On Friday, June 16, the United States Supreme Court handed down its decision in the case Obergefell v. Hodges, known popularly (or infamously) as "The same-sex marriage case." In a 5 to 4 decision, the court ruled in favor of James Obergefell, and against the State of Ohio (with Governor John Kasich identified as the original defendant in the case Obergefell v. Kasich, the Ohio Director of the Department of Health, Richard Hodges, became the defendant). The original suit concerned Mr. Obergefell's claim to have his marriage (established in the State of Maryland) to his same-sex partner John Arthur (who was dying of ALS) recognized in Ohio for the purposes of having his name entered on the death certificate as the decedent's spouse.
It seems to me this was the wrong decision, and it's especially regrettable because the issues could have been resolved in terms that would be beneficial to all concerned. Now, however, the Supreme Court has not only continued to stretch (a) the application of the 14th Amendment beyond its clear original intent and (b) the government's interpretation of the term "natural rights". The decision has failed to resolve any of the actual issues of the case, but, instead, substituted a new set of divisive issues to replace an old set of divisive issues.
Consider what Mr. Obergefell (and his partner) wanted: they wanted the State of Ohio to recognize their partnership as equivalent, as far as the state was concerned, to that of any other partnership involving sexual connection. There are, obviously, many issues that flow from that desire that ultimately will never be resolved. Nevertheless, the following can be resolved.
- If the State of Ohio (and all other states and levels of government of the U.S.) get out of the business of regulating marriage, as such, (which, indeed, many people regard as a religious, or at any rate quasi-religious, institution) and no longer issue licenses that use the term marriage (using, perhaps, instead, "civil union") and retain all of the government-conferred benefits and responsibilities accruing from such a partnership, then government can continue to honor the popular principle of "separation of church and state."
- If ministers of religious communities no longer automatically receive the authority to officiate at state-recognized civil union ceremonies (of whatever nature), but must apply for such authority separately and on their own (or, in legal terms "severally"), they are free to do so as the state and the minister shall agree.
- Likewise, ministers of religious communities can remain aloof from such state-defined ceremonies, licensing, etc., if they so choose. Clearly there are some religious communities that have no religious interest in participating in the establishment of same-sex unions, whatever terminology is chosen to describe them. Obviously there are many individual people who have no religious motivation for doing so.
- Under the above rules, both those who honor same-sex partnerships and those who don't can be accommodated. At a minimum, however, when the state (any state) grants a same-sex union license or certificate, the rights, privileges and responsibilities accruing from that license or certificate are bound to be honored, unless such a right or responsibility overreaches into religious territory, as it would and does if the state calls it "marriage".
- The natural and civil interests of Mr. Obergefell could have been fully honored in the State of Ohio (or any state or locality, obviously) under the above terms. Whether or not such arrangements would have been emotionally satisfying to Mr. Obergefell (or Mr. Hodges) is beside the point from a purely civil perspective.
In view of the above analysis, I propose the following:
- All levels of government in the U.S., from the federal down to the local level, should get out of the business of regulating "marriage" as such, in particular to honor a long standing principle of separation of church and state, and to honor the First Amendment to the U.S. Constitution, which states, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Clearly the government telling a religion how it must understand marriage is an example of such infringement.
- All licenses or certificates issued by government previously, which include the term "marriage" should be recalled and replaced, substituting a non-religious term, such as "civil union" or whatever generally satisfactory term shall be agreed upon.
- In the absence of determining an agreed term for such licenses and certificates, a given state might propose, as an alternative, that individual couples enter into contracts, mutually conferring specific rights and or taking on specific responsibilities. Contract law is very flexible that way and can have equivalent power in settling issues such as the one encountered by Mr. Obergefell and Mr. Arthur. Since it's obvious many such contracts will be needed, legal firms can establish cookie cutter contracts easily entered into by interested parties at minimal expense. No one need be short-changed from a civil perspective.
- Unless and until governments find a way to comply with the requirements of the First Amendment, religiously affiliated ministers may, either singly or collectively, apply to be removed from the rolls of those empowered by the state to confer such certificates or sign such licenses. In order to comply with the First Amendment, states must honor such requests, when presented.
- Unless and until governments honor such requests, ministers may (and, in many cases, should) refuse to sign such licenses or certificates for anyone (regardless of whether for a heterosexual or same-sex couple or any other conceivable combination) so as not to be found discriminating, in their use of such authority, against a particular class of individuals.
Sadly, the above considerations do not resolve all of the issues affecting our highly diverse and deeply divided civil order. There is also the vexing problem of adoptions. I propose the following as an effort to begin to resolve these issues.
- The matter of adoption arises naturally when one or both parents die, become incompetent or otherwise forfeit the natural rights and responsibilities of parenthood. The case of a child conceived in rape or a child conceived by a couple, the female of which has not yet achieved an age of responsibility (a case which is generally covered under the term "statutory rape" even when both partners were "willing"), should also be considered here in the best interests of the child.
- The natural parents of the child have a natural interest in the child's welfare and future life. Such interest can be distorted or damaged by instances such as are covered under the first bullet. Nevertheless, the government should presume such natural interest unless and until the contrary has been established by a court of law (as would be the case if, for example, a finding of rape or incest has been established).
- Therefore, in cases where these natural rights have not been found to be abrogated, no child should be placed in adoption by an individual, couple or group without the permission of his or her natural parent and/or legal guardian.
- In order that the newly established rights of same-sex couples should be honored, and without prejudice to religious institutions, the government should get out of the business of subsidizing any and all adoption agencies or firms as well as any orphanages or foster parents or half-way houses that are granted temporary legal custody or power of attorney over orphans or children whose parent or parents are found incapable of assuming or unwilling to assume their responsibilities and privileges as parents or guardians.
