Out of Egypt:

I would agree with those who support gay marriage that the Founding Fathers (not all of whom were Christian) intended that there be a separation of church and state, in the sense that they did not want to have an established church, as was the common practice in Europe at the time. That being said, I don't believe that the separation of church and state that they intended to institute is the same as how some secularists construe it today.

Though the Constitution and Bill of Rights are primarily based on Locke's theories of human rights and liberty, rather than Christian morality, even the Deists of the late 1700's held many of the same moral principles that Christians held. Furthermore, they were not opposed to a kind of "civic religion" in that they spoke of the deity in general terms or referred to divine Providence. Thus, I doubt they would've supported the current efforts to remove the reference to God from the Pledge of Allegiance or to forbid speakers at public school events from mentioning God, if that is part of their personal beliefs. (It could be argued that civic religion can actually be destructive of revealed religion, since it is too generic, but that is an argument for another time.) Finally, I would think that their support for rights such as freedom of assembly would mean they would stand against New York City's discriminatory ban on religious groups meeting in public schools.

But, of course, all these instances where secularists would argue the church/state wall of separation is being violated are not what prompted this discussion in the first place. The question here is whether one who opposes the government's endorsement of homosexual marriage on primarily religious grounds is violating the separation of church and state.

I would say no, as long as they can relate those religious principles to principles of morality (or logic - "natural revelation" or "natural law", as they might call it) which could be accepted, at least in theory, by people who did not share their religious faith. In other words, if they could make an argument that God forbids homosexual practice because it is contrary to human flourishing, and explain in a way that others could generally accept how it is contrary to human flourishing, then their argument couldn't be categorically ruled out simply because they personally believed it because it was part of what they saw as divine revelation. I believe that such an argument could be made, if one viewed marriage as an institution directed primarily toward the perpetuation of society through the birth of children. That would not be to say that the only reason for marriage is to produce children: there could be other intrinsic benefits of the bond of attachment, as well as benefits that the state provides through granting visitation rights, insurance benefits, etc.

This type of argument could be contrasted with a purely "divine command" theory, similar to Sharia law, where something is forbidden simply because the sacred text says that it is forbidden and any consideration of the reasoning behind the command is beside the point at best. To give an example from contemporary US politics: the Catholic Church, and some other groups, oppose paying for contraception as part of health care coverage, in part because they believe that it contributes to a view of sexual relations as being about pleasure alone and also because some contraceptives can be abortifacient, and thus destroy a fertilized egg, which they see as having the same ontological status as a human, since it will develop into one if its growth is unimpeded. These views are held largely on religious grounds, but I would argue could be theoretically embraced by someone on other grounds. This would contrast with Jehovah's Witnesses and other groups who oppose blood transfusions since they believe it is a violation of their interpretation of the Bible. Since blood transfusions are clearly necessary to the sustaining of life in some cases, whereas contraception is never essential, and the Witnesses' opposition to blood transfusions can be grounded on nothing other than divine command, whereas the Catholics' opposition to birth control can, then I would argue that the Catholics' position should be accomodated for by the state in its regulation of health insurance whereas the Witnesses' should not. In other words, people and institutions should have the right to choose whether they are paying for a policy that covers contraception; they shouldn't have the right to choose whether they are paying for a policy that covers blood transfusions.

I should say that if blood transfusions were never necessary and potentially life-saving - if they were in the same class as, say, breath mints, then the Jehovah's Witnesses would have a right to conscientiously object to supporting them as part of health insurance. People shouldn't be forced to go against conscience if no one else's rights are being significantly harmed. And, to bring it back to contraception, one has to quantify how much others' rights are being harmed, in all dimensions vs. how much people's right to freedom of conscience is being harmed. Depending on how essential one views contraception to be, and how difficult one sees access to it as being without health insurance covering it, one could say that the need of people to have it is strong enough to go against the Catholics' right to freedom of conscience. But to accept the broad argument I am making here, it is sufficient to recognize that there people do have a right to freedom of conscience and that it should be protected if others' rights are not being harmed to an extent that justifies going against the right to freedom of conscience.

