Introduction: the need for secular justifications
The movement to accept gays and lesbians as fully protected under the Constitution, as persons included within the normal, healthy range of human variation, has gained considerable ground in recent decades. Nevertheless, to a surprising extent the debate over gay rights has skirted the central issue: What, if anything, is wrong or immoral about being gay? Is there a rational basis for the still widely held prejudice against homosexuality, a basis which justifies discriminatory public policies? Does the practice of homosexuality constitute a real threat to anyone or do anyone real harm? I will argue here that there are no good secular grounds for claiming that homosexuality is either morally defective or socially harmful, and that those who advance such claims (the Joint Chiefs of Staff, Sam Nunn, Pat Robertson, and a good percentage of the population at large) hold a traditional, largely religious bias against gays that should not go unchallenged. By confronting this bias directly and exposing it as without secular foundation we can accelerate progress towards gay and lesbian equality.
For those in the gay community, this undertaking might seem to belabor the obvious. They hardly need convincing that their sexual orientation is a natural, central aspect of their identity, not an immoral choice or a pathological aberration. Nor will declaring the normalcy of homosexuality seem particularly new or controversial to those already comfortable with their gay friends. But there is an argument to be made concerning freedom of conscience and the Establishment Clause of the First Amendment. Since anti-gay bias is largely justified by citing religious or quasi-religious beliefs, and has no rational basis in any substantive harm that homosexuality constitutes, public policy codifying this bias verges on the government establishment of religion. Declaring or implying that homosexual acts are "crimes against nature," as do some state anti-sodomy statutes (and the military code of conduct) establishes a view about what's natural and normal with which reasonable people might well disagree, just as they might disagree about the existence of God or life after death. To impose that view via the law, without any rational secular purpose, would seem to violate the constitutional prohibition against government support of contentious religious and philosophical doctrines.
That we can understand traditional opposition to gay equality as justified principally by debatable religious and philosophical views, and not in any moral or social threat, represents a recent evolution in our secular conception of sexuality. Forty years ago it was simply assumed, by many of us, that to be homosexual was to be depraved, deviant, or at the very least, sexually defective. Assuming this, we accepted government policy and social sanctions against homosexuality as reflecting an objective moral reality. But the realization is dawning that the traditional animus against gays may not be founded on any moral fact whatsoever, no more than sexism, anti-Semitism or apartheid. A clear distinction now exists between the growing secular consensus regarding homosexuality, which holds it to be harmless, and religious and sectarian views, which deem it pernicious. Yet existing and proposed laws limiting gay rights still incorporate these latter views, which means that the state actively supports discrimination based on the highly questionable assumption that being homosexual is inherently immoral, unnatural, or unhealthy. Such support should end, and it can end only by conforming the law to the secular recognition that homosexuality (as well as bisexuality) lies within the spectrum of normal human variation, morally on a par with heterosexuality. Many, of course, will continue to harbor anti-gay sentiments, but there will no longer exist any acceptable public justification for codifying private distastes in law or policy.
Central to this argument is the notion that there exists in the United States (as in many liberal democracies) a specifically secular socio-political culture, a set of institutions and common values which find justification independent of any religious tradition. It is this culture, embodied in the fundamental freedoms and protections of the Constitution, which the state has a mandate to establish. Of course the values of this culture often do find support from religious perspectives, but it is not primarily for this reason that they win our allegiance. Rather, it is because the guarantees of privacy, free speech, equal protection, and due process secure us against the majoritarian imposition of any given religious or philosophical ideology that we hold the Constitution so dear. We are at liberty to practice the religion (or non-religion) of our choice precisely because we have a fundamentally secular arrangement that insures freedom of conscience.
None of this suggests, however, as Stephen Carter has recently charged in his book The Culture of Disbelief, that secularism somehow bars religion from entering political discourse. Those who wish to make religious arguments concerning law, policy, or candidates are of course free to do so, and they may well find listeners. Thus in what follows I have no brief against religious practice or expression, even in the political arena. Rather, the separation of church and state I defend works to protect religious (and philosophical) expression so that it, in turn, is free to affect legislative and judicial outcomes. But it is crucial that these outcomes, even when supported by religious arguments, have a sufficient secular rationale independent of such support. If they do not, then the state has allowed the establishment of doctrines which sooner or later will compromise the free public practice of religion itself, and which will end up restricting the rights of those who happen not to practice the doctrines.
