The people of Maine may be getting high, but their civil rights standards have proven to be awfully low. On Tuesday, November 3, the people of Maine voted in a referendum that would reverse the government’s ruling on same-sex marriage. This is the second time in just over a year that an American state’s residents have overturned their government’s decision to permit gay marriage, and it constitutes a $4-million loss for the gay rights movement. I’ve had the misfortune of hearing many of the arguments against same-sex marriage: that it’s unnatural, infringes on religious freedom, or lies outside the purview of the state. I’m still convinced that every one of these is deeply rooted in thinly veiled prejudice, or striking ignorance.
Who actually believes that the U.S.’s current legal system operates on the basis of natural-law ethics? That Thomas Aquinas listed some principles for a moral life, and then everything just pretty much worked out for him, and Western civilization ceased to change? No contemporary system of civil law takes for itself the maxim that “what is natural is good.” For example, I feel a natural inclination to punch everyone who’s ever used the word “intertextuality.” If I punched them, that would not be good. Case in point. Instead, American law tends to operate with more radical, counterintuitive principles like “what promotes happiness is good” or “what promotes equality and civil rights is good.” Appeals to natural law were used to justify a ban on interracial marriages until 1968. It wasn’t a good argument then and it isn’t now.
This is typically where the religious arguments come into play – that same-sex marriage is contra-biblical, and that marriage is an essentially religious institution. Let’s be clear then: the redefinition of marriage is not in any way an infringement upon religious freedom, as it does not force religious individuals to alter their religious beliefs or action. Religious individuals would still be free to advocate for traditional marriage and continue hating. Here in Canada, for instance, we even extend special legal protection to religious individuals who chose not to perform such ceremonies.
The relevant account of religious freedom – the ability to practice what you believe to be religiously valid – stands only to be enhanced by same-sex marriage legislation. Many religious institutions would like to marry same-sex couples within their religious institutions: Unitarians, the Metropolitan Community Church, Reconstructionist Jews, to name a few. When same-sex marriage is legal, they can actually act upon their religious choices without having to break civil law. The legality of same-sex marriage neither limits the freedom of speech or action of religious individuals. It just means religious individuals are not empowered to limit the action of non-religious individuals in this realm, and I tend to think that’s A-okay.
My favourite argument is the idea that same-sex marriage laws are wrong because “the state should stay out of marriage.” As though the state hasn’t been legislating, sanctioning, and incentivizing heterosexual marriage all along. Interestingly, the people who make this argument rarely follow it to its logical conclusion and try to abolish the institution of marriage altogether. So given that the government doles out legal and financial privileges with marriage, it has a responsibility to do so in an equitable way, and that means non-discrimination against homosexual couples.
“Domestic partnership” status is not enough. Although same-sex couples who register as domestic partners in Maine can receive some limited benefits, there are still substantial legal and financial differences between “spousal” and “domestic partner” status. Federal and state laws require different tax treatment, pensions, and even survivor packages for domestic partners. And on top of the fact that “equal benefits” never really amount to “equal” benefits in practice, the formal category of “marriage” affirms a universal recognition of the validity of one’s relationship. Marriage is a deeply entrenched, socially valuable, persistent life goal for many individuals. If you’re going to deny this to anyone, you better have a damn good reason.
For a state that prides itself on its socially liberal and secular attitude, Maine has a lot of explaining to do. If we learn nothing else from this case, I think it’s time to think federal. Every time voters go to the ballot with this issue, same-sex marriage loses. In a country where roughly one adult in five thinks the sun revolves around the Earth (according to a terrifying article published in the New York Times), civil rights should not be subject to a popular vote.
Riva Gold writes in this space once a week. Once a week. Once a week. Write’r: firstname.lastname@example.org.