I was busy most of this week and missed the bulk of the apparent bloodbath over the Rick Warren selection. I've caught up a bit lately and have been mulling the ideas extensively. When I started reading (and commenting) I was pro-civil unions, against same sex marriage, pro-Obama, liberal, and -- I must admit -- pro-Rick Warren. I like him. I loved The Purpose Driven Life. I'm evangelical. I believe like he does on many issues. Please hear me out anyway!
But I'm starting to wonder about something. If I support the First Amendment (and I do), how can I oppose same sex marriage? Isn't it true that the same Amendment that gives me the freedom to believe as I chose also prohibits me from discriminating against someone who does not? Follow me, and I'll explain.
I'm also a lawyer, so I wonder about the legal arguments. I'll admit, I do not understand the crux of the "pro"-same sex marriage legal arguments, and I've not tuned into them much to be honest. All I've heard generally is that it is a denial of "civil rights" for homosexuals to be denied the right to marry. Which right, exactly? My understanding has been that the movement has desired to carve out homosexuals as a "protected class" of people, like racial minorities and the disabled. Somehow, that argument did not resonate with me.
I may have found one that does, but I haven't thought all the way through it. I thought I would pitch it out to the KOS-iverse, and see where it lands. What if sexual orientation is viewed as a religious belief rather than a protected class of people? I have less trouble getting my mind around the idea that homosexuality is a belief system rather than a way God makes people. I know that idea in itself is offensive to many, but please hear me out. I think perhaps legally and analytically, this may be helpful.
The core problem between supporters and nonsupporters of same-sex marriage is that some people believe you are born that way and some people believe that you chose to be that way. This distinction makes a huge difference. I don't know what the scientifically accepted research is on this subject, but have personally seen research that seems to go both ways (pardon the pun). What if you don't need to resolve that question in order to find that denying homosexuals the right to marry is violative of the Constitution?
If homosexuality is treated as a belief system--that is, a religion, if you will--the possibility of protection would seem to open up. (Caveat--I am not a First Amendment lawyer, by any broad stretch of the mind. I'm going off First Amendment arguments I learned in law school a decade ago and am posting a diary instead of doing the research, so please keep that in mind.)
The basis of the GLBT "civil rights agenda" (for lack of better phrasing) is that GLBTs were born the way they are, and they should in no way be discriminated against by the State because of it. The religious objectors to the GLBT "movement" (again, for lack of better descriptors) object on the basis that they believe GLBTs were not "born that way," but rather, they chose to be that way, and according to their religious beliefs, it is a sin to make that choice. I guess they have history on their side, as marriage has historically been defined to include one man and one woman. This points up an interesting problem with the arguments refusing to recognize same sex marriages, but a different legal analysis, so I won't digress.
Hence, if we construe both sides as competing religious belief systems, where are we? The Constitution will not allow us to chose one as right over the other, but requires that we not "prohibit the free exercise" of either one nor make any law "establishing" one over the other. It would seem that State laws banning same sex marriage would fall because they elevate the religious belief that homosexuality is a sin or a choice over the belief that it is a way we are born over which we have no control which does not affect our spiritual status.
Does this make sense? Is this helpful? I'm still mulling it over and would need to research it. I am an evangelical Christian. I have my own beliefs about same sex marriage, and in fact, homosexuality itself. But I live in America and follow the Constitution. I recognize the Constitution prohibits discrimination. If a person's beliefs regarding homosexuality are deemed religious beliefs, I don't think I have a problem accepting the idea that the states can no longer deny such "believers" the right to marry.
I apologize if this sounds arrogant. I'm trying to reason my way through it while being honest about my personal beliefs. I can't wholeheartedly buy that GLBTs are entitled the same rights as the disabled and racial minorities. I can, though, buy that they are entitled the same rights as Baptists, Catholics, Atheists and Jews. I think this may be a legal angle that has not been used. If not, "my bad." Sorry!