Challenges to the constitutionality of anti-gay statutes now underway will force the courts to address the issue of their rationale, a rationale which must reach beyond the mere expression of popular prejudice. As the secular ground has shifted regarding homosexuality, anti-gay laws have been left unfounded by anything other than religious and sectarian justifications which cannot pass constitutional muster; thus the time has come to sift these statutes out from public policy. Only when this is accomplished will we enjoy a truly secular state within which we are really free to believe as we wish, and within which gays and lesbians are really free to be who they are.
The Rhetoric of the Natural
Since it is clear that any strictly religious basis for discrimination against homosexuals would run afoul of church-state separation, those who support such discrimination must dress their arguments in secular garb. Despite the oft-cited claim that we are a de facto Judeo-Christian nation, no one can cite biblical chapter and verse against gays and hope to be taken seriously, at least by those who shape the law. (Unless, that is, the Christian Coalition succeeds in capturing a significant number of legislative seats.) Nevertheless, religious ideologies still operate, transmuted into language which seems neutral with regard to matters of faith, and hence superficially more capable of supplying a rationale for public discrimination. This language might be called the "rhetoric of the natural," and the central claim is simply that homosexuality is unnatural, in some objective sense which merits moral condemnation. The term "unnatural," I believe, does exactly the same work as does "sinful" in explicitly religious contexts, but its claim is just as empty as for its religious counterpart.
The rhetoric of the natural, of course, has always been with us as a means to single out, isolate, and scapegoat those among us who are sufficiently different to arouse suspicion or distaste. Its most religiously explicit manifestation was in the canon of Thomistic natural law, which held that human nature, and thus human behavior, at least in its church-sanctioned aspects, reflected God's design for us. Those who fell from grace by virtue of acts which thwarted reproduction (e.g. masturbation, heterosexual sodomy, and homosexual relations) were violating divinely given natural law, hence were both sinful and unnatural, morally blameworthy and repugnantly aberrant. As natural law theory developed during the Enlightenment, the religious basis for the natural/unnatural distinction was dropped in favor of a more purely secular interpretation. But, crucially, the moral judgment carried by the distinction remained. Those who fell on the wrong side of it were perhaps no longer sinful, but they remained morally blameworthy for being deviant, for their failure to meet the natural norm. They were, in effect, living crimes against nature, a nature endowed with a teleological order within which man played a proper, specified role. Homosexuality threatened the fulfillment of man's contribution to nature's purpose by not serving the ends of reproductive continuity and traditional family life.
The rhetoric of the natural is evident today in laws which limit gay rights and criminalize gay sex, such as the military restrictions on homosexuals and state anti-sodomy ordinances. The military code of conduct outlaws "unnatural carnal copulation" (anal and oral sex) and the term "unnatural" crops up in many existing and proposed statutes (and personal views) with the same discriminatory, condemnatory intent. But is this sense of "unnatural" truly secular, that is, uncontaminated by religious or philosophical views not pertinent to maintaining the civil order? Clearly, the ancient natural law conception of nature as teleological, and of humankind serving its purpose by restricting sex to those acts that may result in reproduction, is now a contentious matter of quasi-theological or philosophical debate, even though it may once have been widely accepted. So while not categorically religious, such a disputed notion can hardly function any longer as the secular basis for what we mean by "unnatural". Given this, what other meaning can we discover which still carries the moral opprobrium that so obviously motivates anti-sodomy laws and anti-gay referenda?
It seems there is none to be found, beyond the slightly critical use of the word to describe something that differs from the expected norm (e.g. "He seemed unnaturally pale"). The current secular conception of nature is that of science, which is explicitly agnostic about natural purpose and intention. Science cannot prove or disprove the hypothesis that nature has a final goal or end "in mind," so it puts the question aside as undecidable. Thus, in the secular arena where science holds sway--that is, in matters of law and government--nature cannot be presumed to confer teleological superiority (much less God's approval) on heterosexual, reproductively oriented behavior. We may not infer, at least for public purposes, that nature wants us to fill the heavens with our kind, or that sex acts which cannot result in pregnancy thwart any design or intent, and are therefore unnatural.
