true.

Furthermore, I think it is a misjudgment for proponents of SSM to connect the value and dignity of homosexuals to society’s affirmation of the false notion that male-female and same-sex relations are the same. Individual human dignity and value are inherent and not premised on society’s stamp of approval on particular behaviors or relationships between persons.

In your testimony, you identified “natural law” as an inappropriate consideration. I am not sure if you would include my reasoning within your definition. If that is the case, given the evidentiary and empirical character of my position, it is not clear to me on what basis this issue can be discussed. It would seem to me at that point that all we would have left are the raw materials of power, will and emotions.

Also, in your testimony, you challenged the notion that homosexuality is chosen and referred to the “scientific evidence” supporting its hereditary and biological basis. I do not think those are the only options. First, I agree that our sexual inclinations are not simply chosen. This does not make them biologically determined however (the “scientific” evidence on this point does not appear to carry the weight you ascribe to it). Of course, we do not simply validate conduct due to its allegedly biological basis anyway. “My genes made me do it” is not considered a valid justification. You implicitly acknowledge this in your reference to the impropriety of the State Comptroller’s conduct.

In general, in many respects, we are the product of biological and social forces that have imposed themselves on us. At the same time, we are conscious and responsible actors who have the considerable capacity to shape and direct our own lives. Both of these things are true. In this case, we also have the potent and deeply personal element of sexuality. All told, this is a complex subject that does not lend itself to reductionistic conclusions, such as comparisons to hair color. Yet, the recognition of such complexity does not mandate that the state must officially and legally declare the sameness and equality of all sexual relationships.

Admittedly, one comes across personally compelling accounts, such as those on your website, from those involved in same-sex relationships. However, I do not think, as a society, we can make our judgments based solely on such subjective accounts, as heartfelt and sincere as they may be. The articulate, appealing and sympathetic quality of a cause’s proponents should not be determinative.

The male-female aspect of marriage is what defines it. That is its objective, dispassionate definition. It cannot be stated enough that this definition has never been intended to denigrate or exclude anyone. The fact that some feel stigmatized by it should not be the basis for changing society's core institution.