The Federal Marriage Amendment and the Attack on American Democracy

“For centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code.”

                       Supreme Court, Lawrence v. Texas (2003)
 

“Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

he American constitution created a secular government that acts to protect the civil rights and liberties of individuals rather than imposing a particular vision of the “good life” on its citizens. Freedom of conscience and the separation of church and state are central to the political philosophy of liberal democracy. These principles, enshrined in our founding documents, have become almost universally accepted norms in U.S. society today. Nevertheless, conservative religious organizations are currently mobilizing their supporters across the country to undermine these basic principles, appealing to popular prejudice against an unpopular minority. Claiming to speak for the People, they seek to deny lesbians and gay men legal equality and the right to civil marriage through the passage of the Federal Marriage Amendment, which would impose a religiously rooted definition of marriage as the law of the land. While conservative Americans are free to practice their religious beliefs and live their personal lives however they choose, neither federal nor state government in the United States can legitimately generate public policy imposing a particular religious worldview on all Americans. Nor can it let the beliefs of some – even a majority – violate the civil rights of other individuals in society or deny equality before the law to certain groups of citizens.
 

Liberal Democracy or Christian Nation?     

Liberal political theory constitutes the most important founding tradition of American democracy. Both liberal Democrats and neoliberal Republicans endorse its basic principles – individual freedom, religious liberty, equal rights, constitutional government and impartial laws – although they interpret these concepts in different ways. According to the liberal founding myth of “social contract,” self-interested individuals left the state of nature in order to better secure their natural rights and liberties. Consequently, they established a constitutional government of impartial laws that would protect all citizens equally. The Declaration of Independence states the basic values of liberal political theory – “all men are created equal and . . . are endowed by their creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness” – while the U.S. Constitution created a secular government that would not discriminate against those who do not practice the dominant religion or who espouse unpopular beliefs.

Despite the First Amendment’s prohibition against the establishment of religion by government, Christian conservatives often insist that America is really a “Christian nation.” They argue that the American founders believed that democratic political institutions would only work if grounded on religious mores within civil society, emphasizing a comment made by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” William Bennett has contributed greatly to this right-wing project of revisionist historiography with Our Sacred Honor: Words of Advice from the Founders, a volume that catalogues stories, letters, poems, and speeches that emphasize the religious beliefs that animated many in the founding generation (among other things). The Christian Right hopes that once the religious beliefs of the American Founders are established, a theory of constitutional interpretation that privileges “original intent” will authorize the imposition of Christian moral precepts on American society at large.

While the relationship between religion and democracy in the American context is a complicated one, the fact remains that the Founding generation intentionally took the extremely radical step of constructing a secular government, constitutionally required to remain neutral toward religion. As Isaac Kramnick and R. Laurence Moore rightly stress in The Godless Constitution, “God is nowhere to be found in the Constitution, which also has nothing to say about the social value of Christian belief or about the importance of religion for a moral public life.” Indeed the fact that the American constitution institutionalized a secular state was both revolutionary and controversial. While conservatives are certainly correct that the Bill of Rights protected states’ rights not individual rights, leaving the states free to establish religion, in fact only five states actually permitted the establishment of religion. Thus, the conservative attempt to redefine America as a Christian nation completely ignores the fact that this country was remarkable for its intentionally secular Constitution.

The Logic of Liberalism  

In principle, the Bill of Rights has protected individual rights from the tyranny of federal and state governments and majoritarianism ever since ratification of the Fourteenth Amendment after the Civil War. This important amendment extended the liberal principle of legal equality by mandating “equal protection” of the laws for all U.S. citizens. While never fully actualized in practice, the principle of legal equality has been successfully used to justify progressive change. African-Americans utilized this principle during the Civil Rights Movement in their struggle to end segregation. While the Right violently opposed legal equality at the time, contemporary conservatives have largely accepted the principle of colorblind law. At the same time, however, colorblindness in law is completely compatible with the New Right’s “new racism,” wherein de jure legal equality is used to challenge affirmative action and other remedial measures that seek to address institutional racism.

