marriage-raceA mixed race couple demonstrating for gay marriage hold up a sign saying, “Once our marriage was once illegal too.”

Is that a just comparison? Is opposition to same-sex marriage at all like opposition to inter-racial marriage? Does protecting the freedom to speak and act publicly on the basis of a religious belief that marriage is the union of a man and woman amount to the kind of laws that banned inter-racial marriage?

No, and no, says Ryan Anderson, a US expert on the marriage issue, in a background paper published by the Heritage Foundation. First, because the belief that marriage is a man-woman union is a reasonable belief, and second, because when they lead their lives and run their businesses in accordance with that belief, citizens deny no-one equality before the law. 

A reasonable belief…

Great thinkers throughout human history—and from every political community up until the year 2000—thought it reasonable to view marriage as the union of male and female, husband and wife, mother and father. Indeed, support for marriage as the union of man and woman has been a near human universal.

This view is based on human nature and what marriage is for:

The conclusion that marriage is the union of man and woman follows from a proper understanding of human nature. Rightly understood, marriage is a comprehensive union. It unites spouses at all levels of their being: hearts, minds, and bodies, where man and woman form a two-in-one-flesh union. It is based on the anthropological truth that men and women are distinct and complementary, on the bio­logical fact that reproduction requires a man and a woman, and on the sociological reality that children benefit from having a mother and a father.4

Historically, even where homosexuality was accepted the idea of same-sex marriage did not arise:

Far from having been devised as a pretext for excluding same-sex relationships—as some now charge—marriage as the union of husband and wife arose in many places over several centuries entirely independent of and well before any debates about same-sex relationships. Indeed, it arose in cultures that had no concept of sexual orientation and in some that fully accepted homoeroticism and even took it for granted.

The idea that different races should not marry came late in history and arises from prejudice, not reason:

Searching the writings of Plato and Aristotle, Augustine and Aquinas, Maimonides and Al-Farabi, Luther and Calvin, Locke and Kant, Gandhi and Martin Luther King Jr., one finds that the sexual union of male and female goes to the heart of their reflections on marriage but that considerations of race with respect to marriage never appear. Only late in human history does one see political communities prohibiting intermarriage on the basis of race. Bans on interracial marriage had nothing to do with the nature of marriage and everything to do with denying dignity and equality before the law.

These laws were virtually unique to America and were driven by the view that black slaves were neither citizens nor persons. The laws had nothing to do with the nature of marriage, but were based on errors about the human nature and dignity of black persons.

Laws that define marriage as the union of one man and one woman are not unjust, like the laws that prevented inter-racial marriage. To decide whether a marriage law is just or unjust you have to know what marriage is:

Marriage must be color-blind, but it cannot be gender-blind. The melanin content of two people’s skin has nothing to do with their capacity to unite in the bond of marriage as a comprehensive union naturally ordered to procreation. The sexual difference between a man and a woman, however, is central to what marriage is. Men and women regardless of their race can unite in marriage, and children regardless of their race deserve moms and dads. To acknowledge such facts requires an understanding of what, at an essential level, makes a marriage.

Anderson cites key US court cases striking down inter-racial marriage bans – and in the process shedding light on the essential gendered nature of marriage. The Catholic Church and other religious groups played prominent parts in the ending of racial discrimination in marriage – so it is not from a history of prejudice that many religious people now claim the right to speak and act publicly on the basis of a belief that marriage is the union of a man and a woman.

…that ought to be protected

But isn’t refusing to take photos of a same sex wedding or providing catering for such an event now, just the same as refusing to let Negros into your restaurant in the 1950s? No it is not. That is because racism is unreasonable and an historical and geographical aberration, while the belief that marriage is between a man and woman only is a reasonable belief based on all of human history up until the year 2000.

Furthermore, refusing to provide services for a same-sex wedding is not an act of discrimination against any individual or their sexual preferences; it is a refusal to endorse an action that one believes is a lie. In other circumstances the baker or florist would be happy to serve the individuals involved. Besides, there are plenty of businesses willing to facilitate same-sex weddings and the market can easily take care of the demand.

Yet in a growing number of cases, government coercion and penalties have violated religious free­dom with respect to marriage. Family businesses— especially photographers, bakers, florists, and oth­ers involved in the wedding industry—have been hauled into court because they declined to facilitate or participate in a same-sex ceremony in violation of their religious beliefs.

It is time, says Anderson, to stop this trend by legislation:

Legislators should enact commonsense religious liberty protections that would prevent the imposition of substantial burdens on sincere religious beliefs unless the government proves that imposing such a burden is necessary to advance a compelling government interest (and does so by the least intrusive or restrictive means).

He quotes law professor and religious liberty expert Douglas Laycock—a same-sex marriage supporter: “I know of no American religious group that teaches discrimination against gays as such, and few judges would be persuaded of the sincerity of such a claim. The religious liberty issue with respect to gays and lesbians is about directly facilitating the marriage, as with wedding services and marital counseling.”

Thus, when it comes to flower arrangements and wedding photographers, what is the compelling state interest? How is forcing every photographer to take same-sex wedding photos the least restrictive way of serving that interest, whatever it may be? Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss. Competitive markets can best harmonize a range of values that citizens hold without government interference.

It’s all about living in a free society, Anderson concludes: “Protecting religious liberty and the rights of conscience does not restrict anyone’s freedom to enter into whatever romantic partnerships he or she wishes.”

Read the whole paper at: http://report.heritage.org/bg2894

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet