Toleration, Same Sex Marriage and Protecting Religious Freedom
The most surprising part about the United States Supreme Court decision legalizing same-sex marriage in all 50 states was not the decision itself. We heard those rumblings months ago.
The surprise was and remains the deafening silence in response to this court decision and the ones before it – especially in South Carolina, a place where we would typically cut off our noses if the federal courts told us not to. Yet in this particular case where a Supreme Court decision obliterates the 10th Amendment of our Bill of Rights, threatens the 1st Amendment that guarantees our free practice of religion and overturns our state constitution, the citizenry remain quiet.
The silence might suggest that South Carolinians grant little importance to the decision. Only nine years have passed since 76% of the voters approved an amendment to our state constitution defining marriage as a union between one man and one woman. Considering that recalcitrance forms the core of our state character, a loss of religious belief in such a short time period seems unlikely.
Another reason for silence might be fear of national ridicule – feared not just by ordinary citizens but their political leaders. The majority of our Republican elected officials publicly opposed same-sex marriages in the past when they were ensconced behind the state constitution, the will of the people and the legitimacy afforded by both.
The Supreme Court removed that legitimacy in the eyes of a national news and entertainment media hostile to any opposition to same-sex marriage. A media that, when combined with the lightning response of social networking, will incinerate a politician’s future in a matter of seconds.
Our purported conservative leaders know this. South Carolina Republicans seeking “national prominence” have been the quickest to concede defeat on this issue while continuing to parrot the need to “repeal Obamacare” in response to the other Supreme Court decision last week.
Beyond apathy, fear and lack of political leadership, uncertainty about the meaning of marriage itself may account for the silence. Ask the average South Carolinian to define marriage and most would confuse getting married with being married. Some would focus on a ceremony teeming with flowers, attendants, guests and the requisite bride and groom. Others might think of fifty good years spent with their spouse. Very few would think about trekking down to the county courthouse and handing over $35 for a license to legalize a domestic partnership. Throw in the court decision and even basic terms like bride, groom, husband and wife have suddenly become muddled.
The state does not confuse getting married with being married. When our state defines marriage, it merely defines who may form a legal taxable domestic union in the simplest of terms. It pays no mind to tradition, ceremony, permanency, progeny and most recently, gender of who will be legally bound. It does not require proof of the couple’s intelligence, income, education, vocation, ambition, future parental skills or lack of knowledge that a $35 license will bind the couple to a union that will cost them thousands of dollars to dissolve.
Governmental interest in licensing who may be married began in the early 20th century when social progressives across the United States and Great Britain were convinced that government intervention was needed to protect the family. Intervention required statistics that proved how badly families were doing. Statistical databases could not be built without the foundational information collected through government-mandated birth certificates, marriage licenses and death certificates.
Not all progressives were convinced that government should license marriage. George Bernard Shaw, playwright and a founder Great Britain’s Labour Party, observed that ‘here is no subject on which more dangerous nonsense is talked and thought than marriage. If the mischief stopped at talking and thinking it would be bad enough; but it goes further, into disastrous anarchical action.”
Shaw also believed that marriage could not be permanently defined. He continued, “it may be assumed without argument that unions for the purpose of establishing a family will continue to be registered and regulated by the State. Such registration is marriage, and will continue to be called marriage long after the conditions of the registration have changed so much that no citizen now living would recognize them as marriage conditions at all if he revisited the earth.”
The Progressive Era struggle over marriage licenses was not limited to Great Britain. This same battle was fought in our General Assembly where the debate about marriage licensing was consistently linked to divorce. Both marriage licensing and divorce were historically banned in South Carolina except for a brief period during Reconstruction when we were forced to adopt a clone of Ohio’s state constitution in which both were legal.
Progressives in Columbia, like their British counterparts, argued that marriage licenses would protect women and children. Conservatives opposed government-sanctioned marriage because it would eventually require the legalization of divorce, an outcome that they believed would destroy family stability and expose children to unnecessary hardships.
After much debate and two world wars, South Carolina legalized marriage licensing in 1911 and divorce in 1949. Our marriage licensing law has been mostly unchanged since then until the recent federal court ruling allowed same-sex couples to purchase marriage licenses this past November.
Like the marriage licensing debates one hundred years ago, not all progressives today agree that the legalization of same-sex marriage should be considered a victory. British columnist, Brian Sewell, writing last year in The Telegraph about the drive to legalize same-sex marriage across Great Britain said, “We have wasted our resources on the wrong campaign – the battle still to be won is against prejudice, the most insidious of enemies.”
Sewell, who stands as one of Great Britain’s most well-regarded art critics and who describes himself as “queer” rather than “gay” went on to write, “Most of us are content with what we now have within the law, and are happy to respect the deeply held belief of sincere, thoughtful and informed Christians for whom marriage is the one sacrament in which we cannot share.”
Sewell reveals that differences of opinion exist within the gay-rights community over whether a marriage license has any significant meaning in their battle against prejudice. Even his insistence on being labeled “queer” – a term of derision in our society – points to a division on gender definition not readily understood to those of us who still associate gender with anatomy.