The struggle for genderblind law has also been largely successful. Although feminists lost the battle for the Equal Rights Amendment (ERA) during the 1970s, since that time the principle of legal equality for women has been largely implemented through the Courts, which are charged with following the logic of liberalism as they apply the principles of the Constitution to new areas. While historical custom and reactionary political agendas have resulted in some unfortunate constitutional rulings, overall the level of legal equality within American society has increased over time.

A consistent application of the philosophical principles of liberalism justifies same-sex marriage: A secular state committed to legal equality cannot legitimately deny civil marriage with all its benefits to particular citizens on the basis of gender or sexual orientation. To do so would be to violate the basic principles of the United States as a liberal democracy. While I would argue that the Christian Right is losing its battle to prevent the extension of civil rights to lesbians and gay men, there is no guarantee that politically-appointed judges will rule in a principled way. The Courts are, however, slowly beginning to recognize this logic. The Massachusetts Supreme Court has actually legalized same-sex marriage. Societal attitudes are also changing. 58 percent of first year college students now “think gay and lesbian couples should have the right to ‘equal marital status,’ i.e., civil marriage”—including “half” who identify as “middle-of-the-road” or “conservative.”[1]

Illiberal Reaction

Despite the compelling logic of philosophical liberalism, traditionalists on the Right have always actively opposed increasing levels of legal equality – first for African Americans, then for women, and now for lesbian, gay, bisexual, transgender, and queer (LGBTQ) people. The Old Right explicitly supported white supremacy at a time when it was socially acceptable to publicly denigrate African-Americans and claimed that racial equality would destroy the American way of life. It vehemently opposed the Supreme Court’s principled ruling in Brown v. Board of Education, accused the justices of legislating from the bench, and mobilized one of the largest grassroots campaigns in U.S. history to attack all attempts to enact racial equality.

Opposition to racial equality included a ban on interracial marriage – including an attempt in 1912 to amend the U.S. Constitution to that effect. State bans on interracial marriage continued until 1967 when the Supreme Court ruled anti-miscegenation laws unconstitutional in Loving v. Virginia, stating “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . one of the ‘basic civil rights of man’ . . . and cannot be infringed by the State.”

The Republican Party was able to become competitive in the historically democratic South by capturing the racist vote, attracting southerners who came to reject the Democratic Party, when it started backing civil rights legislation under the Kennedy and Johnson administrations. In 1964 the Republican Party supported Barry Goldwater for president, one of the few northern senators opposed to the Civil Rights Act; he wanted the states to decide for themselves how to deal with racial issues.

With the landslide defeat of Goldwater and the acceptability of explicit racism on the decline in the general public, right-wing leaders began repackaging their message to make it more appealing to mainstream Americans. The conservative mobilization against feminism – and in particular the ERA and abortion right – helped solidify this “New Right” during the 1970s and played a very important role in its success, the election of Ronald Reagan in 1980, and the rightward shift in U.S. politics. Anti-feminism provided a link with evangelical Christian churches, mobilized traditional homemakers who felt their position threatened by changing laws and mores, and focused the reaction against cultural and political change. Remarkably, Reagan inaugurated his 1980 election campaign by promoting “states’ rights”—a southern code word for segregation—in Philadelphia, Mississippi, scene of the murder of three civil rights workers 16 years before.

Feminism and the LGBTQ civil rights movement are linked theoretically through the political philosophy of liberalism and politically through common struggle. While unprincipled liberals sometimes try to deny this connection out of political expediency, the Right quickly recognized the logic of liberalism that provided the potential for unity between women and LGBTQ individuals, and used it to their advantage. In its rise to power, the New Right successfully manipulated homophobia to increase opposition to gender equality as well as explicitly condemning all attempts to accord non-heterosexuals the equal protection of the law.