On the scientific view, everything in nature, including sodomy, is literally and unavoidably natural, while the unnatural is simply the non-natural or the supernatural, should these exist. To label homosexual behavior "unnatural" in this sense is again false, since it's obvious that, like all other human attributes, homosexuality and bisexuality are a function of biological and cultural conditions, not of otherworldy influences. Recent studies which suggest that there may be definite genetic predispositions to sexual orientation reinforce this point. Nor is homosexuality any longer deemed unnatural in the sense of being a biological or mental illness, at least by the leading medical, psychiatric, and legal associations. Gays, therefore, are just as much a part of the natural landscape as straights.
Nevertheless, some scholars still attempt to use the natural law tradition to justify anti-gay sentiments. In a recent debate with New Republic editor Andrew Sullivan, Harvard government professor Harvey Mansfield Jr. held that homosexual sex is specially and irredeemably shameful. Sex, obviously, is "meant" for reproduction, so practices like sodomy which cannot result in pregnancy fail to meet this natural standard, and we feel this failure (or should feel it, he argues) as shame. But, even beyond the objections outlined above, there is a deep problem with Mansfield's position, or any position, which attempts to derive a moral stance from nature. This is simply the problem of the naturalistic fallacy: the illicit inference from a natural fact (certain sexual acts can result in procreation) to a moral injunction (individuals should ideally only engage in sexual acts which can result in procreation). As Hume pointed out long ago, there is no necessary link between what we find to be the case and what we ought to do. Even if we declare that some sexual practices serve a natural standard more than others, or tend toward our "true" or "perfect" nature as defined by our procreative capacities, there is still no way to establish the proposition that the natural standard should be our standard, or that procreation should be every individual's goal.
Although natural law arguments such as Mansfield's attempt to find a rational basis for homophobia, they are too flawed and contentious to count as reasonable secular justifications for government policy biased against gays. Instead, they simply express moral disapproval based on quasi-religious views or controversial philosophical opinions which, according to the Establishment Clause, may not serve as the sole foundation or motive for law. Generally, the federal and state governments are constitutionally barred from supporting positions on matters of conscience about which reasonable people disagree, and any view which declares homosexuality to be unnatural or specially shameful--because teleologically flawed, morally depraved, or biologically defective--is essentially a matter of conscience, and thus not an issue the state should take sides on. Like science, our liberal democracy is enjoined to be agnostic about such matters. Unless it can be shown, independent of religious and natural law arguments, that homosexual acts and partnerships constitute a real threat to social welfare, statutes prohibiting them or denying them equal protection are without a rational secular basis.
The Harm in Being Gay
It is obvious that much of the resistance to gay rights is rooted in traditional religious beliefs as well as the superficially more secular motive to keep sexual behavior within "natural" limits. But many would argue that, religion and philosophy aside, homosexual behavior still constitutes a real threat to both individuals and society, that to permit its unchecked expression would corrupt our youth, undermine the efficiency of our armed forces, and spell doom for the nuclear family. If laws may not discriminate on the basis of religion, they may still discourage and penalize what society determines are real harms. The question, simply put, is whether there exists a rational basis for, or a legitimate state interest in, anti-gay discrimination. In deciding whether homosexual conduct causes harm, we must, of course, ignore arguments which take the conduct per se to be immoral, perverse, unnatural, etc., since these simply reiterate the religious and philosophical positions that we have already ruled out. Rather, since there is nothing intrinsically wrong about homosexuality from a secular perspective, we must consider the consequences of such conduct for the individuals who engage in it and for the wider social network of which they are a part. Do adult consensual homosexual acts and same-sex partnerships have harmful consequences which justify discrimination against gays in schools, the workplace, the military, and in marriage?
The acts themselves, anal and oral sex, are of course not proprietarily homosexual, so their negative consequences (if any) apply to heterosexual as well as homosexual partners. (There are no "high risk groups," only higher risk behavior.) Since only a vanishingly small minority seriously propose enforcing anti-sodomy statutes against heterosexuals, it can be assumed that the consequences of sodomy--that it frustrates procreation and possibly increases the chance of acquiring AIDS--are the concern of the parties involved, not the state. What goes on in the bedroom between heterosexuals, including sodomy, generally does not warrant government intrusion beyond the now standard public admonitions to practice safe sex.
