It now appears that the Maryland legislature is likely, in coming weeks, to legalize same-sex marriage in the state. Coming from a notoriously liberal state that just elected Barbara Mikulski to her fifth term in the Senate, this will not surprise anybody. Still, it might constitute a milestone for the gay marriage movement because Maryland was the first state in the US to ban same-sex marriage by law. Under the Family Law Act of 1973, "only a marriage between a man and a woman is valid in this State." Before that, marriage in the US was regulated by common law, not by statute. By 1994, in the face of increasing activism by same-sex couples seeking marriage, 45 states had passed marriage laws that defined marriage as being between a man and a woman. In 1996, President Clinton signed the Defense of Marriage Act, which prohibited the federal government from recognising same-sex marriages or any other kind of same-sex union. This turned out to be the high-water mark for the effort to prevent same-sex marriage.
The following year, the Supreme Court of Hawaii became the first to find prohibition of same-sex marriage unconstitutional. Hawaiians responded by voting, by a margin of 69% to 31%, to amend the state constitution to relieve the state courts of jurisdiction over marriage. In late 1999, Vermont's Supreme Court issued a similar ruling, and in 2000 the Vermont legislature acquiesced by recognizing same-sex civil unions. This established the pattern that has been followed for the past decade: activist courts imposed legal recognition of same-sex relationships contrary to the will of democratic majorities, who sometimes succeeded in reversing the courts' radical reinterpretations of marriage and sometimes failed.
The reasoning of same-sex marriage proponents is invariably based on an absolutist form of individualism, which recognizes no criterion of justice besides the equal treatment of all competent adults. Other criteria, such as the impact on families and children, public morals, social stability, and religious freedom, are ignored or dismissed. Some courts have gone so far as to state that hatred of homosexuals is the only possible reason why anyone would want to differentiate between same-sex and opposite-sex couples. Thus, they wield their liberal prejudices as a preemptive ad hominem attack to dismiss all opposing arguments before they are even enunciated.
Wherever same-sex marriage is enacted, conflicts with religious liberty inevitably emerge. In Canada, Catholic clergy have faced hate-crime investigations by human rights commissions for simply reiterating Catholic teaching on homosexuality. In Massachusetts, Catholic Charities was forced out of the adoption business because it could not agree to place children with same-sex couples. In California, doctors may not refuse to artificially inseminate lesbians on religious grounds. And in a number of cases in both Canada and the US, photographers have been fined for discrimination after they declined to photograph gay weddings. The most extreme views have been put forth by EEOC Commissioner Chai Feldblum, who states, "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."
Feldblum is unusual only in her candor. The primary agenda of the ACLU for the past two decades has had a similar point: to transpose the traditional places of sex and religion in our culture. Where religion was once expected to be a person's primary public affiliation, source of identity, and basis of social behavior, sexual expression was expected to be conducted discreetly in private between two consenting adults. A presumption of privacy in matters related to sex and reproduction was the basis of the Supreme Court's 1973 decision in Roe v. Wade. But liberal activists now despise privacy in sexual matters, holding that insistence on privacy facilitates shame and demeans sexual identity. Rather, sexual identity is to be proclaimed, celebrated, and lived publicly. Where the sexual innocence of children was once protected by social consensus, now their sex education might begin before they learn the multiplication tables. In short, sex is being pushed out of the closet.
Meanwhile, secularists are trying to shove religion into the closet. They portray even the mildest public display of religion as inherently offensive to anyone not of that religion. They increasingly substitute "freedom of worship" for "freedom of religion" in an effort to redefine religious liberty as nothing more than the freedom to do whatever you want in the privacy of your own church, synagogue, temple, or mosque. Many educators now take it as part of their job to counteract the religious upbringing of their pupils. Some would even prohibit all religious indoctrination of children, calling it a form of child abuse. In short, secularists are working to reduce religion to a private recreational activity that consenting adults may engage in discreetly behind closed doors.
The American public has little patience for this sort of anti-religious activism. But same-sex marriage and the cluster of gay rights that always accompany it into law have become a way for activist courts to circumvent American religious sensibilities. Can there be any doubt that secularists will continue to use same-sex marriage laws as a bludgeon against religious liberty?