Christian-Right Theology and the

Attack on Religious Freedom

Current right-wing opposition to gay marriage not only constitutes another example of the Right’s fundamentally anti-democratic, anti-liberal politics, but also forms a central part of the Christian Right’s larger agenda that seeks to reverse the progress of feminism, reinforce male dominance, and restore the patriarchal family with its traditional gender roles as the hegemonic family form in America. Because many Americans balk at the prospect of disconnecting marriage from its traditional heterosexual moorings, the Christian Right hopes the gay marriage issue will help galvanize support for their larger agenda, just as opposition to the ERA helped them consolidate their base during the 1970s.

While Christian Right organizations claim to speak for the American people when they oppose civil marriage for lesbians and gays, they are actually trying to impose their own particular religious worldview on U.S. society in direct violation of the separation of Church and State. They define marriage as a sacred religious institution and homosexuality as a sin. According to the Family Research Council marriage is “the work of heaven and every major religion and culture throughout world history.” Concerned Women for America proclaims marriage “a covenant established by God wherein one man and one woman, united for life, are licensed by the state for the purpose of founding and maintaining a family.” For Focus on the Family, “marriage is a sacred union, ordained by God to be a life-long, sexually exclusive relationship between one man and one woman.” Indeed because of this religious worldview, all three groups have made opposition to same-sex civil marriage a centerpiece of their political agenda.

 The Christian Right’s vision of heterosexual marriage directly relates to its understanding of gender difference, which it bases on its particular interpretation of the Bible. To justify male dominance, the Christian Right privileges the second version of the creation story in Genesis, in which God created Eve out of Adam’s rib to be his “helper” and declared that the man and his wife would become “one flesh” (Gen. 2: 18-24), rather than on the first story in which “God created man in his own image, in the image of God he created him; male and female he created them” (Gen. 1:26-27, emphasis added). Additionally, instead of reading the latter version as establishing gender equality at the origin, as some religious scholars do, the Christian Right interprets it to mean “God’s purpose for man was that there should be two sexes, male and female. Every person is either a ‘he’ or a ‘she.’ God did not divide mankind into three or four or five sexes.”[2] Right-wing Christians bolster their selective reading of the “Old Testament” with a few “New Testament” verses, such as woman is the “weaker vessel” (1 Peter 3:7), “man was not made from woman, but woman from man” (1 Cor. 11:8), “the head of a woman is her husband” (I Cor. 11:3), “wives be subject to your husbands, as to the Lord,” and “the husband is the head of the wife as Christ is the head of the church” (Eph. 5:22-23).

The Christian Right’s selectively literalist interpretation of the Bible not only emphasizes the natural authority of husbands over their wives but also condemns homosexuality as a particularly grave sin. This condemnation relies on just a few passages in the entire Bible. For example, they interpret God’s destruction of Sodom and Gomorrah (Gen. 18:16 – 19:29) as punishment for homosexuality. Yet religious scholars vigorously disagree about the meaning of that story. The dominant contemporary interpretation is that the city was destroyed for the sin of inhospitality – considered a “sacred obligation” in ancient times – not for homosexuality.

In addition, the Christian Right stresses the two sentences in Leviticus that proclaim “you shall not lie with a male as with a woman; it is an abomination” (Lev. 18:22) and “if a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death” (Lev. 20:13), completely ignoring the fact that the Ten Commandments does not prohibit homosexuality. At the same time, the Christian Right disregards the wide array of other practices prohibited in Leviticus, such as eating pork, touching a football made of pigskin (Lev. 11: 7-8), wearing cotton/poly blends (Lev. 19:19), and trimming the hair on the side of the face (Lev. 19: 27). “Ex-gay” Stephen Bennett stresses that Leviticus refers to male homosexuality as an “abomination” but fails to mention that it also refers to eating shellfish as an “abomination” (Lev. 11:10).