If such is the case then it is not the sexual behavior per se that is at issue in anti-sodomy laws, but the sex of the partners. Do anal and oral sex, when engaged in by homosexual couples, have adverse consequences for individual and social welfare which are absent when engaged in by heterosexual couples? Is there some objective harm, which does not attach to heterosexual sodomy, which justifies banning or suppressing homosexual relations? Here we have reached the heart of the matter, since it is indeed the case that anti-sodomy statutes, when they are enforced, are enforced selectively against homosexuals. One might suppose, then, that such selectivity reflects some serious threat posed by homosexual sex that could be precisely articulated. But what could this possibly be? The physical consequences of sodomy are the same for gays as for straights, so it isn't as if homosexual encounters have some particularly nefarious biological aftermath.
The answer is, of course, that prejudicial attitudes about homosexuality aside, there is no objective personal or social harm which attaches to gay sex or to gay relationships. In fact, all the pain and anguish of growing up gay, all the risks and disadvantages presently attached to living a gay life, are a result of anti-gay bias, not anything intrinsic to being gay. Anti-sodomy statutes are selectively enforced against homosexuals and bills limiting gay rights are proposed not because gays pose any objective harm, but because of the entrenched belief that something is wrong about being homosexual. The consequential harm of homosexual behavior, or of homosexual partnerships, is simply and only a function of homophobia and heterosexism, and that harm is mostly visited upon homosexuals, not upon those to whom they supposedly pose a threat.
Church and State
In upholding the constitutionality of a Georgia anti-sodomy statute in the notorious Bowers v. Hardwick decision (1986), the Supreme Court majority did not try to establish that homosexual sodomy causes substantial harm, a task which would have presented them serious difficulties. Rather, they appealed to the "presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" and to the "ancient roots" of this belief. What excluded homosexual sex from protection under the right to privacy, in the opinion of the court, was simply the traditional assumption that something is wrong or immoral about it. Since this assumption has no foundation in any objective harm constituted by gay sex, what criminalizes gay sex, it turns out, is simply traditional, long-standing homophobia and heterosexism. Presumably, if attitudes about homosexuality were to change sufficiently, the basis for the court's holding would evaporate.
That attitudes against homosexuality are justified mostly on religious grounds was explicitly acknowledged by Chief Justice Burger's concurring opinion in Hardwick, in which he stated that "Condemnation of [homosexual conduct] is firmly rooted in Judeo-Christian moral and ethical standards." Anticipating the argument I make here, Justice Blackmun replied in his dissent "That certain, but by no means all religious groups condemn the behavior at issue gives the state no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine" (my emphasis). Blackmun went on to claim that no such justification--for instance in some demonstrable harm of homosexual sodomy--existed, hence gay sex should be constitutionally protected under the right to privacy. But further, from Blackmun's point it can be argued that since the Georgia statute essentially rests on an ancient religious supposition that homosexual conduct is immoral, it violates the fundamental separation of church and state. Since there no longer exists any secular justification for the traditional moral prohibition against homosexuality, the Georgia statute in effect imposes a religious doctrine on its citizens. The only tangible harm specially attached to homosexual sodomy--its criminalization-- thus results from an unconstitutional importing of traditional religious bias into the secular arena.
Of course it is unlikely that the court will come to this conclusion soon, given that prejudice against homosexuality is still a widespread cultural phenomenon, not the special grievance of a particular religious group (although those on the religious right seem far more likely to be homophobic). The religious justifications for this bias, although perfectly well known and documented, are effectively outweighed by its having been, for the last three centuries, the coin of the secular realm. Only by tracing the language of anti-sodomy statutes back to its biblical roots, or by exposing it as the rhetoric of the natural, can the religious or contentiously philosophical content of the statutes be made vivid. (Justice Blackmun noted in Hardwick that "The theological nature of the origin of Anglo-American anti-sodomy statutes is patent.") But such historical truths are easily overwhelmed by the brute presumption that because an attitude is secularly entrenched, there is no warrant for strict scrutiny of laws which codify it to see if in fact they are religiously neutral or serve a legitimate state interest. Therefore the prospects are dim for any legal recognition of the church-state conflict embedded in anti-gay statutes. More likely, the court will eventually be led to overturn these statutes by the same sort of social pressure which led to Roe v. Wade: attitudes about homosexuality will simply evolve to the point at which anti-sodomy laws and laws limiting gay rights become patently contrary to commonsense about sexuality. Being gay or bisexual will be an uncontroversial, acceptable variation on the theme of being human, like being black, female, Jewish, or atheist.
