If the Supreme Court took seriously the language, history, and structure of the First Amendment, it would declare laws authorizing same-sex marriages unconstitutional?and void every other existing marriage law too. Under the U.S. Constitution, marriage belongs in church, not in the courthouse.
The First Amendment bars any establishment of religion or any prohibition on the free exercise of religion. By its text, it restricts only Congress, not the states. However, the Fourteenth Amendment guarantees all Americans the privileges and immunities of citizenship, equal protection of the laws, and due process under law. The Court has long held that this Amendment incorporates the First Amendment, thus barring the states from establishing any religion or barring any American from freely exercising his or her religion.
Thinkers in the medieval period argued that no people could survive without a common religion, and religious leaders such as St. Augustine argued that governments were obliged to force dissenters to conform. By bitter experience, we learned better. Forced religious conformity is a recipe for religious war and oppression. It leads to neither peace nor belief. Instead, the dominant religion is corrupted by power and hypocrisy. Meanwhile, dissidents, denied the right to practice their religions as they understand them, face the unattractive choice of accepting oppression or resisting. Most will resist passively if they must and actively if they can.
The First Amendment exemplifies one of the great solutions to the medieval problem. The American system simply declares that religion is private. Not individual?most religions can be practiced only in a community, and many require schools and other communal services?but without governmental involvement. We do not vote on which religions to support and which to suppress; we simply leave each to its own devices. Instead of seeking unity through conformity in the medieval mode, we have created one nation out of diversity and tolerance by agreeing to disagree.
Marriage is a fundamentally religious act. Virtually every religion has strictures regarding it. For Catholics and some Protestants, it is a sacrament: an ?efficacious [sign] of grace, instituted by Christ and entrusted to the Church, by which divine life is dispensed to us.? A Catholic marriage is a holy act that can be performed only with the assistance of God and God?s representatives on earth. As the Gospel of Mark puts it, ?What therefore God hath joined together, let not man put asunder.?
For other religions, marriage is closer to a contract between two individuals than two people and God. Jews, for example, traditionally see marriage as a covenant before the entire community, with provisions that are determined by religious custom and religious authorities in light of their understanding of religious law. But a Jewish marriage is not a sacrament in the Catholic sense; it requires community witnesses, not authorization from a religious authority (and while Jewish divorce is a serious matter requiring communal intervention to protect the various parties, it is not a sin).
Same-sex marriage is a classic issue of religious dissent. According to some religions, it is a great sin. Genesis, some say, tells a story of Adam and Eve, not Adam and Steve, and therefore gender roles must always be fixed. Indeed, they are not wrong to see a great anxiety about gender roles in many biblical traditions; Leviticus, in particular, treats mixing gender roles as almost as dangerous as mixing linen and wool, eating forbidden foods, or working on Saturday, while several New Testament authors view all forms of sexual relations as deeply problematic.
Others, however, see other lessons and other rules in the Bible. Most American religions reject Leviticus?s ritual rules wholesale, and even those who still observe those strictures generally accept that ritual should never be an excuse for cruelty. Many view Genesis?s statement that ?it is not good that a person be alone? as far more fundamental than Adam?s and Eve?s genders (if, indeed, Adam, who was created ?male and female,? was fully gendered?the Midrash reads this difficult passage as implying that the first man was androgynous). If God made a man or a woman so that he or she is sexually attracted to persons of the same sex, on this view, that is the companionship that is appropriate to them, and their community should?perhaps must?support them. Others simply take seriously the commandment that we not visit the sins of the fathers on their children: regardless of their views of the couple, they understand that the community and its law has a special obligation to protect children. Families need legal protection, regardless of the parents? genders.
Banning same-sex marriage, from this perspective, is an act of wanton and gratuitous cruelty, prohibited by rational morality and religious tradition alike. Indeed, according to the Talmud, the sin of Sodom that warranted its fiery destruction was that its people would hurt others even when they stood to gain nothing themselves. Hatred so spiteful it isn?t even selfish, not deviant sex, is the real sodomy.
