Due to the recent resurgence of an age old heresy which suggests that while the Catholic Church does not have to recognize same-sex marriages, its adherents cannot advocate against the state doing so, I think it timely to address it and the arguments supporting civil gay marriage.
The argument made essentially draws a distinction between “religious marriage” and “civil marriage,” and argues that the Catholic Church has jurisdiction over the former (so long as it is a marriage in the Church being sought. I assume it is not being argued that the Church has rights over protestant or non-Christian religious marriages.) and not the latter, which are under the jurisdiction of the State. With the state and the Church being legally separated in the United States, it is argued that the Catholic Church’s recent activism against civil gay marriage constitutes a step outside of the jurisdiction afforded to it by law and/or social convention. Thus, the following argument is made, “The Church has the right to deny gay marriage in its own churches, but if two people of the same-sex want to marry each other, and the state is willing to marry them, the Church has no right to prevent them, and in fact, in doing so, would be violating the rights of the couple.”
Now, there are several counter-claims that can be made without addressing the central claim of the argument that would appear to invalidate it. For example: Is it not hypocritical in one way or another to claim that same-sex couples have a right to marriage, but allow the Church to deny or violate it within their parishes? Are you truly advocating for a human right if you’re claiming that the government can’t violate it but private groups can? Could it be claimed that the state has no authority to marry? Do same-sex couples have the legal right to civil marriage or simply the benefits given to heterosexual married couples, ex. Tax breaks and visiting rights that could be granted to them without granting them a “civil marriage”? I believe arguments could be made condemning civil gay marriage simply mining the veins of these questions, but this essay does not attempt to do that. Instead, it will endeavor that civil gay marriage arguments fail on three grounds: 1) There is no “right to civil gay marriage” and therefore it is not violating a right to deny it to a same sex couple. 2) Civil gay marriage is fundamentally opposed to civil marriage in that promoting it contradicts the purpose of promoting civil marriage, and therefore, civil gay marriage is not comparable to civil marriage. 3) Opposing and legislating against civil gay marriage does not constitute a violation of the free exercise or the establishment clause.
In this essay, marriage will be referred to a romantic union between a man and a woman, and gay marriage would be used to refer to a romantic union between two men or two women. Civil marriage will be used to refer to a marriage certified by the state, and civil gay marriage will be used to refer to a gay marriage certified by the state.
Support for this essay is found in the Constitution and the Declaration of Independence of the United States, Supreme Court opinions related to this discussion, and in the social justice teachings of the Catholic Church, which have consistently opposed same-sex marriage. The fact that I use sources which come from a religious background should not encourage skeptical readers to discount my arguments as merely religious appeal, for I could make the same arguments on a secular level without referencing these documents. I choose to reference them in order to show how these fundamental documents in the history of humanity, which have influenced social, economic, and political thought, recognized the veracity of the statements that will be made in this essay so that I can show the continuity my arguments have with the American and the human moral tradition.
THERE IS NO RIGHT TO CIVIL GAY MARRIAGE
The underlying assumption of the gay marriage argument is that because there exists civil marriage, there must exist a right to civil marriage, and if there exists a right to civil marriage, there must exist a right to civil gay marriage. It is this assumption that deserves questioning. First of all, I think most people would agree that just because the government provides something to its citizens does not mean those citizens have a right to it. If for example, a government were to provide a free car to all citizens upon their 16th birthday, we may colloquially speak about a “right” to a car in such a society, but philosophically speaking, we would not claim that the government’s decision granted human beings with an intrinsic right to an automobile. The reason is that we recognize that the government cannot grant rights; rights are self-evident, intrinsic to the human person, fundamental and inalienable., If we were to believe that the government could grant rights, then we must also believe that the government can take rights away, in which case, human rights would not be inalienable. Therefore, human rights are intrinsic to the human person and the government cannot grant them but merely recognize them. Therefore, just because civil marriage exists does not mean that there exists a right to civil marriage, and therefore, there is no compelling reason to believe in a right to civil gay marriage simply because civil marriage exists. It should be noted that this does not question whether the state has the authority to certify or recognize marriages, but challenges the idea that the state does so because there is a human right to a civil marriage.