While the Right makes much of the English term “abomination,” the original Hebrew word to’evah comes from ‘to’eh ata ba which means “you go astray because of it.” Rebecca Alpert argues that the original meaning of the word implies that engaging in homosexual acts is not intrinsically evil but simply has negative consequences, which in ancient or medieval times might be not reproducing or abandoning your wife.

My point here is not to establish any one reading of the Bible as definitive, but rather to complicate the Christian Right’s claim that the meaning of Scripture is self-evident. Not all religious people agree that homosexuality is a sin or that same-sex couples should be denied the right to civil marriage. In fact, some religious denominations not only support civil marriage but also perform religious marriages or some comparable form of union for lesbian and gay couples – Reform and Reconstructionist Judaism, some Episcopal congregations, the Metropolitan Community Church, and the Unitarian Universalists, for example. Moreover, no consensus exists among religious folks, even when it comes to the definition and meaning of heterosexual marriage. For example, while Christianity restricts marriage to one man and one woman, Islam allows polygamy. While Catholics consider marriage a sacrament, Protestants do not.

Nevertheless, despite the diversity of beliefs and interpretations within a religiously pluralistic society such as the United States, the Federal Marriage Amendment, if passed, would impose one particular, religiously rooted definition of marriage on all the citizens of the United States, Christian or not. The Amendment directly violates the separation of church and state, and so it undermines the principles of liberal democracy upon which the U.S. was founded. In a liberal society, conservative Christian churches certainly have the religious liberty to define marriage for their parishioners in any way they see fit, however, the liberal democratic state cannot legitimately make one particular interpretation of revealed religion the law of the land.

Phony Populism on the Right

Right-wing opponents of gay marriage claim that they stand for the interests of ordinary people when they oppose legal equality for all. This rhetorical strategy worked well during the 1970s, when opponents of the ERA portrayed feminism as advancing the interests of elite career women at the expense of housewives and working-class women. In reality, however, according to a 1994 study by Sara Diamond, it was middle-class women who performed the daily activist tasks essential to the anti-ERA movement.

In fact, Lisa McGirr’s recent study of the origins of the New Right reveals its mass base to be comprised of, not the farmers and blue-collar working folks of George Wallace’s segregationist South, or even the lower-middle-class, white ethnics who became “Reagan democrats,” but rather the educated, affluent, upwardly mobile, white suburbanites, who reap material benefits from tax cuts and reduced government spending, from real estate development and the military-industrial complex, and from the traditional entitlements of white Christian America.

In its attack on same-sex marriage, the Right continues its pseudo-populist pose, claiming to speak for the interests of ordinary people who are supposedly being attacked by an elite “homosexual lobby.” As Chip Berlet and Matthew Lyons have argued, Christian Right propaganda frequently portrays gay men, like feminists, as a wealthy, privileged elite that wants to impose its immoral, self-serving agenda on American society. For example, a Family Research Council fundraiser says, “the Human Rights Campaign [HRC] and the other groups in the homosexual lobby have very deep pockets. Big corporations, elite foundations, and Hollywood celebrities underwrite the homosexual lobby with tens of millions of dollars every year.” Similarly, the Executive Director of the Traditional Values Coalition calls HRC “the wealthiest extremists of the left.” In reality, however, anti-gay groups outspend LGBTQ groups “by at least a four-to-one ratio.” Moreover, contrary to myth, gay men actually earn twenty to twenty-five percent less income than do heterosexual men. “Lesbians appear to earn about the same as heterosexual women, but lesbian couples earn less than straight couples because women, on average, earn less than men.” Finally, many state and local anti-gay marriage groups that promote themselves as “grassroots” are actually funded by wealthy national organizations.[3]

Does Same-Sex Marriage Really

Harm Men, Women, and Children?

While the Christian Right claims to speak for the good of society, it actually seeks to reconsolidate male dominance and reestablish the patriarchal family as the dominant family form in the United States, despite “extensive feminist analysis and empirical evidence” documenting the ways in which “gender role differentiation in families is connected to stratification in economic, political and social life” in a way that harms women.[4] Because no evidence exists that same-sex couples are less functional than heterosexual ones, or that their children are more likely to suffer negative effects, allowing same-sex couples to marry and have children would clearly undermine the myth that the patriarchal heterosexual family is the superior family form.