According to The Washington Post, my own state senator, Jim Rosapepe, endorsed Maryland's same-sex marriage bill only after the "conscience clause" was strengthened, which would make it clear that religious organizations do not have to participate in ceremonies that violate their beliefs. But I'm not sure why we should trust courts that have overturned previous marriage laws to respect a conscience clause whose effect is to permit discrimination against same-sex couples. In any case, the conscience clause appears to cover only religious organizations, not religious individuals like wedding photographers or fertility doctors. I can't help feeling that the Maryland I will return to in a few months will be less free than the one I left two years ago.
The following year, the Supreme Court of Hawaii became the first to find prohibition of same-sex marriage unconstitutional. Hawaiians responded by voting, by a margin of 69% to 31%, to amend the state constitution to relieve the state courts of jurisdiction over marriage. In late 1999, Vermont's Supreme Court issued a similar ruling, and in 2000 the Vermont legislature acquiesced by recognizing same-sex civil unions. This established the pattern that has been followed for the past decade: activist courts imposed legal recognition of same-sex relationships contrary to the will of democratic majorities, who sometimes succeeded in reversing the courts' radical reinterpretations of marriage and sometimes failed.
The reasoning of same-sex marriage proponents is invariably based on an absolutist form of individualism, which recognizes no criterion of justice besides the equal treatment of all competent adults. Other criteria, such as the impact on families and children, public morals, social stability, and religious freedom, are ignored or dismissed. Some courts have gone so far as to state that hatred of homosexuals is the only possible reason why anyone would want to differentiate between same-sex and opposite-sex couples. Thus, they wield their liberal prejudices as a preemptive ad hominem attack to dismiss all opposing arguments before they are even enunciated.
Wherever same-sex marriage is enacted, conflicts with religious liberty inevitably emerge. In Canada, Catholic clergy have faced hate-crime investigations by human rights commissions for simply reiterating Catholic teaching on homosexuality. In Massachusetts, Catholic Charities was forced out of the adoption business because it could not agree to place children with same-sex couples. In California, doctors may not refuse to artificially inseminate lesbians on religious grounds. And in a number of cases in both Canada and the US, photographers have been fined for discrimination after they declined to photograph gay weddings. The most extreme views have been put forth by EEOC Commissioner Chai Feldblum, who states, "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."
Feldblum is unusual only in her candor. The primary agenda of the ACLU for the past two decades has had a similar point: to transpose the traditional places of sex and religion in our culture. Where religion was once expected to be a person's primary public affiliation, source of identity, and basis of social behavior, sexual expression was expected to be conducted discreetly in private between two consenting adults. A presumption of privacy in matters related to sex and reproduction was the basis of the Supreme Court's 1973 decision in Roe v. Wade. But liberal activists now despise privacy in sexual matters, holding that insistence on privacy facilitates shame and demeans sexual identity. Rather, sexual identity is to be proclaimed, celebrated, and lived publicly. Where the sexual innocence of children was once protected by social consensus, now their sex education might begin before they learn the multiplication tables. In short, sex is being pushed out of the closet.
Meanwhile, secularists are trying to shove religion into the closet. They portray even the mildest public display of religion as inherently offensive to anyone not of that religion. They increasingly substitute "freedom of worship" for "freedom of religion" in an effort to redefine religious liberty as nothing more than the freedom to do whatever you want in the privacy of your own church, synagogue, temple, or mosque. Many educators now take it as part of their job to counteract the religious upbringing of their pupils. Some would even prohibit all religious indoctrination of children, calling it a form of child abuse. In short, secularists are working to reduce religion to a private recreational activity that consenting adults may engage in discreetly behind closed doors.
According to The Washington Post, my own state senator, Jim Rosapepe, endorsed Maryland's same-sex marriage bill only after the "conscience clause" was strengthened, which would make it clear that religious organizations do not have to participate in ceremonies that violate their beliefs. But I'm not sure why we should trust courts that have overturned previous marriage laws to respect a conscience clause whose effect is to permit discrimination against same-sex couples. In any case, the conscience clause appears to cover only religious organizations, not religious individuals like wedding photographers or fertility doctors. I can't help feeling that the Maryland I will return to in a few months will be less free than the one I left two years ago.
