Yes on 8, No on Prejudice

Despite the fact that I am based in the UK, over a third of the readers of this blog are based in the USA. From time to time therefore I address issues that aren’t directly pertinent to the UK, but will probably be of direct interest to my American readers.

As well as next Tuesday being General Election day in the USA, it is also the day when a series of local referenda will take place across the States on all kinds of issues. The most prominent of these in 2008 is the vote on "Proposition 8" in California. For those who have no idea what this is (though you may have spotted the "Vote Yes on 8" link on the sidebar), here’s what Wikipedia has to say:

Proposition 8 is an initiative measure on the 2008 California General Election ballot titled Eliminates Right of Same-Sex Couples to Marry. If passed, the proposition would "change the California Constitution to eliminate the right of same-sex couples to marry in California." A new section would be added stating "only marriage between a man and a woman is valid or recognized in California."

The measure was originally submitted for the ballot by petitioners with the title "California Marriage Protection Act." The title and summary were revised by Attorney General Jerry Brown to more "accurately reflect the measure." The Superior Court of California ruled in favor of these changes, stating, "The title and summary is not false or misleading because it states that Proposition 8 would ‘eliminate the right of same-sex couples to marry’ in California. The California Supreme Court unequivocally held that same-sex couples have a constitutional right to marry under the California Constitution."

Prop 8 is a vote on the front-line of the culture wars in the USA. It is the key presenting issue at the moment in the battle over gay liberation and equality. For the liberals a no vote is necessary to defend freedom and human rights, for the conservatives it is necessary to vote "yes" in order to protect traditional family values. It is debate that is raising huge amounts of friction and anger both within California and beyond the State boundaries.

I believe that the way people should vote on Prop 8 is "Yes". But in saying that, I want to spell out what my approach to the issue of legally recognising same-sex relationships is as a Christian, and how therefore a recommendation to vote yes does not necessarily mean that I am a bigot on the issue. I hope that if you read this as a "No" voter (whether or not you’re in California), you will engage with the substantive content of what I write and not simply with your emotional reaction to my piece.

In the below, when I refer to "the current understanding of marriage" I am assuming the position of marriage as it was in California in 2007, namely that only people of the opposite sex can get married.

Human Rights?

So, where to begin? I believe that the core of the "No on 8" argument can be summed up by this statement from the official campaign website (emphasis added):

Let’s remember that gay and lesbian people are our neighbors, our friends, our coworkers and our family members. They are nurses, firefighters and small business owners. Same-sex couples are loving and committed couples who want to get married. They care for each other, they pay taxes and they want to protect each other and take responsibility for each other, just like other couples. We should not hurt same-sex couples in California by eliminating their right to marry.

It’s not the government’s place to tell couples who have been together for years whether or not they are allowed to marry. In California, we let people decide what is best for themselves – without government interference. Eliminating fundamental rights for same-sex couples treats them differently under the law – AND THAT’S WRONG.

The argument can itself be summarised in this simple understanding – "Marriage is about two people who love each other having the right to marry. All gay couples want is the right to marry the person they love".

At first sight that’s a powerful argument. But on closer inspection there is a fundamental flaw in the argument in favour on gay marriage based on love. It is simply this – "straight" people are currently not entitled to marry the person they love, so there is therefore no need to enforce an equivalent "human right" for a gay person.

The marriage law as it currently stands in most western countries does not permit anybody to marry the person they love. For example, at the moment in the UK you cannot marry your sister or brother even if you do love them. The same goes for parents or children or other family members. You also have no automatic right to marry somebody who isn’t a citizen of the country that you are of, even if you really, really, really, really love them.

If we accept these current prohibitions on marriage, we can then see that when the No on 8 campaign says "It’s not the government’s place to tell couples who have been together for years whether or not they are allowed to marry" they are actually proclaiming a falsity. Implicit in our civil political system is the understanding that it is the government’s place to tell couples, however long they have been together, that they may not marry. It may make such a judgement on the basis of science or economic or political considerations, but it implicitly does have the right to do so. If not, then we wouldn’t block brothers and sisters marrying each other.

So we acknowledge (and dare I say, concede) that the state can prohibit certain relationships from marrying. If we don’t then we fail to have any argument against prohibiting family members from marrying since we are essentialy arguing that people should be entitled to marry who they want, regardless of sexuality or status. I recognise that, for example in the UK, marriage prohibitions and civil partnership prohibitions (i.e. family members) mirror each other so one might argue that there is no contradiction in the right to enter marriage or a civil partnership, but the issue we are addressing here at present is not the equivalence one, but rather the argument based around the right to marry whoever I want.