Others would claim that a right to civil marriage (and therefore to civil gay marriage) exists because a right to marriage exists., This of course is decidedly false; having a right to marry does not mean the government is required to marry anyone, anymore than having a right to bear arms means that the government must provide guns to anyone wishing to act upon those rights. The fact that man has a right to marriage simply means that the government cannot prevent people from marrying. For example, the government cannot prevent churches from celebrating marriages and the government cannot prevent people from professing their love to each other, living together, and raising a family together, but the government certainly isn’t required to give any governmental recognition to any such union, heterosexual or homosexual. Therefore, there is no right to civil marriage or civil gay marriage, and therefore denying it, does not violate any right.
CIVIL GAY MARRIAGE IS FUNDAMENTALLY OPPOSED TO CIVIL MARRIAGE
There are some who would agree with the points made above, but continue to support the cause of civil gay marriage, arguing that whether or not there is a right to civil marriage or civil gay marriage, the government provides civil marriage and thus, to be fair and equal, the government must also provide civil gay marriages. The logic of this claim is already strained simply by realizing that the government can and has given benefits to one person or group and not another, and this is generally considered progressive, not regressive. Consider for example means tested social aid programs which only give social aid to those who need it, or consider affirmative action policies which are based on the idea that one group needs more assistance than another. Therefore, if the government can give something to one person or group and not another, then the government can provide civil marriages without being morally constricted to provide civil gay marriages.
It becomes even more strained when we consider the policy aims for why the government provides civil marriages, and realize that civil gay marriages are not equivalent but rather contrary to the aims of civil marriages. Government policies are meant to serve the common good. Therefore, the decision to offer civil marriage must be understood through the policy aims it has with reference to the common good. Now, the government has an interest in promoting marriage through civil marriage for one reason: to strengthen by policy the natural connection between procreation and child rearing. (NB: This does not mean this is the only purpose for marriage, but it is the purpose for which government encourages marriage through civil marriage.) Procreation and child rearing are important to the state because the state depends on them for future generations of people performing tasks necessary for the survival of the state. It is important that the two are seen as interdependent because this will lead to the creation of strong families based around the two-parent model, which has been shown to be the best family structure to promote the success of future generations, by assuring that a greater percentage of children will be raised by the parents that conceived them. It is for this reason that the government promotes the civil marriage and not civil gay marriage because promoting civil gay marriage would be a public policy that would conflict with the policy aim of promoting marriage as the link between procreation and child rearing for the simple reason that procreation is not inherent to the biology of a same-sex couple as it is to one of an opposite sex couple. Therefore, it would be contradicting the purpose of civil marriage to promote civil gay marriage, even if appearances would suggest that debates over civil gay marriage center on the issue of “equality.”
To understand this further, consider a government policy that would reward drivers for driving environmentally friendly vehicles to encourage environmentally driving habits. It would be wrong for a hypothetical lobby, perhaps named, “Hummer and Other Gas Guzzlers Society (HOGGS),” to claim discrimination because they are not being rewarded for driving their cars. They could claim “cars are cars, gas guzzler or environmentally friendly they both are forms of transportation and the government should not discriminate between owners of one car and owners of another” just like civil gay marriage activists claim “love is love” as if there is no distinction between a heterosexual and homosexual union. But the fact is that if the government were to give in to the demands of this “HOGGS” lobby, it would be contradicting the original goal of the policy, just as promoting civil gay marriage would be contradicting the original goal of promoting civil marriage.
Now, there are some who would argue that technological advances have allowed and will continue to allow same-sex couples to artificially conceive children, and therefore, they are fundamentally identical to heterosexual couples. But this overlooks a very important difference: a man and a woman are in themselves sufficient to procreate, while a same-sex couple will always have to rely on someone or something else to procreate. In this sense, it shows the insufficiency of the couple on their own to procreate, and how they are required to bring in a third party to do it for them. This bringing in of a third party in order to achieve that which a heterosexual couple can do independently within the realm of procreation with which marriage as a concept is so intertwined contains implications of polygamy, by bringing in something which is extraneous to the couple into the procreative union. Therefore, a same-sex couple, even with this technology would still be fundamentally different from a heterosexual couple. It furthermore seems to be quite a fantastic claim to think that a same-sex couple would be able to function in the same manner as an opposite sex couple with relation to child rearing, because this treats men and women as interchangeable when in reality they both bring different strengths and mindsets to table with differently nuanced relationships with their children and both are very important to a child’s development. In treating the sexes of the parents as interchangeable, civil gay marriage proponents simply deny the reality of sex differences between males and females and how they affect parenthood and their children. Only by affirming the complementary strengths of male and female in child rearing, through the protection of civil marriage, which includes preventing civil gay marriage which claims to testify against this complementary relationship, can we truly build families which are capable of creating and preparing the future generation for citizenship. Therefore, the government should not create civil gay marriage.