To us tradition-bound South Carolinians, his words are surprising. Unlike Great Britain, our media presents the gay-rights community as an unassailable monolith with no visible fault lines. Sewell also offers a refreshing toleration to the traditional definition of marriage held by orthodox Christians worldwide. Contrast his published remarks to the absence of the same in the United States where no American progressive of Sewell’s stature dares to defend the Christian understanding of marriage.
If Shaw were alive today, he might agree when Sewell wrote “we have wasted our resources on the wrong campaign” – a campaign that goes beyond expanding who may marry and subjects same-sex couples to state controlled divorce laws – a subjugation of the individual that Shaw would never have seen as progressive.
The successful campaign for same-sex marriage presents a troubling victory for progressives. How can they celebrate an institution that their policies have almost ruined? The promise made by progressives was that by licensing marriages, the government could develop policies to enhance the family – policies that today are scattered throughout our educational system, our tax code and through countless government agencies that thrive on social experimentation.
Their policies have not reduced the number of victims but have victimized the institution of marriage and the children it was meant to protect. Consider the statistics – 41% of births in the United States are to unwed mothers compared to just 5% in 1940. 45% of children who live with single mothers are in poverty compared to 6% who live with both parents. Almost 50% of marriages end in divorce. These numbers suggest that same-sex couples campaigning for a marriage license have wasted their efforts seeking a stability that no longer exists. In that, they are now truly equal with traditional couples.
Sewell also touched on another important distinction not heard in the American media. He reminded us that marriage is a belief, religious or otherwise. We assume that an individual must “believe” in marriage to participate in the act of getting married and “beliefs” along with the actions attributed to them are protected by the First Amendment. The federal court ruling while seemingly extending rights to same-sex couples actually restricts the beliefs and practices of all Americans.
Sewell’s example brings us back around to the notion of civil tolerance. Not just tolerance of gay Americans but of conservative religious Americans too. Our tradition of civil tolerance did not happen by accident and well may be the reason for the silence that we hear today.
John Locke, whose political theories on tolerance were written into the Fundamental Constitutions of Carolina and then later on greatly influenced Thomas Jefferson as he wrote our Declaration of Independence, posited that we have a natural right to life, liberty and property – or to freely live once we are conceived, freely act for our own interest and freely enjoy the property earned from our actions as long as we do not violate the natural rights of others. He believed that toleration was essential for the greatest number of people to enjoy these fundamental rights.
When Locke wrote A Letter Concerning Toleration, religious intolerance was widespread even among protestant groups with similar beliefs. He stated that civil government was established only to protect our natural rights and had no authority to compel a person to hold a particular belief. This theory was most famously expressed in Jefferson’s letter to the Danbury Baptist Association where he used the phrase “a wall of separation between church and state” to describe the intent of the First Amendment to our Constitution and has allowed us to openly practice our beliefs, religious or otherwise, until now.
The Supreme Court decision has opened the door for a new day of religious intolerance by continuing to confuse what Locke called “the business of civil government from that of religion.” The court should have ruled that marriage was created as and remains an expression of personal belief and that civil government has no authority to define or license it.
Instead, the court issued a ruling that will restrict the free exercise of religion. This restriction has already been attempted in Houston where the mayor, who happens to be lesbian, used the city attorney to subpoena the sermons of five Houston ministers. The mayor wanted to determine if the sermons violated Houston’s Equal Rights ordinance. The subpoenas were withdrawn after a nationwide protest. Still, she showed no reluctance to use the public resources of Houston to pursue her personal agenda – a modern example of the kind of intolerance that Locke warned us about in 1689.
Her actions are only the beginning. The Supreme Court has set us on a course, especially in South Carolina, where the refusal of a minister to perform a same-sex marriage ceremony will deny him or her the free exercise of their religious beliefs. The restriction will not be a direct gag order issued by a federal court. That would be a First Amendment violation. The restriction will be a denial of tax-exempt status for their religious organization, the threat of concurrent investigations by other “concerned” government agencies, the bankruptcy that will come from the legal cost of defending themselves and the destruction of their reputation by a news media callously unconcerned about the First Amendment rights of whom they deem unworthy. If you do not believe that this could happen, then review the court ruling synopsis that denied Bob Jones University their tax exempt status.
Though capitulation may seem the response de jour among our Republican leadership on all issues these days, they can still guarantee both religious freedom and individual freedom in South Carolina by simply adhering to the first principles on which our republic was founded. They can protect our religious freedom by getting the civil government out of the business of defining a religious or personal belief. They can stop it by repealing the 1911 law that gave the state the authority to license marriage in the first place. By doing so, they affirm the freedom of all adults in 21st century South Carolina to pursue their own happiness, including who they want to spend their lives with or how they want to practice their religious beliefs. Many may consider repeal a radical act, but our republic was founded by radicals who knew the true price of liberty.
Excerpts from John Locke’s 1689 tract A Letter Concerning Toleration –
I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have . . . on the one side, a concernment for the interest of men’s souls, and, on the other side, a care of the commonwealth.
The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests.
Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.