Once we accept that we do not have the right to marry who I want (for example my brother whether such a relationship is straight or gay), we have conceded the principle that the State does have the right to ring-fence the boundaries of valid marriage. If this is so, then the Government of California, elected by the people, can rule that marriage is only to be allowed between a man and a woman. That doesn’t make such a decision moral, but we do recognise that the argument based on natural equality doesn’t work, unless you make moral (bigotted?) assumptions about family members marrying. But by making such an assumption you allow the possibility of the assumption that same-sex couples should not, de facto, marry.

Are gays currently discriminated against?

I want to move onto the point I raised earlier, that marriage is not a definite follower from love. I blogged recently that we have got ourselves into a pickle in the western conservative church by glorifying heterosexual attraction. Such an emphasis on the erotic is exactly the same argument that the liberal lobby are now using. I wrote:

Western christianity has been diseased by the romantics, and that in that process we have lost sight of what marriage is all about. That change in perspective fundamentally damages our ethical basis and leads us not only into all kinds of faulty reasonings about sexual attraction, but also in our approach to how homosexual people should approach relationships.

Mills begins by explaining how before Rousseau, western civilization didn’t have romantic novels. Oh yes, we had novels with sex and adultery and other forms of misdemeanour, but they were all about men and women who were happily married, had a bit of a dalliance, and then came to their senses and returned to their spouses, or who didn’t return and everything was utterly shameful and disastrous. This was because until the romantics, western society viewed marriage as primarily a social construct, created for the benefit of men and women. You got married to have children. You got married to provide stability to society. You got married to provide stability to your wider family. It was a bonus if you actually fancied the person who you got married to, if you experienced love at first sight.

Mills argues that this was the Biblical picture. When you explore what the Scriptures say about marriage, they very rarely describe it in terms of romance. The New Testament never uses eros when describing love inside marriage. The focus is on learning to love someone and growing in that learning to love. Yes, sex and sexual attraction plays an important part (and is rather useful when trying to produce another generation of humans), but it was not the driving force behind the reason to get married – it simply came as part of the package.

When applying this argument in connection with the issue of whether a homosexual man might marry a woman, i continued:

Mills’ argument is very simple – remove the consumation of specific sexual desire as a key driver marriage, and you will destroy not only the sociological barriers to traditional marriage for men who are sexually attracted to other men, but also you will remove the argument from the pro-gay camp for recognising and accepting gay unions. This is because the glorification of heterosexual desire has led us down a road that has inadvertently justified many sexual relationships outside of marriage. Without the glorification of heterosexual desire, other sexual desires cannot necesarilly be protected by the state in the way that heterosexual desire currently is. If marriage is about man and woman, not about heterosexual and heterosexual, then the need for legal guarantees over the union of homosexual and homosexual vanishes. Marriage, Mills argues, is not ultimately about hitching up with the person you fancy –  it is about forming a union between a man and a woman that benefits them, their family (to be and already existing) and society.

In the light of what I’ve written above, I want to represent the legal barrier to same-sex marriage in a new light. If Proposition 8 was passed and marriage was not available for gay couples, there would still be no discrimination on the basis of sexuality in the marriage law. As the law would stand were Prop 8 passed, if you were a man you could marry a woman, and you wouldn’t be prevented from doing so regardless of your sexuality. This is the key point – discrimination is the refusal to permit the performing of the exact identical act. For example, to pay a woman less for doing the exact same job as a man is discrimination. To refuse to serve someone a hamburger because they are black, but to serve someone who is white is discrimination. However, to refuse to marry a gay man to another man is not discrimination, because a straight man is equally prohibited from marrying another man.

Marriage has been defined by the state as a contract between a man and a woman. What the No to 8 lobby are actually wanting to do is not create equality in front of the law between straights and gays, because such equality already exists. What they are actually arguing for is the extension of marriage to incorporate same-sex unions as well as other-sex unions, regardless of the sexuality of those entering into the relationship. Such an extension is not in reality an equalising of human rights, but actually the creation of a new civil right for everybody, the right to marry someone of the same sex. It is not an argument based around sexuality and sexual attraction, because unless you prohibited a heterosexual to marry somebody of the same sex as them, who you would be permitted to marry would still be utterly unconnected to your sexuality.

Traditional Views

I want you to understand very clearly what I am and am not arguing here. What I am not doing is using the above as an argument against extending marriage to the right to marry someone of the same sex. What I am doing is saying that any argument about extending marriage to same-sex partnerships is not one based around issues of equality, because currently men and women, gay or straight, are treated equally in front of the law, and were Prop 8 to fail, they would still be treated identically.