So then, the question becomes, assuming that you accept the argument implicit in this analogy, is gay marriage more like contraception or blood transfusions? In other words, are there arguments besides divine command alone that could be made against the right of gays to marry, and are gays being deprived of rights that are due to all US citizens by not being allowed to marry?

As I said above, I believe that it is possible to argue against gay marriage on grounds beyond divine command. A very brief outline of this argument would be:

1) It is a biological necessity for a man and woman to be present in order for a child to be born.
2) If a society does not have produce more children then the replacement rate, then it will not survive.
3) It is desirable for society to perpetuate itself. (Some environmentalists would debate this point.)
4) A society with socialized and well-trained citizens, with access to an adequate support system, is superior to a society without these things, since it is better for people to be happy than unhappy.
5) Societies have instituted marriage in order that children might be born and raised up in a stable environment. This is necessary among humans, unlike other animals, because our sociality and intellectual capacity necessitates a long period of development before full independence. The advantage of this arrangement is that the two people who brought a child into the world have responsibility for caring for him or her until he or she can attain independence.
6) In a society where marriage is open to anyone, and sexual practice is primarily about pleasure, then people no longer have the same incentive to stay together and raise children. Either less children will be born than the replacement rate, or children will be born into arrangements where they do not have the same level of commitment between the parties.

Obviously points 2, 5, and 6 here could be and have been hotly debated, but I don't believe that one would have to make an appeal merely to divine command if one were defending them, even though most people who would embrace this argument might do so as part of a natural law theology where they see God as having been the author of particular social institutions, such that our flourishing is best promoted by being in accord with his design for them.

On the second question, that of whether gays are being deprived of civil rights by not being allowed to marry, the question is more complex. It does seem like they should be allowed to have visitation rights or to share insurance, etc. I don't see how society is benefited by denying them these things. I would question though whether these should be associated with marriage - in many ways, it is their current linkage with marriage that is the source of such conflict.

I would point out though, that just as in the case of contraception, Catholics and others are having their liberty of conscience violated if they are required to pay for contraception as part of health insurance, people opposed to homosexual marriage (or, more broadly, homosexual practice) can have their liberty of conscience violated if it is legal. Two examples of this would be: a) when Catholic Charities had to choose between placing children with gay couples, or ceasing all adoption services in Massachusetts, b) military chaplains being asked to bless same-sex unions.

In a pluralist society, where not all people agree on conceptions of the good, rights will always be in conflict. The question becomes then whose rights are more important and whose rights are being violated more? Is there a way to satisfy both parties? I am not sure.

On the one hand, I don't entirely agree with the "social interest" argument against gay marriage that I outlined above, because my view of human sexuality is possibly more complex than that argument would suggest. Therefore, I see the potential that gays' rights to visitation, etc. need to be considered more, at least in the context of our current pluralist society and secular Constitution. (I would hold open the possibility that in a society where the vast majority non-coercively adopted Christian principles, laws could be different.) But in our current context, I would argue that the institution of marriage itself should be regarded as religious in nature, and thus beyond the reach of the state. People should go to a religious institution that shares their values and belief if they wish to get religious recognition of their relationship, such as that which I believe marriage confers. If they want merely civil benefits, like insurance or visitation rights, then they should go to the state to receive those.

On the other hand, the question of adoption, which I mentioned above, complicates this. Since I believe that God ordained that children be raised within the context of complementarity of a man and a woman, since God designed the genders to be different (though what is part of His design and what is socially constructed is difficult to discern), then I don't believe that homosexuals' right to adoption can be considered in the same light as other rights like visitation which do not infringe on the rights of others. I see it as potentially infringing on the right of children to be raised in a properly constituted home. This may seem like a hateful or bigoted view to some, or at least a view motivated purely by religious views, but I do not see it as such.

I believe that an argument could be made that children derive benefits from having both a maternal and paternal figure in their lives, in such a way that two men or two women could not emulate. Now, it could be argued that this is simply because of social prejudice - that if our society was more accepting of same-sex relationships, children could see the full healthy spectrum of gender identity mirrored by people of a single biological sex, and could go on to lead a healthy sexual life (probably this would presume that if they went on to be gay themselves this would be a healthy sexual life, even though if everyone were gay, then society would cease to perpetuate itself).