Many other American religions do not recognize the Bible as a source of authority, let alone a binding authority. Other Americans have equally deep commitments to moral traditions that do not use the language of religion but fill the same personal and social functions. They too disagree, some believing that other people?s sexual preferences or behavior is a justification for discrimination and others maintaining that decent people do not mistreat others for such reasons.
In a society devoted to the principles of living together in tolerance and mutual respect, there are a number of theoretically possible resolutions to our disagreements about the religious meaning of marriage. Our Constitution, however, is clear. The First Amendment commands that government refuse to command religious practices. The state may not require people to follow one religion?s practices over another. And marriage, a fundamentally religious practice, has no place in the statute book. Churches must be given the unrestricted right to marry, or not marry, those couples that they believe can be married according to the law of God as each church understands it. But no religious group may use the power of the state to require those who disagree to practice according to its doctrine. So long as marriage remains a religious act in the eyes of many Americans, the state must bow out of this business.
Civil unions, on the other hand, are not sacraments but legal arrangements to determine how the law will treat couples and families. The First Amendment thus requires a rigid separation between the religious ritual of marriage and the civil legal status of union. The former?the sacrament or covenant?is for churches alone. The latter?the doctrine that determines when two people may act as one for legal purposes (like holding property or filing taxes jointly), have special rights to each other?s person and care, and exercise the many other privileges we grant families and couples?would be the exclusive domain of the state. No church should have the right to declare two people one entity for purposes of the Internal Revenue Code or to declare that one person has the right to determine the medical treatment of another: those are questions for the state. And no state may claim the authority of God to join two people into one.
The current Supreme Court majority, however, does not view itself as bound by the text, history, intent, or structure of the Constitution, as should be obvious to anyone who has considered its use of the First Amendment to protect political corruption, its repeated granting of rights against the people to corporations that the Constitution never mentions, or its perversion of the Civil War Amendments? guarantee of equal protection of the laws to award the presidency to the candidate with fewer votes. We may see a decision declaring that state or federal bans on same-sex marriages are invidious discrimination, as they obviously are, or we may see a decision holding that the Constitution permits discrimination against this group of our fellow citizens for some more or less clearly articulated rationale. We will not see a decision that takes the command of the First Amendment seriously.
The federal ?Defense of Marriage Act? denies some Americans the protection of law for no good reason other than the religious views of other Americans. It bears a shocking resemblance to the anti-miscegnation laws that epitomized the shameful Jim Crow regime. It has no basis in any enumerated power or historical practice of Congress?marriage has been almost uniformly left to the states. The federal act, then, establishes religion, denies equal protection of the laws, creates a badge of slavery, and is, in any event, beyond the power of Congress.
But state regulation of marriage is a slightly different matter. The states have been regulating marriage, despite state and federal guarantees of freedom of religion, since the beginning of the republic. In the end, the Constitution takes its legitimacy from the understandings of the American people. We have no political movement urging that the state remove itself from the religious institution of marriage. So perhaps the Court would be justified in ignoring the clear command of the First Amendment and allowing the states to continue, as they always have, to mix religion and legislation in this area. A theoretically pure First Amendment would bar state marriages, but in the messy real world of practical law, governmental marriage is too important to too many people to be so easily privatized.
But that does not mean that the states can continue to ignore the more fundamental and obvious command of the Fourteenth Amendment?s equal protection clause. A Sodomite statute designed simply to hurt one group without benefiting any other defies the most basic premise of a republic: equal citizenship. The equal protection of the laws means that the privilege of marriage must be made available equally. Perhaps we are justified in ignoring the clear command of the First Amendment. No decent and free country, however, can deny its citizens fundamental rights and privileges for no more reason than religious disagreement or naked prejudice. If state marriage is constitutional, it is only constitutional if it is available to Adam and Steve on the same terms as Adam and Eve.