Like any other straight person not working in the wedding industry, I haven’t been affected at all by the Supreme Court’s recent decision legalizing same-sex marriage. But the arguments of the losing side have been interesting (see previous posts here, here, and here), and I continue to follow what they have to say.
Lately they’ve taken to claiming that the decision amounts to religious discrimination and a federal imposition on states’ rights. If valid, their objections would apply with equal force to Loving v Virginia, the wonderfully named 1967 decision that legalized mixed-race marriage on the same 14th Amendment grounds. Then as now, opponents advanced religious arguments (including the original trial judge in the case, who contented that the Lovings’ mixed-race marriage was counter to God’s will as well as Virginia’s 1924 Racial Integrity Act), and in both cases the Court overruled state statutes and constitutions.
In fact, there are many striking similarities between Obergefell v. Hodges and Loving v Virginia; see for example Wikipedia’s article on the latter or this brief summary of the nearly identical arguments used by marriage opponents in both cases.
But hardly anyone wants to say that Loving v Virginia was decided incorrectly, so when the subject arises, critics of last month’s decision are reduced to denying the obvious parallels or trying to change the subject. See, for example, Ted Cruz’s performance on NBC’s Today Show June 29 (video here) in which he falsely claimed that there was no religious opposition to mixed-race marriage and then changed the subject to slavery, which he’s against.
In any case, the Court’s critics have it backwards: Religious liberty was not reduced by Obergefell v Hodges; it was expanded.
A number of Christian denominations allow same-sex marriages, including the United Church of Christ, the Evangelical Lutheran Church, and the Presbyterian Church (U.S.A.). Last week the governing body of the Episcopal Church — the American branch of the Anglican communion — voted overwhelmingly in favor of allowing same-sex marriages (though individual members of the clergy remain free to choose whether to participate). The Reform and Conservative (but not Orthodox) branches of Judaism recognize same-sex marriage as well. All these religious groups are now for the first time free to practice their beliefs on marriage in every state.
In contrast, the Court’s decision does not force religious groups or clergy members opposed to same sex marriage to change their practices. The only freedom they’ve lost is the freedom to use the government to restrict the religious rights of others.
(To anticipate an objection: Yes, in some states, civil rights laws don’t allow businesses to discriminate against gays and lesbians on religious or other grounds, just as they’re not allowed to discriminate against members of other races and religions. But that has been true for some time, and it has nothing to do with Obergefell v Hodges.)
I should acknowledge that opponents did offer one novel argument in Obergefell v Hodges that was not raised in Loving v Virginia, namely a claim that the core essence of marriage is sexual reproduction, and that this rules out marriage for couples unable to procreate. Of course, that argument is fundamentally dishonest (if those making it were serious, they’d be calling for laws against marriage for the elderly and infertile), but more importantly it’s just plain wrong. Marriage isn’t primarily about sex, it’s about caring for one another. Wedding vows, whether secular or religious, are promises to love, honor, and cherish, for better for worse, for richer for poorer, in sickness and in health. The wording varies, but the subject of sex rarely draws so much as a passing mention even when the couples write their own.
(It used to be that brides also promised to obey, thus adding a welcome bit of comic relief, but that joke has now largely been phased on in favor of physical comedy better suited to YouTube.)
The commitment to caring implicitly applies to children as well, of course, but that’s true of adopted as well as biological children.