Stone on Gay Marriage

Gays kept separated; church and state not
Geoffrey R. Stone
Chicago Tribune
November 19, 2006

This month, my younger daughter got engaged. She surprised her partner with a proposal, a ring, and a string quartet playing "their" song. As my wife noted, with two daughters we never thought we'd have a daughter-in-law.

Mollie has known she is gay for a long time. When she was still a student in a private high school, she led a controversial effort to create a gay/lesbian/bisexual student support group. We thought this particularly admirable because she was doing it on behalf of other students. Little did we know.

Now, 10 years later, Mollie has found a life-partner. Mollie and Andrea are deeply committed to each other. They want to spend their lives together. Watching them over the last few years, it is easy to see why. They complement each other, take care of each other, respect each other and love each other. They want to have children, for all the right reasons.

In my experience, they are no different in their love, commitment and aspirations than any of the other young couples whose weddings I have attended over the last half-century.

But Mollie and Andrea cannot marry. Although Illinois has taken a leading role in prohibiting discrimination on the basis of sexual orientation, it has not seriously considered the question of marriage. It is time for Illinois to lead the nation into the 21st Century. In plain truth, it is immoral for the government to discriminate against Mollie and Andrea in this manner.

"Marriage," we are told, "is between a man and a woman." It is simply a matter of definition. It is a matter of Scripture. It is what God commands. Indeed, there could be no other reason for such a rule. Apart from religious precept, why would we have such a restriction?

There are, of course, rational reasons for creating the institution of marriage, and it is easy to see why those reasons might focus on relations between a man and a woman. Most obviously, marriage was designed to enable us to raise children in a stable environment. By binding the woman to the man, marriage assured the man that the children he raised were his own. Without that assurance, men would have little reason to take responsibility for children. Because that problem could never arise between two women or two men, marriage between them was unnecessary.

Marriage also played an important role in legitimizing sex. The early Christians believed that absolute celibacy was the only proper way to live. (Because the "Kingdom of God" was imminent, the early Christians saw reproduction as irrelevant.) Marriage was justified only as a means to prevent fornication (sex without marriage). As St. Paul put the point, "It is good for a man not to touch a woman. Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband." If they could not accept the higher discipline of celibacy, then "let them marry, for it is better to marry than to burn."

The institution of marriage has embodied many restrictions over the years since St. Paul. Marriage has been prohibited, for example, to people of different religions and different races. Like the ban on same-sex marriage, those prohibitions were justified by appeals to tradition, natural law and Scripture. In a representative statement, a judge explained miscegenation laws: "Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

Same-sex marriage is particularly troubling to some people on religious grounds because it so openly acknowledges the legitimacy of sodomy. According to traditional Christian doctrine, God destroyed Sodom because its inhabitants engaged in same-sex sex. (This is, by the way, a questionable interpretation of the story.) Importantly, God destroyed not only those who actually engaged in sodomy, but all the inhabitants of the city. The lesson was clear: To avoid damnation, one must not only refrain from same-sex sex, but also prevent others from engaging in it. For this reason, sodomy came to be regarded as a sin so "detestable and abominable" that it is "amongst Christians not to be named."

I have no problem with individuals leading their lives according to their own religious beliefs. If one person needs to wear a yarmulke during "The Star-Spangled Banner," so be it. If another disdains pork, good for her. If a third has to use peyote as part of his religious observance, fine. If a fourth believes her religion forbids her to marry a woman, I support her right not to do so. But why should our government officially impose one group's religious faith on others? Should the law require all people to wear a yarmulke, refrain from eating pork and not marry a person of the same sex? In a highly diverse society that celebrates both its homogeneity and the separation of church and state, government imposition of one faith's religious practice on others should be unthinkable.

At least with respect to same-sex marriage, our society is about to change. A third of Americans now favor allowing same-sex marriage, and more than half now support same-sex civil commitment. Our nation's greatest achievement has been its ability to recognize and overcome deeply entrenched racial, religious, gender and ethnic discrimination. We will achieve this as well in the realm of sexual orientation. But some of us grow impatient. I'd like to go to Mollie's wedding.

Geoffrey R. Stone is a law professor at the University of Chicago.