I would argue though that even if society accepted same-sex relationships, we cannot escape the confines of biology altogether. Technologies like contraception and in-vitro fertilization could theoretically divorce human sex and human procreation altogether, but I see that as opening the door for great tyranny such as that of Plato's Republic or Huxley's Brave New World, since either the state or corporations would likely become in control of procreation. We can already see how brutal and discriminatory this can be in countries like China where the technology of contraception is used to regulate people's reproductive choices against their will.

It could be said, "What does this have to do with homosexuality? And this could never happen in America." I suppose it is a slippery slope argument to a certain extent, but I feel like I should mention it since it seems like the push now is to make marriage simply about expressing two people's love for each other, with some quasi-religious overtones. And that neglects that marriage traditionally was not just about two people's love for each other, but also about their love for their children. Though gay people could have love for adopted children, I think it is at least possible to argue that harm could be done to those children if they grow up having a distorted view of sexuality.

Am I making a circular argument here in saying that they could grow up with a distorted view of sexuality, since that presupposes that homosexuality is not normative? I don't believe so, because my intent in making this argument is to say that there are people in society who would believe it to be immoral to place children in adoptive situations with gay parents. They believe this since they believe that homosexuality is a distortion of proper human sexuality. As long as they have reasons to believe this (such as those I outlined in my numbered points above) which are not merely based on divine command, then I believe that their freedom of conscience should be respected in our society, even if it could potentially cause others to lose something to which they might be viewed as having a right (in this case, the proposed right of gays to adopt). Thus they are in the contraception case, and not the blood transfusion case, and organizations like Catholic Charities should have been permitted to make the choice to place children only with heterosexual couples, even though gay marriage had been made legal in Massachusetts.

To summarize, in order to talk about the right to marriage properly, I believe we must separate out three functions of marriage which are currently conflated in our social practice:

1) The unitive/sacral function of marriage: Marriage as an expression of love and commitment between two people, and recognized as such recognized either by the church or a religious body, society at large (as represented by the state), or both (as in our country's polity)
2) The procreative function of marriage: Marriage as a commitment of two people to raise up children, either their biological children whom they have had through sexual intercourse, or their adoptive children
3) The civil function of marriage: Marriage as a legal declaration conferring upon two people certain rights, privileges, and status (such as tax status, visitation rights, etc.). This is purely instrumental, and has traditionally been considered subservient to the first two functions. In other words, people were granted these benefits as an added incentive to marry beyond religious precept or social sanction.

With regard to these then, I would argue that #1 should not be a function of the state. To my mind, that violates the separation of church and state from the side of the church. This was not seen previously since we operated under the kind of broad Christian consensus about moral values prevalent in the West since Constantine. But now we live in a post-Constantinian age, so Chrisitians can't expect a state like the US, established on secular principles, to safeguard our best interests or values.

Conversely, #3 should not necessarily be tied to marriage at all, as I suggested earlier. The only reason to keep its tie with marriage would be if it served as sufficient inducement for people to get married rather than co-habitate. But the current state of heterosexual marriage would suggest that is not the case.

Finally, then #2 is the area on which I don't know if a compromise can be found. Due to Christians' (and other religious, and some secular, groups) views on #1 being only properly fulfilled by a man and a woman, they see they would see that #2 should also only be fulfilled by a man and a woman, since otherwise the mirroring of the proper sexual relationship does not take place. I would argue, as I did above, though, that they have the right not simply to privately hold this view in our pluralistic society, but actually to put it into practice, by doing things such as refusing to place children for adoption with gay couples. (The social perpetuation argument I outlined above is one potential argument that they could use which is not merely divine command.)

Therefore, I only see a compromise as possible if people who support gay marriage could agree that those who opposed it could still retain their right to not recognize gay people as having the right to adopt. I am not sure whether homosexuals who wish to marry would agree to this limitation.