INVASION OF THE QUEERS
Jerry Harkins

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
—Senate Joint Resolution 40, 2004


I would argue that the future of our country hangs in the balance because the future of marriage hangs in the balance.
— Rick Santorum (R., Pa.), The New York Times, July 14, 2004


Six senior clerics gathered recently in Jerusalem in an attempt to keep the queers from staging their World Pride Festival there. All tried to disguise themselves by wearing funny costumes, especially one guy wearing what looked for all the world like a dirty Ku Klux Klan hood. One attendee, Rabbi Yehuda Levin, of the Rabbinical Alliance of America, put this “spiritual rape of the Holy City” succinctly. He said, "This is not the homo land, this is the Holy Land." His mother always thought he had a gift for language.

In case you hadn’t noticed, organized religion does not like gays. Right now, its displeasure is concentrated on the “issue” of gay marriage which drives it representatives up the proverbial banana tree. The argument of the Know Nothings comes down to this: if you let the nose of gay marriage into the tent of middle class morality, you will destroy the institution for the rest of us. Since marriage is the basic unit of society, our country’s future will be compromised or worse (think Sodom and Gomorrah). Senator Santorum is not the only person who purports to believe this, not by a long shot. Nor is his fanciful notion that the future of the United States hangs in the balance the most absurd statement of that belief. Speaking of a newly passed state law allowing same sex marriage, Assemblyman Ray Haynes of California said, “We are throwing the dice and taking a huge gamble, and we are gambling with the lives [of] future generations not yet born.” In the eighth grade a nun told Mr. Haynes that, if he masturbated, hair would grow on the palms of his hand. He was so scared, it stunted his intellectual growth which is why he can talk about future generations not yet born.

But the honorable Santorum is a United States senator, a member of the “world’s greatest deliberative body” and this idea is a contender for the stupidest public policy position ever taken. It is also the most bigoted such position since the downfall of Jim Crow and, finally, it is symptomatic of the psychosexual paranoia that characterizes the religious right. But stupidity, bigotry and sexual perversion are beyond the scope of this essay. My concern here is at once simpler and more formal. I want to know precisely how gay marriage threatens straight marriage. What exactly is Senator Santorum worried about? Precisely how will the United States of America be destroyed if we fail to adopt a constitutional amendment banning gay marriage?

Some things do threaten marriage. No fault divorce is high on the list. Adultery is right up there in the top ten. The Internet makes the cut because it facilitates meeting and flirting online which leads to adultery and divorce. Even children threaten marriage by giving couples a whole new list of things to argue about and a whole new set of financial pressures. Do we need a constitutional amendment banning divorce, adultery, the Internet and children? Do any of these evils threaten the viability of the nation? Or is it that Republicans think our citizens must not be exposed to the attractions of gay marriage lest they all be tempted to abandon their pedestrian heterosexual attachments? Do gays have more fun? Is gay contagious? Or is Mr. Santorum’s fear more basic? Maybe he really is worried that God will strike the United States with fire and brimstone.

Could be. These people have rich fantasy lives but, in this case, I suspect we are dealing with just another tiresome example of a majority fearing a minority and trying to suppress it. For obvious reasons, the Yahoos haven’t thought the issue through to anything like a persuasive answer. It is a simple assertion meant to scare you, especially if you trust the likes of Pat Robertson and Rick Santorum. Between the defective major premise that “gay marriage is evil” and the nonsensical conclusion that “gay marriage will destroy America” is a huge chasm with no logical bridge to span it. It isn’t a case of the undistributed middle. There is no middle. There is instead a theological bridge which amounts to nothing more than, “I was chatting with God the other day and he said so.”

As always, the elect feel compelled to justify their discrimination on religious grounds. Before the Civil War, Southern Christians developed a biblical justification for slavery based on the Noah story. You may recall that one day Noah’s son Ham came upon his father sleeping off a hangover in the nude. When the old man got up, he was so chagrinned he immediately condemned Canaan, one of Ham’s sons and his own grandson, to a life of slavery. Okay, this is a crazy story but the slaveholders concluded that their slaves were descendents of Canaan and that their dark skin was the “mark of Cannan.” The logic behind this conclusion is elusive except for the fact that it was the logic of the powerful. Today, a very similar mental quirk informs the case for a ban on gay marriage.

It is true that the Bible, especially the Old Testament, is hard on gays, calling for their summary execution. I haven’t heard any Southern Baptists going quite that far, but I wouldn’t be surprised insofar as they believe the Bible is the inerrant word of God. But I digress. Let’s accept, for the sake of argument, that the God of the Christians—that is, the God of love—hates gay men or, at least, the things gay men do. They are, therefore, on their way to hell, so why does anyone care whether or not the state lets them get married? Mr. Santorum should ask next time he speaks to Jesus.

