Same-Sex Marriage: Conflict within Black America

By Syreeta L. McNeal, CPA, JD

“I now pronounce you husband and wife. You may now kiss your bride.” Well, now in Massachusetts and California, when two people of the same sex tie the knot, it probably will be appropriate to classify them as “I know pronounce you A and B. Either of you may kiss each other.” Does this sound awkward to you?

Black America has struggled with acceptance of homosexuality and acknowledgement of same-sex marriage. Recently, the California Supreme Court overturned the state legislature’s ban on same-sex marriage. On television, you could see blacks partake in the same-sex marriage ceremony sanctioned by the state of California. Black America’s reaction to the California Supreme Court ruling sanctioning same-sex marriage in their state is sparse at best. At issue is whether marriage is a religious ceremony or a state sanctioned ceremony. Well, the answer to that question is it is a combination of both; hence, the conflict arises.

Marriage originated from religious customs and practices. The first recorded use of the word "marriage" for the union of same-sex couples occurred during the Roman Empire.[1] In the year 342, the Christian emperors Constantius and Constans declared that same-sex marriage to be illegal.[2] In the year 390, the Christian emperors Valentinian II, Theodosius and Arcadias declared homosexual sex to be illegal and those who were guilty of it were condemned to be burned alive in front of the public.[3] Like historic times, all but two states, Massachusetts and California, outlaw same-sex marriages. Even though we emphasize separation of church and state in the United States, states regulation of marriage shows that parts of the church and state are interwoven and not separately treated within the United States for institution of marriage.

In general, religious groups are against same-sex marriage. At the heart of this view, is a biblical restraint from practicing any form of sexual sin. For example, the New Living Translation version of I Corinthians 6:9-11 states as follows:

9 Don’t you realize that those who do wrong will not inherit the Kingdom of God? Don’t fool yourselves. Those who indulge in sexual sin, or who worship idols, or commit adultery, or are male prostitutes, or practice homosexuality,

10 or are thieves, or greedy people, or drunkards, or are abusive, or cheat people—none of these will inherit the Kingdom of God.

11 Some of you were once like that. But you were cleansed; you were made holy; you were made right with God by calling on the name of the Lord Jesus Christ and by the Spirit of our God.

I know when people ask me to partake or accept this different sexual lifestyle, I usually respond that I don’t plan on being Lot’s wife and turn into a pillar of salt when I was told not to look at (or participate) in the destruction of Sodom and Gomorrah. For those who are not familiar with Sodom and Gomorrah, Sodom and Gomorrah are two biblical cities that God destroyed because of sexual deviancy and wickedness from all types of sexual activity, including homosexuality. This response usually gets some laughs, but it touches the core of the religious argument. For those who are trying to live righteously, we try to live by these rules. I know for myself, I am trying my hardest to not fornicate. Now, people are asking me to accept same-sex marriage which is a validation of homosexuality that is taught to be morally wrong? There will always be an internal conflict for me and many members of religious groups. So, for those promoting the religious community’s acceptance of same-sex marriage, this will nearly be an impossible conversion to make because of the teachings espoused.

Inaccurate Comparison of Same-Sex Marriage to the Civil Rights Movement

Another thing that disturbs me regarding the argument for same-sex marriage is the comparison of those in the gay community of their struggle being similar to the Civil Rights Movement. This argument is flawed for several reasons. First, the legal basis to challenge laws constitutionally is not the same. There are three levels of review a court uses to decide if a law is constitutionally invalid under equal protection analysis and to fundamental rights in due-process analysis of the 14th Amendment of United States Constitution: (1) strict scrutiny, (2) intermediate review, and (3) rational basis.

Strict scrutiny is the highest standard applied to suspect classifications (e.g. race) and fundamental rights (e.g. voting rights). Under strict scrutiny, the state must establish that it has a compelling interest that justifies and necessitates the law in question. The Civil Rights Movement cases presented to the United States Supreme Court were based on strict scrutiny. In Loving v. Virginia, the United States Supreme Court held that the state law banning interracial marriage was unconstitutional by applying strict scrutiny review.[4]

The second level of review by the courts is intermediate review. This is a standard lying between the extremes of rational-basis review and strict scrutiny and applies to gender and legitimacy issues. Under intermediate review, the classification must be substantially related to the achievement of an important governmental objective to pass constitutional muster.

