About that Federal Marriage Amendment

Matthew Hoy
By Matthew Hoy on June 12, 2006

Yes, the Republicans trot out the constitutional amendment that would ban gay marriage out ever couple of years in order to rally their base. And if the Democrats had control of either house, you can bet your knickers that there would've been some vote on raising the minimum wage.

In other words, it's politics and at least it's predictable.

But, while it may never get enough support to actually become part of the Constitution, the FMA is an understandable and predictable reaction to law-making via judicial fiat.

I know there are many Americans who take a "live and let live" position on gay marriage with the logic that it doesn't really matter to me if two gay people want to get married.

Unfortunately, this is a naive and shortsighted view of the issue, as an interesting article in Saturday's New York Times makes clear.

Needless to say, the legal arguments are intricate; that, after all, seems to be the definition of legal arguments. The lawyers are back and forth on whether continuing opposition to same-sex marriage, if it were recognized, might put a religiously affiliated institution at risk of losing its tax-exempt status, as Bob Jones University did for prohibiting interracial dating and marriage on the grounds that they were unbiblical.

Asked by a reporter for The Chicago Tribune whether a conservative Christian college would risk its tax-exempt status by refusing to admit a legally married gay couple to married-student housing, Cass Sunstein, a constitutional scholar at the University of Chicago Law School who had not been at the Becket conference, answered, "Sure — and if pigs had wings, they would fly." He dismissed the idea as a scenario "generated by advocacy groups trying to scare people."

But Professor Sunstein, as it happened, had been asked only about this specific question and not the whole range of the Becket papers' arguments, which he had not read. After quickly reading Professor Feldblum's paper and dipping into Mr. Stern's, he granted that they pointed to conflicts that were "real and serious."

Besides possible, even if remote, risks regarding tax exemption, the scholars' papers noted laws forbidding discrimination in hiring or toleration of a hostile workplace environment. They noted antidiscrimination provisions in many local or state laws licensing commercial enterprises and professional activities, as well as in the ethics codes of professional associations that have a role in accrediting professional schools, licensing professionals or resolving civil suits. And of course they noted the civil rights laws, federal, state and local, barring discrimination in places of public accommodation, housing and education.

And is there really any doubt that same-sex marriage proponents will take these further legal steps once they have accomplished their goal?

As the article notes, Boston Catholic Charities stopped providing adoption services in the state of Massachusetts after the state required them to place heterosexual and gay couples on equal footing when it came to decisions on where to place children.

I'm reminded of a debate that aired several years ago on C-SPAN between Alan Keyes and Alan Dershowitz regarding the role of religion in public life. Dershowitz was willing to die to protect Keyes' ability to "practice" his religion as long as that "practice" didn't actually include doing anything. For example, Keyes could say that homosexuality was wrong all he wanted, but he couldn't (if he were a city councilman) vote against issuing a permit for a gay pride parade if he was basing that decision on his personal religious beliefs.

There's going to be a lot of battles in the coming decades pitting religious freedom versus antidiscrimination law. To pretend that the legalization of gay marriage -- and the inevitable normalization of polygamy and all sorts of other "marital" relationships -- is not going to have a far wider impact is misguided.

*UPDATE* Changed abortion to adoption. I'm going to blame the pseudoephedrine for the error.

On the same subject, California courts have ruled that doctors don't have to provide artificial insemination services to gay couples -- but they can't refuse to offer the services  because the couple is gay, but only because they're not married.

0 comments on “About that Federal Marriage Amendment”

  1. Uh, I'm pretty sure Boston Catholic Charities never provided abortion services. They did recently stop adoption services however.

  2. I believe it was actually contraceptives, which doesn't really change the point. The state decided to force a religious group to adopt practices contrary to its doctrine. The church rightly refused.

    The children who will not be adopted are the losers, but hey, they can't vote.

  3. There is PLENTY of doubt that the gay marriage proponents will seek to remove anyone's tax-exempt status. Removal of tax-exempt status for Bob Jones U is one thing. Removing it for Focus on the Family is quite another.

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