Part 3: Gay Rights in Our Time and Place
by James Goldberg
This essay is the third in a series about Gay Marriage and Proposition 8.
Gay rights are difficult to talk about because we don’t have a clear line between talking about same-gender sexual activity and gay people.
The courts have been clear and broad consensus has emerged in almost all segments of society that the government should not attempt to legislate private sexual behavior between consenting adults. Most of the legal reasoning for this, I believe, is based in our notion of the home as protected from government interference unless an urgent and direct social interest, as defined by an overwhelming majority of society, is at stake.
Most of the social acceptance comes from a widespread belief in adult sexual morality as a private or religious issue rather than a public one. Because Americans have competing views of what our sexual ethics should be, we are happy to leave sexual ethics to individuals and voluntary communities rather than regulating them formally.
But our transferral of sexual ethics to the private and religious sphere becomes somewhat contentious when we view same-gender sex as synonymous with a separate class of gay people. If we can’t separate individuals’ actions from the identity group, the opposition of many religious groups to same-gender sex seems equivalent to prejudice against gay people.
As a person whose three faith heritages (Jewish, Sikh, and Mormon) have traditionally accepted sex only in the context of male-female marriages, I get nervous when such teachings are treated as fundamentally hateful and discriminatory. Because each of those faith heritages holds a more covenantal than experiential view of identity (as I’ve defined those terms previously in the series), it’s also difficult for me to relate entirely to the assumptions of gay public identity. For example: I struggle to grasp what it means to be affirming about someone’s bisexual identity, because while I can intellectually understand what bisexuality means to someone’s inner life and experiential identity, the term simply has no meaning in my covenantal identity framework. How can I value bisexual lifestyles when I believe an ideal life involves only one sexual relationship?
I agree with gay rights advocates that no one should get beaten up physically or verbally for being different, but I can’t agree that it’s a moral imperative to think all types of sexual choices are equal.
So, is being personally respectful to people who choose different lifestyles enough? I’m not sure it is. If I understand right, talk about gay marriage started during the AIDS epidemic, when many gay men were making great sacrifices to care for dying partners and suddenly found themselves wishing for legal rights about things like insurance and hospital visitation. The right to visit a sick loved one is something many of us take for granted. But it’s also a right, sadly, that many family members of gay AIDS patients in the 1980s didn’t exercise. So our country was left with situations where gay men had to fight against standing rules for the right to visit dying men no one else was going in to visit.
It breaks my heart to think about that.
Don’t those men, whose acts of service in the face of adversity our God surely saw and respected, deserve some help making appropriate legal changes?
I think it’s a good thing that so many people, especially young people, believe the answer is yes. But it’s notoriously difficult to transfer a kind and wise spirit successfully into binding letters, so good intentions won’t necessarily translate into good laws.
Early attempts to grant same-sex couples insurance and hospital visitation rights, plus everyday things like the ability to easily open joint bank accounts, were built around phrases like civil union and domestic partnership. California, for example, created a registry in 1999 for legally-recognized domestic partnerships designed primarily for adult same-sex couples who, to use the law’s phrasing, “have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.”
But creating a new legal category can be tricky. What rights and obligations should domestic partners have? Rather than starting from scratch, California and many other states decided to simply borrow pre-existing marriage laws: domestic partners, the California law said, had all the same legal rights and obligations as spouses. Which raised the question: why not just call them spouses? Why not just legally recognize a committed same-sex relationship as a marriage, and thus protect the rights of same-sex couples by tying them to rights of everyone else?
And once the word marriage became a rallying point for gay rights activists, many lawyers and judges started to wonder: should anyone have a right to tell two people who build a life together that they can’t get married?
This is the question that dominates the gay rights debate today.
Read the 6-part series