Bubba, I tell you this: if you take your sexual morality from the Bible, it’s hard to see how anyone can avoid the gates of hell. If national survival depends on the Bible, then we need an amendment banning a long list of things from fornication to in vitro fertilization. We need to add an S&M clause to the Eighth Amendment to allow the whipping of male and female slaves although not to death. I know Senator Santorum is not much of an historian but his law is going to need fierce teeth if it is to avoid the fate of the Eighteenth Amendment. I mean Prohibition was the greatest public policy failure of all time. Maybe we’ll have to revert to stoning the bastards to death. While we’re at it, we should probably outlaw remarriage after divorce. With the provision that, if you’re already remarried, the new marriage does not have to be recognized in Texas.

There is a significant element of hypocrisy in all this. The church says it is in the business of saving souls or a least the souls of the straight. But there is a 14-year old girl, Shay Clark, who has been expelled from the Ontario Christian School in California. Was she getting bad grades, disrupting classes, cheating on exams or committing rampant plagiarism? No, her crime was having lesbian parents. Superintendent Leonard Stob wrote to Tina Clark, the girl's biological mother that school policy requires that at least one parent may not engage in practices "immoral or inconsistent with a positive Christian life style, such as cohabitating without marriage or in a homosexual relationship." Do you think Mr. Stob thinks it would be okay if only one of Shay’s parents were a lesbian? (Or, for that matter, if only one were married?) Do you think he’s ever heard of Jesus Christ? I mean the part about suffering the little children to come to me and forbid them not for such is the kingdom of heaven? I can’t find anyplace where the Bible says eternal damnation awaits those whose parents are gay. I may be wrong so you better ask Pat Robertson or Lennie Stob. If the latter’s letter to Shay’s mother is any evidence, he is a moron in addition to being a hypocrite so he may not know either.

You don’t have to write me outraged emails. I know this is all one big reductio ad absurdum. But so is the logic of the gay marriage amendment, based as it is on the fallacy that gay marriage threatens straight marriage. Now I admit that I’m a little queasy about the word marriage itself which has its roots in Greek and Sanskrit words suggesting boy and girl. I also think that marriage is a sacred institution which means to me that the government of the United States has no business messing with it. Both Church and State have legitimate interests in sexual relationships but they are not the same interests and they don’t even overlap much. I would be happier if all couples, straight and gay, would first register with the secular authorities as, say, domestic partners, thereby gaining all the rights and responsibilities the law now imparts to married people. Those wishing a church wedding would then be free to get one from any church willing to provide it. With or without the semantic nuance, this is the way it is done in Canada, Belgium, the Netherlands, Spain and Great Britain.

And it would pretty much solve the problem except for the boogie man argument claiming that the logic of gay marriage would apply equally to plural marriage and incestuous marriage. It might. Today it is generally thought that there is a legitimate public health reason for the state to prohibit both. Different jurisdictions ban marriages between persons of different degrees of consanguinity in order to reduce the probability that persons who carry identical genetic faults will produce offspring with the same fault. With the advent of genetic screening, this is less of a problem than it used to be although most societies still do not permit the kind of incestuous relationship Lot had with his daughters or Pope Alexander VI had with his daughter Lucretia Borgia. As to plural marriage, many societies have practiced it and many still do, notably societies in the reddest of states, Utah, Colorado, Idaho and Texas. We in the United States forbid it, not because it violates any biblical precept (the Bible smiles on plural marriage), but because we think it constitutes abuse of women and children. It may but it is nowhere near as abusive as alcohol as a cause of family discord. I guess I come down against plural marriage but it falls well within the pale of my live-and-let-live philosophy of life.

My guess is the sexually repressed religious right hates to see anybody having a good time in bed. So they issue their fatwas commanding everybody to cease and desist. Don’t ask me for a reason. Just follow orders because I give them. It is, in short, the last argument to which fools and kings resort.

What is marriage other than a contract witnessed and sanctioned by some representative of the community? It is a remnant of Babylonian and Jewish property law (“…to have and to hold”). Our ancestors demanded ownership rights so that a man could be reasonably certain his wife’s children were his also. This has evolved into society’s mechanism for promoting and regulating procreation, objectives now abandoned even by China. But the state does have a legitimate interest in children and in encouraging parents to fulfill parental responsibilities. As a last resort, the state must protect children against crazy or abusive parents, assure that they have access to a decent education, insist on minimal school attendance, and see to it that the interests of minors are represented in divorce and other legal proceedings. It has arguable interests in broader areas of child welfare: health, nutrition and labor are generally thought to be among these. Finally, the state has the right and obligation to oversee the disposition of assets when there is a dispute among heirs.

The church, on the other hand, may or may not take an interest in any of these matters but such interests have no force of law. The church’s unquestioned and exclusive area of interest is the spiritual welfare of its own adherents. If a church believes that the use of condoms is inconsistent with that welfare, it may preach against their use. It can excommunicate members who dissent from its teachings, but it may not incarcerate them or burn them at the stake (except possibly in Texas).

