Alasdair has asked me what my position is on same-sex marriage, given that I have blogged several times on the Federal Marriage Amendment (FMA) recently debated in the US Senate. I don't think the issue is as simple as whether I am in favour of same-sex marriage or not, so I'd like to address this in several parts.

The Legal Situation in the United States

This issue arose because of the current legal and political situation in the United States regarding marriage. The US Constitution never mentions marriage at all, leaving it in the purview of the individual states. The only relevant part of the constitution is the 'full faith and credit' clause of the fourteenth amendment, which requires each state to recognise related laws in other states. For example, if a couple is married in one state, another state must recognise the marriage.

However, it is not as simple as that. When the state of Utah allowed polygamy, other states refused to recognise such marriages, and their decisions were eventually ratified by the Supreme Court. The same situation arose with underage marriages, where different states had different age of consent laws.

There is no law in the United States, either state or federal, that specifically allows same-sex marriage. The only US state that allows same-sex marriage at present is the Commonwealth of Massachusetts - it became legal when the Massachusetts Supreme Court ruled that the state marriage law violated the state constitution (not the US constitution) in that it discriminated against same-sex couples. In addition to this, a few other states then enacted laws allowing civil unions of same-sex couples, rather than allowing them marriage.

So, the US Congress then enacted the Defense of Marriage Act, which provided for two things. Firstly, it allowed individual states to enact laws allowing them to ignore the same-sex marriage or civil union laws of other states, and secondly, it provided that for federal purposes (such as for federal income tax), marriage was limited to the union of one man and one woman. Subsequently 40 states have enacted such laws (which is incidentally greater than the 38 states needed to ratify the FMA).

The FMA then arose because of the fear that the Supreme Courts of other states would rule that laws against same-sex marriage were unconstitutional (either against the state or federal constitution). It is an amendment really against activist judges of those courts. That is fundamentally the problem. Activist courts can rule something constitutional or unconstitutional by a simple majority of often only 7 judges. Once that is done, there is no recourse. It is unlike Congress passing a bad law - in that case it can be easily repealed. But if the Supreme Court rules something unconstitutional, the only option is to amend the constitution.

Consequently, I am very much an origionalist, when it comes to interpreting the constitution. I think that the constitution should be interpreted in the light of what it meant when it was written. The reason is simple - if we decide to allow the meaning of the constitution to change over time, who gets to decide what it now means? Generally 5 unelected judges (most of the contraversial Supreme Court decisions are by 5 votes to 4). This is not at all democratic. Instead, by using an originalist view, we limit the scope of the constitution, leaving more decisions to Congress. Those are much more democratic, and can be repealed more easily if they turn out to be wrong.

The worry is that the Courts will allow same-sex marriage as a constitutional right, where such authority should belong to the legislatures of the several states. Consequently, I definitely support the second part of the FMA, which reserves the right to recognise civil unions to the legislatures of the states (i.e. the courts cannot force them to). I would definitely support an amendment that reserved the power to recognise (or define) marriage to the legislatures. Quite simply, this is a decision to be made democratically by the legislature. There is no way that the writers of the constitution intended that it mean that same-sex couples have a constitutional right to marriage.

My View on Same-Sex Marriage

I personally disaprove of same-sex marriage. As a Christian, I think that the act of homosexuality is clearly wrong in the Bible. Consequently I do not approve of same-sex marriage nor of civil unions.

But What About the Law?

But does this mean that I oppose any law allowing same-sex marriage or civil unions? That is not so simple. I personally disapprove of it, but I disapprove of other things that are legal. For example, I strongly disapprove of blasphemy, but I oppose any attempt to make it illegal (in fact, I have previously blogged my support for repealing the current law on blasphemous libel). There is a real difference between morality and legality, and in some circumstances the law needs to be very liberal, even though we would hope that people still make moral decisions. This is particularly true around issues of freedom of association and speech.

However, morality still does have a role in the legal situation. An argument for same-sex marriage (or civil unions) on the grounds that it no longer recognises the reality of present day relationships is I think fairly flawed. The reason is simple - morality does not change simply because our behaviour changes. You wouldn't change the law to allow incest simply because it was common-place (or else why did the men on Pitcairn Island get charged?). We would still say that the Nazis were morally wrong even if they won World War II and succeeded in eliminating all Jews. However, I find the idea of morals without God very difficult to understand. If we are simply the products socio-biological evolution, so are our morals values, and so they become simply a matter of personal taste.

Even if we accept the Christian view that homosexuality is immoral, is it right to discriminate in law against it? Well, I think we have to careful here. New Zealand several laws removing discrimination against homosexuality in 1986 (Homosexual Law Reform Act) and in 1993 (Human Rights Act). I support these - homosexuality should definitely not be illegal, and neither should employeers discriminate on the basis of sexual orientation.

But I am not convinced that same-sex marriage is in the same category. Limiting official recognition by the state and society does not prevent those relationships from occurring (nor should it), and so the discimination alleged here is very different to that dealt with in 1986 and 1993. However, we are in a democratic society, and ultimately it is a decision of the people, even if I disagree with that decision and think it is wrong.

What I particularly did not like was the way the Civil Union Act came to pass. It was not really publicised by Labour before the previous election, and something like this was important enough to go to a referendum. A referendum was proposed, but blocked by the government. It is a conscience question for society as a whole to address, not just for a few elected MPs.

Posted by Dave Bryant at 3:27 PM | Comments (1) | TrackBacks (0)