- - Wednesday, April 24, 2013

ANALYSIS/OPINION:

One of the unremarked ironies of the Prop 8 case before the Supreme Court is same-sex couples’ demand for the blessing of state-recognized “marriage” — a label which owes much of its moral authority to its religious roots. Put another way, would there be as much of a controversy over the availability of the “marriage” title if it had no religious and moral connotations?

At oral argument, California’s Solicitor General noted that the state provides that “gay and lesbian couples do have legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction,” leading the chief justice to remark that “it’s just about the label in this case.”

California’s mistake, we are told, was in treating homosexual and heterosexual unions almost — but not completely — identically, thus triggering an equal protection argument that other states could seemingly avoid by doing nothing at all for gay and lesbian couples.

Besides creating a perverse incentive for states to avoid recognizing same-sex unions, this reasoning begs the question why the “marriage” label is so crucial, even to the point of risking the perfect being the enemy of the good.

Of course “marriage” isn’t just a label — the term carries deep cultural and historical significance and conveys a moral approbation that many gay and lesbian couples feel is critical to true equality.

And while it is true that marriage can be performed by secular state officials, it is equally true that the law and culture still allow a religious official to conduct this function, which was historically the sole province of the clergy.

State-recognized marriage melds state and religious spheres in a way one might think liberals would never tolerate, given their drive to remove religious symbols from all government spaces, especially courts.

One gets a sense that it is exactly that intertwining of religion and the state — of “morality” in whatever form — that contributes to the desirability of the marriage label.

Marriage — particularly when viewed as distinct from a civil union — is at its heart a moral institution, and one that has historically been supported and encouraged by religion.

“Only be married to one person,” we are told. “Forsake sexual relations outside this bond.” “Stay together and raise your children.”

All of these calls, moral in nature and historically tied to the institution of marriage, are restrictions on freedom. Indeed, many modern philosophers and proponents of sexual equality have chafed against the “bourgeois” norm of marriage, seeing it as offensive to the ideals of true freedom.

The fight for same-sex marriage, therefore, is not about individual freedom from government overreach: it is about public sanction and recognition.

Put another way, the fight to broaden the timeworn definition of “marriage” is not about removing morality from the public square, but about whose morality will carry the force of law.

Will the morality underpinning state marriage law be based on a secular materialist view of gender neutrality, a Judeo-Christian belief in gender complementarity, or one of a myriad other valid philosophical convictions?

Passions are flared on both sides of the marriage debate for the very reason that it is about morality. Whether you see the issue as one of equality, religion, or some other consideration, the state definition of marriage affects the entire community, either permitting or preventing private actors from distinguishing between same-sex and heterosexual unions.

The term “marriage” involves complex moral issues about which good people can disagree. As such, it is just the sort of issue best suited to democratic debate and state experimentation. It would be a profound mistake to punish states for providing civil unions, as the Prop 8 petitioners suggest.

For proponents of same-sex marriage, civil unions could be an incremental step toward the goal of full marriage equality, allowing states to experiment with greater degrees of recognition without fear of irrevocability.

For traditional marriage proponents, the compromise of civil unions would convey the material rights of marriage to gay and lesbian couples, while at the same time allowing opposing viewpoints on the moral issue.

One can sympathize with the desire to have the full moral force of marriage, but those who seek this recognition should not be doctrinaire in their campaign against religion that they prevent all public discourse on morality, and in doing so destroy the ultimate force of marriage.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs.