Sweet reason and pouring oil on troubles waters: making sense of the SSM debate(s)

After several years of point and counter-point in the exalted comments section of Rod Dreher's blog at The American Conservative, probably the most diverse comment section on the web, it seems time to distil a coherent summary of what I actually believe to be true about homosexuality, discrimination, the Constitution of the United States of America, marriage, and other tangentially related stuff.

Clearly, I don't take this debate as seriously as some people do. Its a thing, but its not an essential thing. What any person is entitled to is what Justice Louis Brandeis called "the right to be left alone." That is not a right of gays and lesbians, or of Christians, or of any demographic sub-category, however you want to slice the pie of humanity. It is a right that adheres to each individual, and therefore to individual choices of activity shared with consenting adults. Within that universal right, there is room for people with same-sex attraction to act accordingly without the police barging in, and rightly so.

As a heterodox Christian, I also think that columnist James Watkins is probably correct in surmising that the marriage of a male and a female reunites the image of God, and the union of two men, or two women, or for that matter, one man and more than one woman, or one woman and more than one man, simply does not. Is this important to the civil law? Not particularly, but its a perfectly valid religious precept. It is civilly binding on nobody, but it may be true.

Anecdotal evidence is of limited use in proving a hypothesis to be true, but it can be quite sufficient to disprove a hypothesis. For example: "Homosexuality is a choice." One person who can credibly recount that they felt "gay" from an early age, from the onset of puberty, or in pre-pubescent ways even before puberty, disproves the hypotheses. Anecdotal evidence can disprove the scope asserted by the word "all." Likewise, the assertion that ALL homosexuality is inborn, genetic, fundamental to a person's being, can be disproved by one credible anecdote of a person who became homosexual in orientation at a later point in life, or due to some traumatic experience, not to mention those who have gone back and forth, or have been actively gay for many years, then found that when motivated to do so, for whatever reason, they were able to revert to stable, comfortable, fulfilled, heterosexuality.

So there is no reason to believe anyone who makes any universal statement characterizing exactly what homosexuality IS. We don't really know, and those who wave the banner of "science" from any point of view have always turned out to have a predisposition, something they earnestly wanted to prove. Presto! Those who denounce homosexuality publish papers "proving" their prejudice, and those who extoll it as healthy and normative publish papers which "prove" their prejudice with equal fervor, and equal credibility.

So, civilly speaking, is there any sound constitutional or legal reason to discriminate against individuals who are, or say they are, or may be, or seem to act as if they are, gay? Not much. If someone tried to enforce the equal employment opportunity right of a gay man to be employed as a prostitute at a legal brothel in Nevada, the management would have a sound case to object that this is NOT what customers are paying for. (Unless there were SEGREGATED brothels catering to different orientations... which there may well be, I haven't been looking into it.) But that is an outlier. It is one of the few cases where precisely the way a gay individual is DIFFERENT is highly relevant.

There was a cute post card some twenty years ago sarcastically debunking the notion of "The Gay Lifestyle." It had humorous references to "Watch them as they shop for the week's groceries, wash their car on Saturday, mow the lawn, get up and go to work Monday morning... Good points all. Whatever it is that makes "gay people" different from "the rest of us," in all these respects and most others, they do the same things the same way. So no, there is no basis for discrimination. The fact that "I don't like homos" is irrelevant as a matter of law, and commerce, in particular, is subject to legal regulation. The fact that someone is gay, or may be gay, is irrelevant. The point is, everyone is entitled to participate in civic life and commerce without inquiry or consideration of whether they are or aren't.

Does that mean that churches may not discriminate against gay people? Actually, a church, or any religious body, can exclude anyone they want to, for being gay, or Catholic, or Protestant, or having red hair, or wearing pants, or eating pork, for any reason or no reason, rational or irrational. That's fundamental to the First Amendment. For the federal or state government to intervene in what a church may or may not accept or reject would be both an Establishment of Religion, and an infringement of the Free Exercise thereof.

Further, the First Amendment has been expounded for close to 150 years to protect churches from any judicial review into matters of faith and doctrine. It simply is none of the government's business to even inquire, much less to declare, what a church does believe, or may believe, or shall believe, or teach. Most of that jurisprudence was neatly summarized by the Tenth Circuit court of appeals a few years ago.

Thus, there is NO basis whatsoever in our constitutional framework to impose any restriction on a religious body (church, mosque, synagogue, ashram, temple, etc.) teaching, e.g., that homosexual acts are sinful, contrary to the will of God, harmful to a human being's immortal soul, or whatever. They can preach it, teach it, proclaim it, and endeavor by patient witness to win others to accept and practice what the church teaches. Nobody has to accept it, or even listen to it.

So then we come to the rather more specific debate about same-sex couples marrying. Perhaps the most concise argument in favor is "I see an expression of the same longing for the connection that redeems an animal instinct into a living out of love and commitment." (One John Spragge contributed that to Dreher's blog). On its face, that's beautiful, and very convincing. It is true, sexuality is a set of hormonal animal instincts, and human cultural institutions have tried to encase it in meaning. In human history, that has included love and devotion, it has also included arranging diplomatic alliances, forging business alliances, etc.

But there is a significant difference between the right to be left alone, to work out the intimate details of your own life, to participate fully in civic responsibilities, on the one hand, and a claim to the honor, applause, acclaim, approbation, of the entire community, on the other.

The claim that "equal protection of the laws" constitutionally MANDATES that a state issue marriage licenses to same-sex couples rests on many flawed assumptions. One can frame the debate "Shall the state deny gay people the right to marry?" One can equally well frame the debate "Does the bond that unites a same-sex couple constitute a marriage?" Since either question is equally valid, the claim of constitutional mandate is shaky.

The basic problem is, the union of a man and a woman is not similarly situated to the union of two men, which incidentally is not even similarly situated to the union of two women. These are three different things, which the law may perfectly well treat differently, without running afoul of the Fourteenth Amendment.

There has been a lot of grammatically logical but rationally ridiculous reference to the 1967 Supreme Court case, Loving v. Virginia, which rendered all state laws against inter-racial marriage null and void. Well, the facile assertion goes, if the state may not discriminate on the basis of race, the the state also may not discriminate on the basis of sex! Well, look at all the reasons a few paragraphs up that affirm that discrimination against people because they are (or may be, or are thought to be) gay... Unlike shopping at the grocery store, or preparing a blueprint, or owning a home, or renting a home, or driving a car, or a myriad of other features of daily life... sex IS of the essence of MARRIAGE. It is highly relevant, and to consider it is not in the least invidious.

The plaintiffs in Loving were married.  That was the crime they were prosecuted for. The State of Virginia knew darn well that a man of any color and a woman of any color could constitute a marriage. The state wanted to sort out which men could marry which women, for reasons that had nothing to do with what a marriage IS. As Justice Potter Stewart said in his concurrence, no law that makes an act a crime, or not, depending on the color of the actor, can withstand constitutional scrutiny. Two men, or two women, are not being discriminated against, they simply don't constitute a marriage, as the law currently defines it.

Now, just because there is no constitutional right to obtain a marriage license for your particular affection, whatever that might be, does not prevent any state from legislating that marriage licenses shall be issued to same sex couples. New York state has legislated exactly that. If a majority of the legislature can vote for that, and expect to be re-elected, then that means a majority of the citizens of the state are OK with it -- maybe not firmly committed, but not particularly opposed. So be it. Incidentally, an argument that it would be sound public policy to license same sex couples and call it a marriage does NOT set a precedent that it would be sound public policy to license polygamy or child brides, etc. That paranoia can be dispensed with, if the decision is a discretionary act of the legislature. But such fears are reasonably well founded if the courts find a "right to marry" whatever one sets one's affections upon.

From a religious, or cosmic, or teleological point of view, such laws may well create a legal fiction, but there are many legal fictions on the statute books, and for all legal, civic, earthly purposes, they are perfectly serviceable.

As we get beyond the urges that motivate some people to discriminate against gays, we also have to move beyond "Gay Pride." There is nothing in particular to be proud of. After all, it is simply the way some people are born, right? Nothing earned, nothing chosen, nothing pursued. Its just a condition. It is, actually, in an objective biological sense, a deviation from the norm. Yes, humanity is heteronormative. Deal with it.

Sexuality exists for one reason only: without powerful sexual hormones, nothing more complex than a sponge would go through the difficult gymnastics necessary to produce another generation of any species. Thus, sexuality itself is by nature and origin heterosexual. Homosexuality is a by-product, an outlier, a product of the imprecision of complex biochemistry. That there will be outliers to any biochemistry is almost inevitable.

For those born gay, a life with a fixed affection for individuals of their own sex is the only life they will ever have to live. There is no reason whatsoever for the overwhelming heterosexual majority to go out of our way to make life difficult for them. There are some who respond to religious teachings by choosing to live a celibate life. There are others who do not. Either one is civilly valid. What God will say about it is between each individual and God.

Personally, I rather doubt that God is all that bent out of shape. No doubt God knew that the imperfect process of biochemistry would generate some statistical outliers. A same-sex couple may lack some of the teleological significance that each and every heterosexual couple potentially has, but it may be quite fulfilling to the individuals engaged, nevertheless. Not everyone will agree, and there is no reason they should. Some firmly believe that yielding to homosexual impulses, however deeply embedded in one's being, is morally wrong. They have a right to say so, and everyone else has a right to pay attention, or to ignore them.

Here we come to one of the harder nuggets to digest. What about the photographer who refuses to take the pictures for a same-sex commitment ceremony? What about the baker who refuses to make the wedding cake for two men, or two women? Isn't that bigotry? Well, no, its not.

There is no sound case for "freedom of religion" as a defence against non-discrimination in such a commercial transaction. Nothing in the First Amendment exempts any person from complying with a neutral law of general application, just because "its against my religion to do that." In fact, if a customer buys a cake off the shelf, it is none of the baker's business what the customer plans to do with it. BUT, there is ample precedent that the machinery of the law may not be used to compel participation in an expressive message. The state, including the courts, and various civil rights or human rights commissions, may not compel speech.

Thus, if a customer asks a baker to ice the cake with "Adam and Steve, together forever in wedded bliss," the baker may lawfully and constitutionally refuse. This is no different from a Democratic silk screen artist refusing to make t-shirts for a Tea Party rally.  It is no different from a K street lobbyist telling a prospective client, "I can't take your job -- I abhor everything you want to lobby for."

And the photographer? That is an intimate involvement in memorializing, celebrating, recording in the best possible light, "the happiest day of our lives." You can't compel a person to do that if they find the whole thing abhorrent, no matter how rational or irrational their beliefs may be, or may be construed to be. And why in the world would anyone want such a person to be their wedding photographer anyway?

There is an excellent Supreme Court precedent on this subject, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of South Boston. Essentially, the court ruled that to force the organizers of a parade to include an expressive message they did not want to include, violates the First Amendment. The state may not use a non-discrimination in public accommodations law like that. Incidentally, I have always held that the IAGLVGSB should simply have reorganized as the Sir Roger Casement Memorial Marching Band, and joined the parade playing "Banna Strand." Who could have turned them down?

Then there is the matter of adoption. It is entirely plausible that, all other things being equal, the psychologically and socially most healthy and nurturing family unit for any child, male or female, is a stable, married heterosexual couple, precisely the pattern that can actually conceive a child. There could be quite a number of very subtle factors which would be very difficult to "prove" scientifically or, worse, by the blunt instrument of a judicial code of evidence.

However, other things are not always equal. There can be little doubt that many children would have a much healthier upbringing from a stable, devoted, perhaps even married, same-sex couple, as compared with a married, alcoholic, abusive, heterosexual married couple, one or both of whom might also be pedophiles. It is also true that many children would be far better off adopted by a stable nurturing gay couple than bouncing around the foster care system for two years or ten, waiting for the perfect married heterosexual couple to appear.

It would be best not to set terribly rigid standards favoring exclusively heterosexual couples, or insisting on equal option for same sex couples, and to let a hundred school compete in the field of adoption. State standards for adoption agencies can provide a useful floor, but should not enclose the possibilities in a straight-jacket.

The truth is, bandying about terms like "segregation" and "discrimination"  and "equality" as universal bads or goods is destructively imprecise. We segregate public bathrooms and shower rooms by sex, not because one sex is inferior and unworthy to be in the presence of the other, but because 99.9 percent of each sex prefers privacy and a sort of limited modesty in such situations. Many women would like this to be separate and UNequal in a sense, and that may be a valid claim.

As to the claims of the "transgender" population, I have little sympathy. Again, public restrooms are not segregated to affirm "gender identity." They are segregated to insure a modicum of privacy and modesty. In your heart, you may know you are a woman, but when the ladies see your dick, they sure feel like you are a man. No, you may not use the women's shower room. Come back and talk about it if you choose to have an operation, after the operation is complete. Individual unisex facilities, which can be used by those who feel uncomfortable in a more public group setting, are all the reasonable accommodation anyone has a right to expect from their fellow men and women. There should be no questions asked about WHY any given individual chooses to use them.

But there is no reason a legislature should not provide for or reasonably accommodate a measure that would comfort and reassure even a small fraction of the civilian population, and it seems likely that in the absence of any ill considered judicial mandate, the will of a majority of voters will make it happen in the reasonably near future. Will this be an enduring change or a passing fad? Only time will tell.