Wednesday, March 19, 2014

Why the legal case for gay civil marriage is also a moral one

Recently I saw this YouTube of Kentucky Attorney General Jack Conway, a devout Catholic, announcing tearfully to his constituents why he is not going to defend Kentucky's ban on recognizing same-sex marriages from other states. As I saw this man's struggle of conscience it occurred to me that the legal arguments for civil same-sex marriage, which Conway clearly anguished over, aren't understood all that clearly by the average Christian who opposes gay marriage on religious/moral grounds.

For years now I've given my fellow Christians a pass if they bristled at the mention of gay civil marriage. "Look," I'd tell them, "you don't have to agree with my political views," then I'd try to discuss something about gay issues that was a little less advanced. But how long can evangelicals insist that they oppose gay civil marriage on moral grounds when they fail to see that there are also moral grounds for supporting it?

Many Christians have an underlying suspicion that people who focus on the constitutional arguments for same-sex civil marriage are doing so because they don't have biblical morals. Civil liberties is just a secular morality, a substitute ethic that has blinded the secular person from seeing the truth of the Bible's teaching.

There may be something to that. But what's damaging to our Christian witness is that the reverse is also true. Fixating on the Bible's moral teaching on gay sex blinds many evangelicals from seeing that the case for gay civil marriage is more justified, both legally and morally, than they think. It isn't about those who care about morals versus those who don't. In fact, the reason secular people are quicker to catch on to the civil liberties argument is that they don't have a religious prejudice against understanding it. As a Bible-believing Christian myself I hate to say it, but I think it's true.

Attorney General Jack Conway stated, "I came to the inescapable conclusion that if I [defended this case], I would be defending discrimination. That I will not do." As a Catholic he is not unaware of the moral teaching of his church on homosexuality, but as attorney general he knows he would betray the public trust in his office if he supported legal discrimination against gays. For Conway opposing discrimination is also a moral stance, and one that evangelical Christians would do well to understand better.

I'm not a law expert by any means, so I will explain my own lay understanding of the legal case for gay marriage in the best way I can:
  • We have something called the Fourteenth Amendment in our U.S. Constitution. It states the following:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
  • The part I italicized contains what's called the Due Process and Equal Protection Clauses. Due process protects individuals against arbitrary government intrusion into life, liberty or property. It has to do with interfering with a fundamental right. Equal protection has to do with treating all citizens equally under the law. 
  • If a law either 1) interferes with someone's fundamental right (Due Process), or 2) denies Equal Protection to a group of people who fall under a "suspect classification" (more on that later), then such a law can only be justified if passes the standard of "strict scrutiny."
  • "Strict scrutiny" is the highest standard of judicial review (as opposed to the lesser standards of "rational basis review" and "intermediate scrutiny"). Strict scrutiny means you have to demonstrate that this law serves a "compelling government interest" (e.g., our national security is at stake, multiple lives are in danger . . . that level of urgency). Plus, it must be "narrowly tailored" to achieve that government interest using the "least restrictive means." Discrimination is serious business, so if the law in question isn't directly on target to achieve this compelling interest, or if it is in any way overly restrictive, then it doesn't pass strict scrutiny. It gets the eject button.
  • There are two possible grounds for arguing that laws prohibiting gay marriage should be subject to the highest standard of strict scrutiny: 1) they interfere with a fundamental right to marry the person of one's choice, contra Due Process, 2) they discriminate against gays and lesbians because of their sexual orientation, contra Equal Protection. 
  • Re. ground #1: In the Loving v. Virginia decision which struck down laws against interracial marriage, Chief Justice Earl Warren wrote "marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Denying gays and lesbians the right to marry the person of their choice is denying them a fundamental right. 
  • Re. ground #2: If gays and lesbians are denied the right to marry because their choice of partner is dictated by their sexual orientation, then they are being discriminated against because of their sexual orientation. Now, remember I mentioned earlier something called "suspect classification"? This refers to a classification of groups of people that meets certain criteria making them susceptible to discrimination. The Supreme Court currently recognizes race, national origin, religion and alienage (being a foreigner) as suspect classifications. Whenever a law targets a suspect class, the courts subject it to strict scrutiny to determine whether it violates Equal Protection. Right now, sexual orientation is not considered a suspect classification. 
  • However, in the recent Proposition 8 case Judge Vaughn Walker argued that sexual orientation should be a suspect classification because as a group, gay and lesbian people fit the criteria: 1) they have a history of being discriminated against, partly due to stereotypes, 2) they have an immutable and/or highly visible distinguishing trait, 3) they are powerless to protect themselves in the political process, 4) their distinguishing trait does not prevent the group from contributing meaningfully to society.
  • It turned out Judge Walker did not need to make the case for sexual orientation as a suspect classification (requiring strict scrutiny) because he determined that Proposition 8 did not even pass "rational basis review." What's that? Well, if strict scrutiny is the highest standard of judicial review, rational basis review is the lowest standard. It demands only the barest rational justification for the unequal treatment of one group of people over another (e.g., 18-year-olds are allowed to drive but 12-year-olds aren't). The judge apparently thought Proposition 8 was so discriminatory it couldn't even clear the lowest hurdle of review.
  • Some say that sexual orientation is currently being treated as a "quasi" suspect classification where an intermediate standard of review is being applied. Whatever the case, it's clear that whichever standard of review ends up being used, at minimum you have to come up with a rational reason for treating gay and lesbian people differently than everyone else. You have to show that their sexual orientation makes them psychologically unstable, less capable of contributing to society, morally inferior, a danger to others, or something of that nature, and you have to provide evidence that this is true of them as a class. There are simply fewer and fewer psychiatrists, sociologists and historians who are willing to stand up in court and testify as an objective fact that gay people are inferior to straights across the board.
So here's the takeaway. "Discrimination" in the legal sense shouldn't be taken as a word people are using just to sound off about their feelings or suspicions or political leanings. Laws that target specific classes of people for unequal treatment must be examined with the greatest of care, otherwise we are in danger of discrimination. We are in danger of legalizing the treatment of certain types of people as inferior human beings.

When Attorney General Jack Conway said, "I came to the inescapable conclusion that if I [defended this case], I would be defending discrimination. That I will not do," he wasn't capitulating to secular values but standing for his Christian beliefs. Opposing discrimination is very much a Christian moral issue because our Constitution, in its own methodical, pedantic way, upholds the principle that all human beings should be treated with dignity as creatures made in God's image.

We think we are being a good Christian testimony when we take a moral stand against same-sex civil marriage. But it may be that the message we are really sending to outsiders is that we think gay and lesbian people are less deserving of legal protection, fairness, dignity and respect than everyone else. If that's not how we want to be understood, then like the attorney general we should start concerning ourselves with the more fundamental moral issue of opposing discrimination, and leave the moral question of gay sex to the 5% of our society's population for whom it is personally and directly relevant.