President Obama's recent statement that he supports marriage equality along with the federal appeals court's recent decisions that Prop 8 and the federal Defense of Marriage Act are unconstitutional appear to be gains for the gay and lesbian community. But neither the president nor the courts stated that gays and lesbians have a fundamental right to marry -- something that the U.S. Supreme Court says exists for heterosexual couples. Rather, both cited a state's power to regulate domestic relations within its borders. That's a problem. Once marriage equality is put to a vote -- as it was recently in North Carolina and will be again in Washington, Minnesota and Maryland -- the churches become lobbyist and the Bible becomes the foundation for oppression.
I know because I am a cradle Catholic. I attended 12 years of parochial school, played the organ for Mass throughout my childhood and briefly contemplated joining the convent. Five of my nine siblings were married in our childhood parish church, the same church where the funeral masses for my parents and my sister were celebrated.
I am also a lesbian who is in a committed, loving relationship with a woman. I have no illusion that I will be married in the same church as my siblings. I know that the local parish priest would -- and legally could -- refuse to marry me. While I don't agree with the Catholic Church's position on homosexuality or marriage equality, I also don't much care to debate it. Theologians have taken a variety of positions on the issue. But the church's position on marriage should have nothing to do with the state's decision to legalize my union and give me access to the myriad of government benefits associated with marriage.
Whether the church should grant me the sacrament of marriage is quite a different question from whether the government should legally recognize my marriage. The Catholic Church has always had restrictions on who could marry. It won't sanction a marriage between two individuals in which one or both are divorced, yet the government will allow those same individuals to marry. The church has restrictions on certain inter-faith unions, yet the government doesn't even ask about religious beliefs when issuing a marriage license. The church prohibits adultery, yet the government rescinded similar laws condemning such conduct decades ago. And we all know how the church feels about contraception, yet anyone can walk into a local drugstore and purchase a condom without government reproach. The government's position on these issues does not interfere with the church's ability to preach that they are immoral. Nor should the church's position on these issues dictate the government's legislative agenda.
We should all be troubled when our government leaders cite their religious beliefs and the Bible to deny people access to basic rights and government benefits. Oppressors have often used religion and the Bible to justify their conduct. The Bible was used to support slavery. Jefferson Davis, the president of the Confederacy, declared that slavery was established by decree of God, that it was sanctioned in the Bible, and that it had existed in all ages. Sound familiar? God was cited as the source for the prohibition of interracial marriage. In Loving v. Virginia, the trial court judge upheld Virginia's miscegenation laws because God never intended the races to mix. That, too, has a familiar ring. The Bible has been used to support the proposition that women are inferior to men. In the Book of Leviticus, the same book often cited for God's condemnation of homosexuality, women are literally valued less than men. Congress attempted to correct this inequity with the Lily Ledbetter Fair Pay Act.
Whether a particular church or an interpretation of the Bible declares something to be "immoral" should be a basis for a sermon from the pulpit, not a basis of our nation's laws. And nothing in the marriage equality laws prevents any church from refusing to marry me or from standing before the congregation on Sunday declaring that my marriage is immoral. Yet the Catholic Church wants to imbed its beliefs in the nation's law to restrict my freedom, to deny me access to the more than 1,000 federal and state benefits associated with marriage. How does my access to inheritance rights affect any church? How does my ability to file a joint tax return interfere with religious freedom? How does my ability to obtain Social Security benefits upon my spouse's death undermine the institution of marriage? Can someone explain that to me? And can you do it without citing the Bible as the justification?
Jackie Gardina is a Professor of Law at Vermont Law School. She will be teaching at Santa Clara University Law School next year.