- Governments may continue to exercise their responsibility of overseeing such institutions to ensure that the natural needs of children (food, shelter, clothing, etc.) are not neglected and they are safe from abuse (physical, emotional, etc.).
Even the above cannot address all possible issues that divide society regarding the natural rights of same-sex attracted individuals, etc. There is still the thorny matter of education. It strikes me that less mutually acceptable accommodation is possible in this arena, for the simple reason that there are religions that take the Hebrew scriptures seriously (such as Orthodox Jews, Catholics and Muslims) and honor the wisdom found in Leviticus, chapter 20, for example, whereas there are sects of these same religions that do no regard such teachings as acceptable, in spite of their admitted historical affiliations. The divisions in society regarding such religious teachings run very deep, and may indeed one day induce violent internecine conflict. The imposition of government rule to establish the hegemony of one sect against others would undoubtedly fuel such violent conflicts. The same is obviously true for the divisions among Christian sects regarding, for example, the import of Romans, chapter 1. It's obviously also the case that those who describe themselves as secular humanists come into essentially unresolvable conflict with what we might terms as the traditional or orthodox branches of the Abrahamic religions (Judaism, Christianity and Islam, to say nothing of such offshoots as the Latter Day Saints, Jehovah's witnesses, Unitarians, Baha'i, etc. who are clearly Abrahamic in historical origin but who do not, for a variety of reasons, fit readily into one of the three main categories).
In order to promote the peaceful coexistence of people in these religious categories (something which, it should be admitted, is inherently difficult to establish), I propose the following principles.
- The natural responsibility for the education of the young begins with their natural parents, and devolves to such guardians who succeed to that responsibility under circumstances such as have already been considered above.
- The the extent that governments choose to be involved in the education of the young, the duty of parents should not be supervened under ordinary circumstances unless and until the courts should decide (for reasons such as the above) that the parent or parents forfeit their responsibilities. It should go without saying that such changes should not be determined by political or social fads, especially those that conflict with the above principles.
- As such, government educational institutions should be regarded as agents of the parents before being regarded as agents of the government, when it comes to the education or treatment of specific children. No child should be subject to government "propaganda" as such. Rather, government educational institutions should provide services such as are found needed to supplement the educational interests of its citizens in the absence of private or religiously affiliated educational institutions or professionals.
- No tax should be levied for the purpose of financing the education of its citizenry that is restricted solely to the discretion of a government established educational entity or program. Rather, such funding should be available, at the discretion of parents, for education provided by private entities, including religiously affiliated institutions or professionals.
- No parent shall be obliged by law to entrust their child to any educational institution, whether public or private, but may choose to educate their child in home-based instruction or choose an institution or professional to provide such education in their stead.
- No specific governmental entity, whether federal, state or local, shall be required by law established by a higher level of government, to ordain, establish or fund, through taxation or any other means, an educational institution, professional program, licensure, etc. When there is a compelling reason to establish such matters at a given level of government, lower levels of government shall be granted the authority to "opt out" when a compelling reason is established. An example of "opt out" may occur when a community that wishes to establish and live under, say, Sharia Law, Mosaic Law, Natural Law, etc. finds that its objectives are hindered or subverted by the educational programs or objectives established by a higher level government authority.
To be clear, I regard these last principles as likely to be found less acceptable in our society, simply because religious principles (and even secular humanist principles) often regard some level of coercion of belief to be a requirement. Most major religions, with the possible exception of Islam, regard the adoption of a religion to be a matter of conscience and a matter to be decided upon by the responsible adult authorities within a given family, and, at least in the case of virtually all of Judaism and Christianity, freedom of religion is regarded as a sacred value.
Religious perspective, whether Judaism, Christianity, Islam, Secular Humanism, etc., naturally enters into the question of sexual morality. This is because sexual morality is a matter that is crucial to the establishment of a viable and flourishing public order. Since that order is enormously complex and often highly volatile and/or delicate, and since humanity has seen fit to explore a wide variety of such orders, whether in the name of religion or secularism, as such, and since the connection of the teachings of these moral authorities with the truth can only be established to everyone's satisfaction when they are proven by the experience of large (i.e., statistically significant) communities so created and affiliated, it would be most prudent to leave such communities to their own devices when it comes to the education of the young. Clearly, there will be exceptions to this in the case of communities that teach their young to take up arms against other communities specifically for the purpose of imposing their community's moral principles.
I think we are bound to admit that it is problematic to decide, ahead of experience, how all such boundaries should be drawn. We may be able to agree, for example, that no community should teach human sacrifice. No community should teach persecution. No community should teach sexual exploitation. Nevertheless, there will undoubtedly be those who claim that communities have a right to protect their young from proselytization from members of opposing communities (saying, for example, that no Rosary-praying person should be permitted to pray in the neighborhood of an abortion clinic — in the chance that it might distress a young woman who has decided to enter the clinic and obtain its services — or no Christian should be permitted to teach that same-sex sexual relations are sinful — in the chance that a homosexual child may be confused or hurt — or no child should be subjected to watching a film such as Adam and Steve or Bob and Carol and Ted and Alice — on the grounds that their young minds are not yet properly formed to recognize the moral difficulties raised by the relationships presented in them). There will undoubtedly be zealots in every group who find it impossible to honor such boundaries. Such inevitable issues suggest that affiliated communities should seek to establish, as far as possible, independent governmental enclaves.
In other words, conflicts arise naturally and are ultimately unavoidable. Let us at least agree that they should not lead to aggressive violence. If you pray, pray that these conflicts will be, as far as possible, non-violent, peaceful and productive of worthwhile dialog.