The conservative “fatherhood movement” blames feminism and single mothers for the social problems caused by men and teenaged boys. While the packaging of their arguments varies slightly, advocates generally make a similar claim: Refusing to respect natural gender differences, feminists have pathologized masculinity and futilely attempted to change the behavior of men and boys. They have undermined the rightful authority of men as the head of the household, attempted to change the natural division of labor between mothers and fathers, and propagated the idea that a woman can fulfill the role traditionally played by a man, thus rendering fathers superfluous to family life. Consequently, men have lost interest in fulfilling their traditional family responsibilities, and boys have no one to teach them how to become responsible men. Detached from the civilizing influence of the traditional patriarchal family, males increasingly cause a wide array of social problems, and everybody suffers.

Focus on the Family president James Dobson makes this argument from a Christian Right perspective. In Bringing Up Boys, he argues that traditional gender roles are natural and cannot be changed. He points to the continued power of men in society as evidence of their natural, “biochemical and anatomical,” dominance. Dobson strongly opposes attempts to change the gender socialization of children and explicitly links this “unisex” idea to “the powerful gay and lesbian agenda,” whose propagandists are teaching a revolutionary view of sexuality called ‘gender feminism,’ which insists that sex assignment is irrelevant. While Dobson sees this as dangerous for both sexes, it is particularly harmful for boys: “Protect the masculinity of your boys, who will be under increasing political pressure in years to come.”

Dobson believes that a breakdown of traditional gender roles within the family fosters homosexuality in children. The prevention of homosexuality among boys requires the involvement of a properly masculine heterosexual father, especially during the early years. Dobson relies on the work of Dr. Joseph Nicolosi, a leading proponent of the Christian Right’s “ex-gay” movement, who urges parents to monitor their children for signs of “prehomosexuality,” so professionals can step in before it is too late. While “feminine behavior in boyhood” is clearly a sign, so is “nonmasculinity” defined as not fitting in with male peers. “The father,” Nicolosi asserts, “plays an essential role in a boy’s normal development as a man. The truth is, Dad is more important than Mom.” In order to ensure heterosexuality, the father “needs to mirror and affirm his son’s maleness. He can play rough-and-tumble games with his son, in ways that are decidedly different from the games he would play with a little girl. He can help his son learn to throw and catch a ball. . . . . He can even take his son with him into the shower, where the boy cannot help but notice that Dad has a penis, just like his, only bigger.”

Based solely on the work of Nicolosi, Dobson concludes, “if you as a parent have an effeminate boy or a masculinized girl, I urge you to get a copy [of Nicolosi’s book] and then seek immediate professional help.” Beware, however, of “secular” mental health professionals who will most certainly “take the wrong approach – telling your child that he is homosexual and needs to accept that fact.” Instead, Dobson recommends a referral from either Exodus International, the leading organization of the ex-gay ministries, or the National Association for Research and Therapy of Homosexuality, founded to oppose the 1973 decision by the American Psychological Association to stop classifying homosexuality as an emotional or mental disorder.

While Dobson and the burgeoning “fatherhood movement” stress the harm the feminist and the LGBTQ movements have supposedly done to men and boys, the Right also insists that these movements for gender equality harm women as well. Concerned Women for America, which claims to be the largest women’s group in the country, blames feminism – in particular its support for legal equality, reproductive freedom, female sexual pleasure, and no-fault divorce – for eroding the “protections” supposedly provided women by traditional marriage and family law, making it easier for men to renounce their familial responsibilities, and causing the feminization of poverty. In their view the LGBTQ movement continues these allegedly destructive trends by further undermining traditional gender roles, advocating diverse family forms, and reinforcing the disconnection between sexual pleasure and reproduction.