Were the court to evaluate an Establishment Clause challenge to an anti-sodomy statute, it would undoubtedly use the standard derived from Lemon v Kurtzman (1971). This requires that a law have a secular purpose, that its effect be primarily secular, and that the law not lead to undue entanglement of church and state. The secular purpose of anti-sodomy statutes may at one time have been obvious: to prohibit conduct widely thought to be immoral. But it has become increasingly clear that the immorality of homosexuality can only be justified on religious or contentiously philosophical grounds; there is nothing intrinsically bad about it. Hence, there is no longer a secular purpose to be found in statutes which criminalize sodomy, or for that matter any statutes (for instance Colorado's Amendment 2) which deny due process or equal protection to homosexuals. The state has no legitimate interest any longer in treating gays differently than straights, and to do so wrongly establishes sectarian views which compromise that minority's liberty and security.
The Military and the Schools
In the ongoing debate over gays in the armed forces, the military continues the vain search for a rationale to justify its own interest in treating gays differently. The rallying cry for those resisting full acceptance of homosexuals is "unit cohesion". The presence of known gays and lesbians within the ranks would jeopardize cohesion, so it is claimed, by generating suspicion and distrust among unit members. But since there is no evidence that homosexual recruits are any more prone to sexual misconduct than straights, such distrust can only be explained by the homophobic attitudes of those in the military, not by any real threat that gays pose to their comrades in showers or barracks. To the extent that worries about unit cohesion have some basis in fact, this fact is homophobia itself, the fear of homosexuality harbored by many military personnel. Since this fear has no rational foundation, to let it operate as the de facto cause for discrimination against homosexuals means that an irrational prejudice is shaping basic military policy. And to the extent the prejudice is validated by policy, it gains legitimacy, and ends up producing the very danger it claims to exist. If troops were instructed in the truth about homosexuality, namely that it poses no threat, then the cause of any problems with unit cohesion concerning homosexuals--homophobia--would eventually disappear.
The revised military policy on gays recently enacted by Congress is driven by the same, traditional assumptions about the immorality or undesirability of homosexuality: gay soldiers must not voluntarily reveal their orientation, nor may they engage in homosexual acts while in the armed forces. After all, how much can change when the Uniform Code of Military Justice still outlaws sodomy as "unnatural carnal copulation"? The only real difference is the implicit recognition that gays can, and do, function in all respects as effectively as any other military personnel. Sexual orientation does not affect competence or reliability; only others' knowledge of someone's being gay brings harm to the unit. But if it is merely knowing about someone's sexual orientation that the policy seeks to suppress, then it is clear that the real danger to unit cohesion lies not in homosexuality itself, but in negative attitudes towards homosexuals. But of course the new policy can't directly address these attitudes, since that would bring up the embarrassing question of how to justify them. Although supporters of the policy are unlikely to admit it, "don't ask, don't tell, don't pursue" really amounts to an attempt to limit, via the requirement of sexual secrecy, the situations in which homophobia, not gays, might disrupt military effectiveness.
Recent court decisions against the old policy bode ill for the new, since they have recognized that indeed it is bias, not a rational interest, that motivates unequal treatment of gays. As a Federal appeals court ruled in reinstating Navy midshipman Joseph Steffans, "..the Government cannot discriminate against a certain class in order to give effect to the prejudice of others." Even if regulations against sodomy remain in the military code, it is likely that their biased enforcement against gays--still the implicit motivation for the new policy--will be deemed unconstitutional.
The situation in the schools regarding homosexuality presents much the same dynamic as in the armed forces: traditional prejudice against gays, left unchallenged as a supposedly justifiable secular value, creates an environment in which it can indeed be disruptive to declare oneself homosexual. The inter- and intra-personal conflict caused by coming out of the closet is then held against the "deviant" (whether teacher or student), and lo, homosexuality is a problem, to be solved by enforcing heterosexuality as the moral and psychophysical norm.
Curricula designed to counter stereotypical prejudice against gays have been accepted in some localities, and decisively rebuffed in others, most recently and notably in New York City's rejection of the "Rainbow Curriculum." Other curriculum campaigns, supported by the religious right and champions of traditional "family values," have sought to encourage teaching that gays should not be accepted as normal, equally valuable human beings. Such political contests for (as some think) the hearts and minds of school children are the essence of local democracy, fought tooth and nail using whatever propaganda the local copy shop sees fit to print. In the free marketplace of belief, any argument--moral, religious, philosophical, medical, or social--is fair ammunition. But the most successful anti-gay strategy is to tap into existing prejudices without seeming sectarian, by arguing that to concede legitimacy to homosexuals is simply "un-American" or "anti-family." Such claims, on the surface, seem properly secular, since gays are posed as a threat to values common to virtually all persuasions.