The final level of review by the courts is rational basis review. This is the catchall review for classifications that do not fall into either strict scrutiny or intermediate review. For example, state laws on marriage generally fit this category. Under rational basis review, the classification must be rationally related to the achievement of an important governmental objective to pass constitutional muster. It is a very low standard and usually anything the state shows that is reasonably related to the law will meet the test.

Currently, it is debatable as to how homosexuality should be classified under constitutional standards of review. It is not applicable to strict scrutiny because it is not a suspect classification and not considered a fundamental right. It probably applies to intermediate review because it has gender overtones to it. However, there is a strong argument by the states that same-sex marriage should be reviewed under rational basis as well. Rational basis review is probably the main reason why state courts upheld the state legislatures banning same-sex marriage in the remaining 48 states. But, the law is unsettled on how same-sex marriage should be classified.

Second, allowing same-sex marriage will open the flood gates for more forms of immorality to be able to get a marriage license from the state. Religiously, homosexuality is a sexual sin. Another sexual sin that is considered immoral is bestiality. Bestiality is when a human being has sexual relations with an animal. Currently, bestiality is banned in all 50 states. So if we accept advocates of same-sex marriage that we should allow states to let homosexuals obtain a "marriage" license, then I argue we should also allow human beings to get marriage licenses with their domesticated animals as well if they choose to have sexual relations with them. What is the argument against expanding the state laws to include marriage for bestiality? Both homosexuality and bestiality are considered immoral. So, lets expand the argument to allow people to marry their dogs and cats as well. I think Catherine the Great would have loved marrying her horse that she had sexual relations with even though she died from it. By allowing same-sex marriage, states would probably feel compelled to allow other forms of immorality, like bestiality, to be able to get a license to get married. This creates a slippery slope that most rational human beings have difficulty coming to terms with.

Finally, people should perceive any comparison of the struggle for homosexuals to get a marriage license to the civil rights movement as a slap in the face to anyone who is of a different race or ethnicity from the majority culture. Private acts of affection should not be affiliated with people’s public appearances. A person can’t hide a wheel chair if they are disabled when entering the work force or public place. Neither can an African-American hide their skin tone when entering into the work force or public place. Unlike a disability or race, many people can hide the fact they are a homosexual when they enter the work force or other public places in society. Who you have sexual intercouse with should not be issues for work place or public discussion. It is a private act and the constitution does protect heterosexuals and homosexuals alike to keep their personal life private in a public setting. So, for those who think that same-sex marriage is equivalent to the legal cases that ended racial discrimination, this is not accurate at all.

Advocate of Civil Unions

Now, advocates of same-sex marriage might think my view expressed above is against homosexuals being able to join with their respective partners. That is not true. I am actually a proponent of civil unions. These legal unions preserve the separation between church and state. Unlike marriage which overlaps between the church and state, civil unions are same-sex unions created by the state only. Connecticut, Vermont, New Jersey, and New Hampshire have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state (though not federal) law to same-sex couples.[5] Maine, Hawaii, the District of Columbia, Oregon and Washington have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilities of marriage under the laws of those jurisdictions.[6]

So when it comes to same-sex marriage, I have to argue against its implementation. However, a more appropriate alternative to compromise the two competing forces is to allow civil unions for those of the same-sex to be created by the state. If in 1791, colonies from the North and South can come together to create a compromise document of the United States Constitution, then surely proponents for and against same-sex marriage can come to a compromise. A compromise that preserves each group’s view is a civil union. It preserves marriage to retain its religious emphasis and allows those who would be “immoral” in a religious light to share in similar benefits that married couples share.

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[1] http://en.wikipedia.org/wiki/Marriage#History
[2] Id.
[3] Id.
[4] Loving v. Virginia, 388 U.S. 1 (1967).
[5] http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States
[6] Id.