In the aftermath of last week’s Supreme Court ruling on Obergefell, I have engaged in some online debates with people of goodwill regarding the issue of same-sex marriage. I expect that those debates will continue for some time to come, but in the event that it is useful, here is a comprehensive outline regarding where I stand regarding the issue:
- Obviously, it ought to go without saying that the best outcome imaginable would have been for the legislatures of all fifty states to enshrine into their respective state constitutions the right of same-sex couples to marry.
- The above having been written, the Court had a live case and controversy before it in Obergefell. Because I believe–as I have stated before–that I believe that the fundamental right to marry includes the right of same-sex couples to get married, and that challenges to this right should be found to fail regardless of whether a strict scrutiny or a rational basis test is being used, I also believe that the Court was right not to punt on the issue. Even though I find the majority’s reasoning weaker than I would have liked it, the majority reached the right result in Obergefell.
- I do not believe that religious institutions ought to be compelled to officiate same-sex marriages if doing so would violate the religious beliefs of the institutions in question. I also don’t believe that there is much (if any) danger that religious institutions will actually be compelled to officiate same-sex marriages.
- I do not believe that the legalization of same-sex marriages will lead to the legalization of polygamy or incest. Yes, I know that it is easy to hunt and peck and find news stories claiming that a slippery slope exists and that society will slide down it, but the ease with which such stories can be found is more attributable to the power of Google than it is to any increased likelihood that polygamy and incest will actually become legal. And yes, I believe that there are overwhelmingly compelling and powerful arguments against incest and polygamy that do not apply in any argument against same-sex marriage.
- Notwithstanding the two immediately preceding points, it is entirely possible–likely, even–that there will be some significant changes to the societal arrangement that will occur as a consequence of the ruling in Obergefell. Additionally, it is entirely possible–likely, even–that those societal changes will make some people uncomfortable, and will cause them to bemoan The Downfall of the Old and Established Order of Things. To this, my three word reaction is as follows: 1. I; 2. Don’t; 3. Care. I am not a fan of treating gays, lesbians and bisexuals as vermin simply because they want to commit themselves to another person in a loving relationship, forsaking all others, for as long as both of them shall live. If that makes some people uncomfortable, so be it; they are going to have to get over their discomfort and treat human beings like . . . well . . . human beings. Nothing more is being demanded, but nothing less ought to be expected.
- Notwithstanding my belief and expectation that religious institutions should not and will not be compelled to officiate same-sex marriages if doing so would violate their religious beliefs, discrimination against same-sex couples, or against individuals based on sexual orientation may increasingly be found a violation of public accommodation laws. And they should be. Such discrimination is already illegal if done on the basis of race, religion, or national origin, and one can choose one’s religion. One cannot choose one’s sexual orientation (please do spare me the counterclaims regarding this issue. They just do not persuade), and if it is okay to use public accommodation laws to protect people against discrimination based on religions that those people have chosen, then I have no problem whatsoever stating that it ought to be okay to use public accommodation laws to protect people against discrimination based on sexual orientations that they have not chosen.
- Finally, I want to write the following as an agnostic Jew who goes to shul every week, and who sits on the board of directors of his synagogue: If there is a God, I do not believe for a moment that in creating people, He decided to implant in those people a particular sexual orientation just so that the rest of us could feel justified in treating those people as second-class citizens. If there is a God, I believe that He would want all of his creations–including gay, lesbian and bisexual human creations–to be loved, respected and cherished. In the event that it was and is God’s Divine Plan to create gays, lesbians and bisexuals just so that the rest of us could grind them under our boots and make them feel sub-human in ways great and small, then I promise you that God and I are gonna have some words at the first available opportunity. And I am more than willing to risk Divine Wrath in telling him that such an arrangement stinks on ice and that I will not endorse it in any way, shape or form.