But what, precisely, constitutes this threat? What is it about homosexual orientation that prevents a person from being equally valuable and his lifestyle equally legitimate? To teach explicitly in school that gays are second-class citizens requires that such questions be answered, that the harm in being homosexual be clearly stated. Again, the issue boils down to the content of the claim that gays are somehow inferior or a threat. When asked to justify such a claim, proponents of anti-gay curricula must show what real harm acceptance of gays brings with it and specify exactly what makes them deserving of discrimination.
If the supposed threat is to the traditional function of the family, then it must be demonstrated that gays and lesbians are somehow incapable of maintaining stable relationships within which children can be successfully raised, and there is no evidence of this. If the threat is to the traditional form of the family, the reply is simply that married male-female couples with children already comprise a minority of American households, and that no moral fault attaches to the majority of families that are not thus constituted. If being gay is pronounced "immoral," "unnatural," or "sick," and thus a poor example for America's youth, then it must be asked on what grounds this judgment is made, at which point it will become clear that the judgment is essentially religious or contentiously philosophical, and has no accepted secular foundation. In short, once the issue of the basis for homosexual inferiority is raised, as it must be if discrimination is to be taught in schools, then proponents of anti-gay curricula will have to provide more than family value slogans to back up their agenda. But any rationale for discrimination against gays will turn out to be either empirically unfounded or religiously motivated, and hence should find no place in public school education.
Some propose, hoping to find a middle ground, that the whole issue of sexual orientation should simply be ignored, and left for parents to deal with. In fact, the argument is often put that sex education in general, and teaching acceptance of gays in particular, usurps parents' basic right to instill moral values in their children. But this won't wash, since too much has happened concerning gay rights over the last few decades to omit from history and social science texts. If the history and current events of the gay rights movement (and its opposition) is to be taught, it has to be taught from a perspective, either the secular perspective which finds no intrinsic fault with being gay, or the various religious-philosophical perspectives which find it immoral or unnatural. It is clear which perspective public schools must take, whatever some parents might think. The story of gay liberation must be taught as an additional chapter in the study of liberation movements generally, as yet another example of how individual rights have gained ascendancy over traditional prejudices. Just as racism and sexism have gradually come into focus as correctable human failings, as products of superannuated assumptions about what's natural and normal, so too will homophobia. Once this lesson is firmly in the curriculum, the harm in being a gay student or teacher will reduce to the harm done by the small, but probably ineradicable minority, that take human status differences to reflect a hierarchy of human worth.
Marriage and the Weight of Tradition
If the real harm in being gay consists of being the victim of homophobia and heterosexism, a good deal of this harm surely rests in being denied the right of marriage, with all its attached civil advantages. Marriage is the public sanction and recognition of an interpersonal commitment, and the personal financial and legal benefits entailed by marriage reward its manifest contribution to social stability. The question is whether there are substantive grounds, beyond the inertia of religious and cultural tradition, for refusing to sanction gay and lesbian partnerships in exactly the same way. Since gay and lesbian partnerships have the same stabilizing effects on individuals, and thus on communities, as do heterosexual partnerships, one would suppose that the state has an equal interest in reinforcing their permanence by awarding them the civil advantages of marriage.
But of course the state is less the rational, dispassionate protector of the public good (at least the good as progressives see it) than a collective vehicle of sometimes irrational tradition. Someone convinced of the essential harmlessness of homosexuality might simply ask about same-sex marriage, "Why not?" and get replies from the establishment to the effect of "It's just not done, you know," or "It will never play in Peoria." But a cogent answer to the question would have to show that there is some compelling state interest which justifies denying to homosexuals fundamental civil rights enjoyed by heterosexuals. The reply might be put, along the lines of the majority opinion in Hardwick, that the state has an interest in not offending the settled convictions of many of its citizens regarding homosexual marriage. Indeed, not a few feathers would be ruffled if a state did recognize a gay partnership as true marriage--not merely a "domestic partnership" as some cities have done. (As of this writing, Hawaii may well be on the verge of such recognition.) But does safeguarding the conventional form of marriage, absent any material harm an alternative form presents, constitute a compelling interest, one that justifies denial of equal protection under the law?
