Editor's Note: Should it be Government's Role to Decide Who Can Get Married?

Oct 1, 2013

Dana Heupel
Credit WUIS/Illinois Issues
I have never understood why same-sex marriage isn’t an issue that more political conservatives would support. After all, for a philosophy that stands on the principle that government should intrude as little as possible in citizens’ lives, what could be more intrusive than regulating behavior among consenting adults in their own homes?


Yes, for some, there are moral concerns. Many quote Old Testament verses such as Leviticus 18:22, where God, in outlining his laws to Moses, says (depending on the translation), “You shall not lie with a male as one lies with a female; it is an abomination.” But it’s clear that many of those who cite that Old Testament verse ignore others, such as when Moses relates God’s laws to the Israelites in Deuteronomy 22:11, “You shall not wear a garment of different sorts, such as wool and linen mixed together,” or Leviticus 11:7, which forbids eating pork.

Or, they say, government should not sanction what they believe to be immoral behavior. But I’m not sure it’s the government’s place to sanction or disallow any behavior where one party is not victimizing another.

“Marriage” is the loaded word here. Since 2011, Illinois has permitted civil unions, which allow same-sex couples or opposite-sex couples the same rights and protections in Illinois as legally married couples. But the problem is, many other states do not recognize civil unions, and the federal government is still sorting out the recent U.S. Supreme Court decision in United States v. Windsor, which found the federal Defense of Marriage Act unconstitutional. For tax purposes, for instance, the feds will recognize same-sex couples as married, no matter where they were wed, but will not allow those with civil unions or domestic partnerships to file jointly.

Even though some protections are the same for civil unions and marriage, the word “marriage” has very different connotations among gay marriage supporters and opponents. Supporters say same-sex couples should have the exact same rights as opposite-sex couples, and that includes the right to call themselves married. Opponents say that marriage is defined only as a union between a man and a woman and that same-sex marriages threaten the validity of traditional ones.

And I’m not so sure whether most opposition to gay marriage has as much to do with legal issues involving a contractual union between two people as it does with that old-taboo, sex. Few would argue that any two people shouldn’t be allowed to enter into a contract to ensure that they can share finances, comfort each other in the hospital or make decisions during their contractual partner’s physical crisis. And tax laws are so inconsistent in the breaks they offer to various businesses and individuals that one more wouldn’t even make a dent in the deficit. No, I think most opponents’ stances on gay marriage are based on the fact that they believe sex between two males or two females is morally offensive or just plain repugnant. But homosexuality has been around since well before the ancient Greeks, and it will still be around regardless of whether 21st century governments sanction or ban it.

For those and other reasons, I subscribe to a simple solution: Keep government out of marriages.

Sounds improbable, I know, but I’m not alone in this thinking. For instance, best-selling author Rabbi Shmuley Boteach wrote in the Huffington Post more than a year ago:

What if government withdrew from the marriage business altogether and provided only civil unions to two consenting adults wishing to unify their lives, leaving the spirituality of the union to other entities to recognize, name, sanctify and define? These civil unions would equally assure that all couples receive the legal entitlements that have previously been enjoyed by those who have been “married,” such as hospital visitation rights, end-of life decisions, insurance benefits and tax benefits. After all, what business does the government have entering a church, synagogue or mosque to legitimize or define the spiritual nature of a person’s marriage? We are supposed to have separation of church and state in America.

If the couple wishes to have their marriage consecrated to a more spiritual purpose … they will choose to have a religious ceremony in addition to the civil ceremony. …

This proposal might just allow nearly everyone to win, a “one size fits all” solution to the gay marriage narrative that has hijacked the political landscape. ... The benefits to this proposal are, first and foremost, that no one would receive either preferential treatment or any discrimination when it comes to the government’s recognition of the legal rights of the union of any couple. Furthermore, there would be no need to redefine marriage, as each group would have the authority to define or expand the meaning of their union according to their particular religious tradition.

If during the Illinois General Assembly’s upcoming veto session the House sponsor of legislation legalizing same-sex marriage can find at least 60 committed yes votes, it’s likely that representatives will consider the issue. The Senate approved legislation on Valentine’s Day, and Gov. Pat Quinn has indicated he would sign the bill that emerges.

Needless to say, the issue is controversial in the Capitol. Some legislators — from both political parties — are firmly against gay marriage on moral grounds. Others may support it privately but worry that a favorable vote will become fodder for their campaign opponents during the 2014 elections. And some are strongly and vocally in favor.

Crain’s/Ipsos poll published in February found 50 percent of Illinoisans support same-sex marriage, while 29 percent are against it and the remainder are undecided. Across America, more than half — 53 percent — of Americans now believe same-sex marriage should be legal, according a Gallup Poll. That compares with 27 percent in a 1996 poll by the same organization. As of this writing, 13 states and the District of Columbia have legalized gay marriage.

Democratic Rep. Greg Harris of Chicago, the House sponsor, was castigated loudly by some in the gay community after he decided not to call the legislation, Senate Bill 10, during the waning moments of the spring legislative session, saying he didn’t have the votes lined up and some of his colleagues wanted more time to think about it. Many supporters of the bill wanted to get a roll call on the record so that even if the measure failed, they could lobby or pressure those who voted against it over the summer. Harris, however, is experienced enough to understand that the tactic likely would have had more negative consequences than positive ones.

Among powerful interests who are lobbying hard against Harris’ bill are Roman Catholic Cardinal Francis George of Chicago and a coalition of prominent African-American pastors who reportedly influenced the House’s Black Caucus to hold off a vote in the spring. Among those lobbying for the issue, along with the gay community and various social organizations, is Pat Brady, the former Republican state chairman who resigned in May at least partially over opposition to his supportive stance on same-sex marriage. He was recently hired by the American Civil Liberties Union in part to try to persuade members of his party to support the legislation.

If same-sex marriage does come up for a vote in the veto session, it’s highly unlikely that Rabbi Boteach’s thoughts will enter visibly into the legislative arguments. But lawmakers might be wise to keep them in the back of their minds when considering what the role of government is in regulating same-sex marriages and other so-called moral issues.

Illinois Issues, October 2013