Inevitably there will arise points at which church and state interests intersect and possibly conflict with each other. May, for example, Jehovah’s Witnesses insist that their children not be forced to salute the flag or recite the Pledge? Generally, they may. But a parent living in the Fourth Circuit probably cannot object to the phrase “under God” because mandatory recitation of the Pledge of Allegiance is a patriotic not a religious activity. May Christian Scientists withhold conventional medical therapy from their seriously ill children? As a general rule, no. May Quakers refuse to serve in the military? Yes with the proviso that they perform alternative service. May members of a Native American church use a controlled psychoactive substance in religious rituals? Sure, but the state of California cannot allow seriously ill patients to use marijuana to relieve pain. Could the late Timothy Leary start a church to promote the use of LSD? Of course not. These intersections are always interesting and often revealing as to the social contract. Witness, for example, the efforts of the State of Connecticut to prohibit the use of contraceptives by couples, straight or gay, married or not. The 1879 law was almost never enforced and was challenged whenever it was. It was, however, consistently upheld by the Supreme Court of the United States until 1965. Then, in Griswold v. Connecticut (381 U.S. 479) the Court finally dealt with the basic conflict between individual liberty and the right of the community to enforce majority standards of morality. All recognized that the Connecticut law was what Justice Stewart (in dissent) called, “an uncommonly silly law.” Justice Felix Frankfurter, wrote the majority opinion which has been a red flag for conservatives ever since. In it, he found—some say he invented—a fundamental right to marital privacy in these words:

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.

Frankfurter was obviously not thinking of gay marriage but his logic just as obviously does not exclude it. Indeed over the four succeeding decades, the coverage of his logic broadened significantly. Most recently, the Supreme Court struck down Texas’ anti-sodomy law. In doing so, Justice Kennedy said, “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” (Lawrence v. Texas, 000 U.S. 02-102, 2003). Justice Scalia dissented on a variety of substantive and procedural grounds and was joined by Justice Thomas who, citing Griswold, added this thought:

I write separately to note that the law before the Court today "is ... uncommonly silly.  If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."

Progress comes slowly and is never without occasional backsliding. But it would be blind to deny that gay rights have come a long way since the Stonewall revolt of 1969. It is reasonable to project that anti-discrimination laws will increasingly be applied to gays and lesbians and, one way or another, will become normative nationally. They already serve in the military and the ministry albeit under widely different conditions. They teach in the public schools without a hint of the fear and animosity they encountered as recently as 1960. They are featured in popular television programs, on the stage and in films of all kinds. They are still subject to a degree of witch hunting as, for example, when Jerry Falwell and Pat Robertson blamed gays for the wrath of God which led to 9/11. (Again, it is a strange God who employs the slaughter of the innocents to make a point.) But Falwell, Robertson and their ilk are widely seen as fruitcakes and has-beens (except in Texas).

Given all this, can gay marriage be far behind? The 2004 elections would seem to say just that. Eleven states (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon and Utah) had anti gay marriage amendments on their ballots and all passed by wide margins. In the four Southern states, the amendments received at least three-quarters of the votes. Even in Oregon and Michigan the ban got 59 percent. But there is another bit of social psychology at work here. It used to be said that certain counties in Texas would remain dry as long as the voters were sober enough to stagger to the polls. Gay marriage may be similar. A solid majority of the American electorate vehemently opposes the idea on moral grounds. But live-and-let-live is also a prominent feature of our social contract. I would argue that recent history has brought the tipping point within reach. For example, on two consecutive days, a trial judge in Arkansas struck down a law barring gay couples from being foster parents and the Supreme Court of Montana ruled that Montana universities must offer health insurance to the partners of gay employees. Subsequently, the California legislature revised its family law to sanction same sex marriage although it was widely expected that Governor Schwarzenegger would veto it. In Massachusetts, though, a court decision requiring equality for gay couples led to a fierce fight and the initial approval of a constitutional amendment by the legislature banning gay marriage. A year later, however, the legislature changed its mind and voted 157-39 to reject the amendment. The Republican minority leader who co-sponsored the amendment now voted against it. “Today, gay marriage is the law of the land” he said, and it would be wrong now to take action, “…against our friends and neighbors who today are currently enjoying the benefits of marriage.” A Democrat who also changed his mind said, “When I looked in the eyes of the children living with these couples, I decided that I don’t feel at this time that same-sex marriage has hurt the commonwealth in any way. In fact I would say that in my view it has had a good effect for the children in these families.” These changes of heart were heavily influenced by their constituents of course but it is now certain that more and more single sex couples will join the 6,600 couples who have already been married in Massachusetts.

As we continue to evolve in these and other ways toward a more freedom-embracing society, each incremental step will strengthen us, our families and our country. Either that or our faith in the vision of the founders that everyone has a God-given right to the pursuit of happiness is a sham.

As they say, “We’re queer, we’re here. Get used to it.”