It would hardly seem so, but the weight of tradition surrounding such a central cultural institution has the practical effect of such an interest. This is because courts have been reluctant to sanction, simply to accommodate the claims of homosexuals, what would amount to a revolution in the concept of marriage. As a Washington State court argued in Singer v. Hara (1974), the legal definition of marriage, following the overwhelming custom across cultures and over millennia, involves individuals of the opposite sex. The men in the case "were not denied a marriage license because of their sex; rather, they were denied a marriage license because of the nature of marriage itself" (emphasis added). Or, as a similar state court decision (Dean) put it: "it is simply inaccurate to say that plaintiffs were denied a marriage license due to their 'sexual orientation'. Two heterosexuals of the same sex...would have been similarly treated." The plaintiffs in these cases argued (on grounds of equal protection) that their fundamental civil right to marry someone of the same sex was unconstitutionally denied, but the courts merely pointed out that no such right existed, since marriage as defined by the state is strictly heterosexual. Although the plaintiffs in Singer v. Hara went on to claim that this definition of marriage is itself discriminatory, the court held that the definition has a "rational basis" by virtue of being "deeply rooted in our society." Quoting another state decision (Baker v. Nelson), it added that "marriage as a union of man and woman...is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend."
As in Hardwick, this last argument is just the straightforward, conservative notion that long-standing tradition confers presumptive validity to existing institutions or laws. The court was not about to abandon judicial restraint by autonomously legislating a new definition of marriage. So even though the court found no compelling state interest to justify denying homosexuals the protection of marriage (nor has any court in similar cases) it nevertheless managed to find a safe, and, many would argue, legally sound route to deflect any constitutional challenge to the status quo.
The hope for gays and lesbians is that the weight of tradition is being offset by the growing realization that marriage, despite its original biological "purpose" in procreation and childrearing, and despite its religious trappings, is now largely a civil institution of specific personal rights and responsibilities which exists primarily to benefit individuals. Thanks to technological innovations, heterosexual sex is no longer indispensable for procreation, and raising children is no longer the special privilege, talent, or obligation of heterosexual couples. People marry for their own reasons, to fulfill their individual desires for intimate association, financial security, and family life with another person of their choosing. As Justice Blackmun wrote in his Hardwick dissent, "we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households." Looked at from this perspective, and taking into account the essential harmlessness of homosexual relations, the prohibition of gay marriage seems an arbitrary and damaging restriction on the basic life opportunities of a large number of persons. Reverence for tradition aside, there is no secularly defensible rationale for it. The basic conflict is between the entrenched cultural norm of heterosexual marriage and the expanding liberal, secular commitment to equal civil rights for persons whatever their status (with exceptions, of course, for age, health, and criminal conviction).
It is unlikely this conflict will be resolved soon in the courts, since the judiciary is essentially and necessarily conservative in its respect for precedent (although Hawaii may prove such pessimism unwarranted). Rather, the change will more likely come through legislative efforts which, bit by bit, secure for homosexual partners all the civil rights and legal protections afforded by conventional marriage. The resulting full-fledged "domestic partnership" may not be called marriage, but it will function as marriage, for all civil purposes. Of course this strategy does not secure what, psychologically, is most important, the equal social regard for gay partnerships. But this regard cannot be commanded, either by the courts or by legislation, but must evolve as the culture learns, all too slowly, that gays and lesbians are simply people. Once this acceptance is in place the final semantic step can be taken, and gay couples who take the appropriate vows will truly be said to be married.
Those living after the establishment of homosexual marriage will most certainly draw parallels between the struggle for gay rights and other liberation movements, and many will wonder what all the fuss was about. How could anyone have supposed that being gay or lesbian was intrinsically immoral, or deviant, or sick? On what basis, precisely, did they think that homosexuals should be denied any right or privilege given to heterosexuals? These questions, posed from a vantage point free of our presently limited conceptions about what is natural and normal, will occasion the same sort of amazement we feel when we remember that women were denied the vote, or that blacks had to ride in the back of the bus. But to get to that vantage point we must ask the questions, relentlessly, and expose prejudice against homosexuals for what it is: a religiously incited and secularly unfounded bigotry. Our concept of a person deserving of full equality is still emerging, freeing itself from one traditional restriction after another, but always rediscovering the central truth--that the basis for equality rests not in a particular set of personal characteristics, but in a fundamental set of personal interests awaiting fulfillment. For gays and lesbians, these interests have waited far too long.
© Thomas W. Clark