I am therefore supporting a "Yes" vote on the following basis:

1. I do not believe that there is an obvious discrimination against homosexual men and women inherent in the current marriage laws as neither gay nor straight people are currently entitled to marry who they want, or specifically someone of the same sex that they are.
2. Given that I hold a conservative Biblical view, I see no reason to extend the definition of marriage beyond a union of male and female.

Point two does not automatically follow from point one. You might reasonably argue that there is no issue of discrimination involved in withholding the right to marry someone of the same sex from everybody (so agree with all that I have said above) and yet at the same time decide that you are in favour of widening the definition of marriage. If you took such a view however, you would not be voting "no" on the basis of human rights and equality, but rather on the basis that you believed it was right for the Government to widen everybody’s right to marry, regardless of sexual orientation.

Please note that this is a position I believe I have fairly consistent on over the past two years. Back in 2006 I defending the European Court of Human Rights’ rejection of a petition by a pair of sisters to be allowed a Civil Partnership. At the time I wrote:

Step back ten years to when Civil Partnerships were just a legislative pipe dream. Imagine that you hear a news story that a brother and sister who happen to live together want to have the same inheritance tax rights as a married couple. What would your reaction be? Do you think that the brother and sister should have the same inheritance rights as a married couple? What about an unmarried couple? How about children?

…

In the same way that just because a pair of sisters living together is claimed to be the same as a same-sex couple doesn’t justify tit in any way being treated identically in the eyes of the law, a same-sex couple that looks for all intents and purposes like a married couple does not, in and of itself, create an argument that a same-sex couple should be treated like a married couple. Indeed, if society so chooses to recognise one relationship as legally identical to the other it may freely do so, but unless you have some form of objective indisuptable moral framework which the law is intended to reflect, any claim that a form of human relationship should be given legal equivalence to another, or be given a different legal status, is just that – a claim. It has no moral integrity in and of itself but relies for force of argument only upon the opinion of the specific members of the body politic who create the judical and societal framework within which we live.

We see therefore that the opposition to (and support of) allowing people to marry who they want, regardless of the sex of that person, is not ultimately a matter of correcting codified or cultural discrimination, but rather comes down to a moral judgement as to whether the definition of marriage can be changed. My moral judgement is that such a change is not what God intends for human beings, so I would vote "yes" on Prop 8. Your moral judgement might be otherwise.

Protecting Same Sex Couples

So where does that leave gay couples? Should there be legal protection, an equivalence to marriage, but not marriage itself? In the 21st Century western Christians need to accept that the societies they live in contain a large number of people whose sexual morals are different to their own. We need to recognise that laws like Section 28 in the UK included language that was deeply homophobic:

A local authority shall not—

(a) intentionally promote homosexuality or publish material with the intention of promoting homosexuality;

(b) promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.

While traditional moralists may not believe that homosexual partnerships are what human beings are called to do, to suggest that gay couples are only "pretend" families is simply refusing to recognise the care and love that many gay couples do have for each other (and their children).

A modern society may, if it chooses, seek to recognise and protect other relationships apart from marriage. Indeed, while I would not have voted in favour of Civil Partnerships in the UK (were I an MP), I can see that such a civil arrangement provides protection for gay partners in the fields of inheritance, family life etc. What is clear though is that the creation of such legal constructs is not ultimately to do with equalising rights but creating new rights.

Indeed, one might even argue that the legal recognition of civil partnerships protects marriage because by having two entirely separate legal relationships, one between a couple of opposite sex and one between a couple of the same sex, might actually protect marriage, for in the clear distinction between the two legal arrangements is becomes apparent that marriage is about the relationship between a man and a woman. It is therefore possible to be a Christian, to oppose (vehemently) the widening of marriage to include same-sex couples, and yet to insist that there needs to be some form of recognition of same-sex relationships.

Summing Up

What I am not saying is that there is no valid argument in favour of widening the definition of marriage to include couples of the same-sex. What I am saying is that such a valid argument cannot be made on the basis of current inequality in front of the law. Whether you are gay or straight, in terms of what relationships you can currently enter into, the law does not discriminate. You may wish to create a new right for all, gay or straight, to marry someone of the same sex that you are, but that is not the same as demanding equal human rights.

Ultimately therefore the debate on the definition of marriage is a moral, not a legal or "rights" issue. I take one stance on the moral debate, you might take another, but we need to recognise that in a modern democracy it is not bigotted to take a stance that opposes the creation of a new right for all. It is ultimately possible for conservatives to advocate voting "Yes" and yet at the same time to support the creation of new rights for all to enter legally recognised same-sex partnerships that are not marriage.

Over to you. Please feel free to comment on the above, or to ask questions to clarify what I’ve written.