On June 26, Peter Boff penned an op-ed for US News & World Report about the Supreme Court’s marriage ruling. Like others on the religious right, he believes that the ruling is a serious threat to religious liberty, and while that may not manifest now, or in the near future, it most certainly will at some point down the road. His arguments, though, are old, tired, and need to go away.
The third paragraph of his piece actually sounds somewhat reasonable:
It’s not as though traditional marriage will now fade away; it’s been doing that for some time already, which is one of the core elements of the argument the opponents of same-sex marriage failed to comprehend. Marriage as we idealize it is not marriage as it is; the proliferation of no-fault divorce laws saw to that. Once an almost certain lifetime commitment – ”Til death, do us part’ – it has become like a garment that can be put on or taken off at the slightest whim.
That’s one of the questions pro-equality groups have asked for a while. Why do the “traditional marriage” folks not say anything about our abysmal divorce rate? Why are some of the most vocal supporters of so-called “traditional marriage” on their second or third marriages? That’s one of the biggest things that makes their argument so hypocritical.
Boff’s op-ed might have made a halfway decent argument if he’d stuck with this vein. He didn’t, though. He then trotted this out:
The 5-4 decision, with Reagan-appointed Justice Anthony Kennedy writing for the majority, is a triumph for the Age of Aquarius over the rule of law and the essential majoritarian principles on which this nation was founded.
Really, Boff? Yes, this country was founded on “majority rules,” but with clear protections for the minority. Our founders recognized the fact that the majority could be just as tyrannical over the minority as could a monarch over everybody. The Constitution, and the court system, both help prevent the majority from trampling the minority’s rights simply because they feel like it.
Let’s face it, that’s what opposing marriage equality is coming down to. “We don’t want teh icky gheys to be able to sully our Right, Good and True™ institution of marriage.”
What if a non-Christian majority was deciding on which rights Christians should have, through their state legislatures and the federal government, and denying them certain fundamental rights just because they could? What would these people be saying then?
That paragraph ended with:
Sad to say, America is probably not ready for the scale of change the ruling will usher in. New rules will have to be written which – if recent efforts are any guide – will run into direct conflict with traditional American notions of religious liberty that will likely be given as short shrift by the courts as traditional marriage.
America wasn’t ready for the change that Loving v. Virginia, or the Civil Rights Act, ushered in either, and we survived both of those okay. Perhaps we aren’t ready, and perhaps new rules will run into direct conflict with religious liberty. In a country like ours, there are inevitably problems with conflicting rights. That’s where the courts must decide whose rights prevail, or how those conflicting rights must live in concert with one another.
Boff brings up the idea that churches that oppose same-sex marriage might find themselves the subjects of lawsuits, or have their tax-exempt status revoked, because they refuse to recognize a gay couple’s union or perform a same-sex wedding (or allow one to even happen in their building). He may well be right; someone will probably try to sue a church at some point for refusing to hold their wedding, or for refusing to allow them to join the congregation. That’s a foregone conclusion; people will misinterpret SCOTUS’s ruling that way.
However, in that case, the church in question, the minister in question, has a clear First Amendment protection. Under current law, it’s not likely that such a lawsuit would get very far, because the church is a religious institution. Its mission is religious in nature, so its rights are protected. At least Boff acknowledges that point in his piece.
Is that likely to change anytime soon, though? Not really. What Boff has failed to understand is that if we wait on something like this until we’ve anticipated every last possible consequence, and answered every last possible question, equality will never happen. Sadly, that’s what the religious right wants. They want to tie up these things in endless questions that courts and lawmakers must answer to their satisfaction, so that it never happens at all.
Incredibly enough, Boff invalidates his own argument when he says this:
Those who say ‘no, never’ to such ideas can remember a time when ‘no, never’ also applied to the recognition of the right of marriage as one protected to all persons under the 14th Amendment. Things and times change – and as we change with them we must consider the ramifications for tomorrow of what we do today.
Here’s why that invalidates his entire argument: If the 14th Amendment protects the right of marriage to all people, then it protects it for the LGBTQ community as well. What about this do these people not understand? Or, if that’s not what he meant, then what did he mean?
Boff cites Senator Mike Lee’s (R-UT) statement on the matter, which brings up the “five, unelected judges” part, as though everything that happens in this country should be subject only to the decisions of elected representatives. Again, one of the things the courts do is protect the rights of the minority, which the elected legislature will trample periodically.
The majority cannot decide who gets to enjoy which rights. If marriage is a fundamental right—and the Supreme Court has said it is numerous times—then they can’t use religious liberty as an excuse to deny that right. The religious right may need to work to ensure that religious institutions remain protected, yes, but they can’t use that argument to deny a right to people they think shouldn’t have it. The only thing that Lee, and Boff, got even slightly right here is that the debate should now shift to rights of conscience.
But, Boff didn’t stop there. He’s afraid that the whole debate will stop because one Pennsylvania newspaper will no longer print op-eds, or letters to the editor, expressing opposition to same-sex marriage. Other newspapers may follow suit, and they can. As far as the editorial boards of any paper that does that are concerned, the discussion is over, and printing those op-eds could be seen as redundant, or even regressive.
There are other venues for expression, and it’s not likely that all media outlets will do that.
Finally, Boff brought up the slippery-slope thing we’ve been hearing. What about marriages between close blood relatives? What about polygamy? What about, what about…? These are questions that the courts may have to consider at some point, but how much of a problem are they, really?
The definition of marriage has changed many, many times over thousands of years. It will continue to do so. The “one man, one woman” version of marriage is a relatively recent development in human history. It’s not what marriage has always been, contrary to what these people seem to think.
It’s also not the only stone in the foundation of Western society. Other countries (like Canada) have recognized same-sex marriages for years, and they haven’t fallen apart. Why is it such a given that the U.S. will? Boff may think that his argument is new and novel, but it’s really just the same tired stuff we’ve been hearing from marriage equality opponents the whole time. It’ll be interesting to see what they say when same-sex marriage doesn’t destroy us.