Some on the Right insist that with the important role played by women in the traditional family already undermined by feminism, the specter of same-sex marriage threatens to render women completely useless. For example, William Mattox, a USA Today columnist and Alliance for Marriage supporter, argues that “in the same way that polygamy teaches that women are inferior to men, ‘gay marriage’ implicitly teaches that women are superfluous to men, that women make no unique and irreplaceable contribution to family life. Indeed, ‘gay marriage’ teaches that the most basic unit of human society – marriage – does not need a woman to be complete.”

Despite this interesting rhetorical strategy, however, same-sex marriage does not actually undermine the position of women. In fact, the majority of same-sex couples seeking marriage are women – 57 percent of same-sex couples who wed in San Francisco between February 12 and March 11, 2004, 71 percent of those who wed in Portland between March 3 and April 20, 2004, and 66 percent of first-day applicants in Massachusetts were women, as are two-thirds of Vermont civil unions. Since access to the civil benefits of marriage will help these women take care of each other and any dependent children they may have, gay marriage clearly helps rather than hurts the position of women by making it easier for them to survive outside the bounds of patriarchal marriage – which is exactly what that Right opposes.

The Christian Right wants to continue portraying lesbians and gay men as inordinately driven by sexual desire and so unable to form long-term relationships. The visibility of committed same-sex couples illustrates the ordinariness of most lesbian and gay people’s lives and demonstrates an alternative to the Christian Right’s rigid view of proper gender roles and narrow definition of what constitutes a family. Because of their particular theological beliefs, right-wing Christians insist that men and women are fundamentally different beings that come together to reproduce and must remain coupled in order to rear their children. Because homosexuality disconnects sex from reproduction, they reason, homosexual relationships must be fleeting, driven by sexual gratification alone. As CWA founder Beverly LaHaye puts it, “it is the compulsive desire for sexual gratification without lasting commitment, the high rate of promiscuity, and the self-defined morality among homosexuals that sap the vitality of the family structure, making it something less than it was, is, and should be.” Consequently, “homosexual relationships are not only the antithesis to family, but also threaten its very core.”

Clearly the desire of many same-sex couples to marry and to raise children demonstrates that lesbians and gay men are not primarily seeking hedonistic gratification. In fact, the first same-sex couple to receive a marriage license in San Francisco has been together for fifty years, whereas half of all heterosexual marriages end in divorce. Most lesbians and gay men want the same types of relationships that straight people do. In fact, an estimated “64 to 80 percent of lesbians and 46 to 60 percent of gay men report that they are in committed partner relationships,” and “studies show that gay and lesbian relationships are comparable to opposite-sex relationships in terms of quality of the relationship and satisfaction in the relationship.” Furthermore, according to 2000 census data, “lesbian couples . . . parent at about three quarters of the rate of married straight couples, and gay male couples parent at about half the rate as married straight couples” – and this only includes couples with at least one child living with them.[5] Nevertheless, despite empirical evidence, Christian Right groups purposely disseminate misinformation in an attempt to bolster their political agenda of marginalizing lesbians and gay men and reconsolidating the tradition of male dominance.
 

Conclusion

In their fight against legal equality for lesbians and gay men, the Christian Right appeals to the religious assumptions, historical customs, social anxieties and unexamined prejudices of many Americans, yet their overarching agenda actually undermines American democracy’s most precious political principles, including the separation of Church and State, legal equality and personal liberty. While liberal democracy has its limitations, its virtue is that it maximizes the freedom of all by allowing individuals to organize their personal lives as they see fit. While the government may respond to the will of its citizens by providing a default set of legal entanglements that make it easier for individuals to establish families (i.e., civil marriage), it may not legitimately deny equal protection of the laws to unpopular minorities or enshrine a particular religious definition of marriage as the law of the land. Consequently, the State should ensure equal access to civil marriage and leave religious marriage where it belongs – in the synagogues, churches, and mosques.
 

Notes