AGAINST CLAIMS OF RELIGIOUS DISCRIMINATION
One of the strategies of civil gay marriage activists is to decry the lack of civil gay marriage as a violation of the separation of Church and state. Some claim that by not providing civil gay marriage, the state is promoting the ideals of one or more religions, which would be a violation of the establishment clause, while others argue that by preventing individuals from receiving civil gay marriage, the state is preventing them from acting on their own beliefs, and this would be a violation of the free exercise clause. Further examination, however, reveals that neither of these claims are accurate, for they assume that endorsement of a tenet of a religion means endorsing it because it is part of that religion, and that the government cannot prevent someone from committing an act the individual deems acceptable, both of which are incorrect.
The establishment clause claims that the United States government cannot endorse or “establish” a religion as the state religion. Using this principle, civil gay marriage activists claim that civil gay marriage must be legalized, because doing otherwise would be endorsing or “establishing” the Catholic faith as the state religion because Catholicism prohibits gay marriage. The problem with this logic is that it assumes that the government cannot prohibit something prohibited by a religion, when the establishment clause simply means that the government cannot prohibit something because it is prohibited by a religion. Because one does not have to be a member of a certain religion to oppose gay marriage, and there are reasons to want to limit civil marriage to opposite-sex couples, that are not limited to any one creed, it can hardly be claimed that prohibiting marriage is an “establishment” of Catholicism. Furthermore, following the argument that any condemnation that exists both in Catholicism and in the state represents an establishment of Catholicism as the state religion, then laws against murder, stealing, and other laws necessary for the common good of the people should be abolished as they all would represent an establishment of Catholicism as the state religion. This of course would be a ridiculous conclusion, and so, reason would seem to suggest that prohibiting civil gay marriage is not a violation of the establishment clause.
The free exercise clause, it is claimed, protects the exercise of religion in the United States, and so it is claimed that if a same-sex couple believes civil gay marriage is acceptable, and if they so desire as to be “gay married” the government must provide such a marriage to them. This argument also fails however, because the government can regulate actions, even if it cannot regulate beliefs. This has always been accepted since Reynolds v. United States, when the court decided that the practice of polygamy is illegal. If polygamy can be prohibited, so can civil gay marriage. Therefore, not providing civil gay marriage is not a violation of the free exercise clause.
The push for civil gay marriage has been argued to be one of the contentious civil rights issues of our era. While I agree it is certainly one of the most contentious issues of our era, I hope this essay has shown that it is not a civil rights issue, since the typical arguments advanced for a “right” to civil gay marriage are insufficient to justify it. Furthermore, by recognizing that civil gay marriage is not equivalent to civil marriage but opposed to it, we can see that the existence of civil marriage testifies against civil gay marriage, not for it. Finally, I hope that I have shown that arguments against civil gay marriage cannot be condemned as mere religious rhetoric, or a violation of the first amendment. Should my positions hold, it would seem that the supporters for civil gay marriage must either admit defeat, or find new arguments that are substantially different than those rebutted here. But should they attempt to do so, I caution them not to make the mistake of thinking that they must merely show that civil gay marriage is acceptable, for as stated earlier, this is not merely an issue of legalization of gay marriage, but rather, a debate about whether the government should render the service of providing civil gay marriages. Therefore, civil gay marriage proponents must show that gay marriage is something essential to society or beneficial to the common good and show that it is an institution the state has an invested interest in protecting. Furthermore, they must show that promoting civil gay marriage would not contradict with the explicit interest in marriage as we currently understand it. Until these standards are reached, arguments for civil gay marriage will continue to be insufficient, and therefore, the US government has no reason to provide civil gay marriages.