New York Senate approves gay marriage

The New York Senate vote on same-sex marriage was profoundly conservative. Unfortunately, few people will see it that way. Photo: Associated Press

NATCHITOCHES, La., June 25, 2011 — The New York State Senate voted 33-29 on Friday to legalize same-sex marriage, a week after the State Assembly approved the same measure. The Senate is controlled by Republicans, hence Republican votes were essential to pass the bill. Four GOP senators joined all but one of the chamber’s Democrats to do so.

Nationwide, the GOP has been generally hostile to same-sex marriage (SSM) rights. “Gay marriage” is a contentious culture-war issue that galvanizes the Evangelical Right, and Tea Party candidates were almost unanimously hostile to legalizing SSM in the 2010 political campaigns. It would be astonishing if SSM weren’t an issue in 2012. The New York vote makes that even more likely.

New York Gov. Andrew Cuomo reacts after same sex marriage was legalized after a vote in the Senate Chamber at the Capitol in Albany, N.Y., on Friday, June 24, 2011. (Image: Associated Press)

New York Gov. Andrew Cuomo reacts after same sex marriage was legalized after a vote in the Senate Chamber at the Capitol in Albany, N.Y., on Friday, June 24, 2011. (Image: Associated Press)

GOP hostility to SSM makes little sense on the basis of conservative political values. The lone Democrat to vote against it in New York, Ruben Diaz Sr., from the Bronx, expressed a common misunderstanding of those values: “It is unbelievable that the Republican Party, the party that always defended family values … is allowing a Democratic governor to divide the Republican Party and the Conservative Party …”

Diaz, a Pentecostal minister, sees the issue as a conservative one, but in fact it’s only religious. The blurred line between religion and conservatism, along with the large-scale co-opting of the GOP by the religious right, has made Diaz’s misunderstanding a common one.

A fundamental conservative, constitutional principle might be paraphrased as, “what isn’t forbidden is allowed.” That’s in contrast to the big government liberal principle, “what isn’t allowed is forbidden.” That is, the conservative default would be to assume that rights extended to some are extended to all, and that rights should be denied only for socially compelling reasons: We assume that rights exist unless we explicitly deny them.

The government doesn’t grant us rights; they aren’t a gift of the state. The people grant the state enough power to circumscribe rights necessary to a functioning society, no more.

Marriage is a bundle of rights - rights of inheritance, visitation, adoption, and other legal benefits. It’s a contract, and opponents of SSM have yet to present a coherent, compelling argument to deny those contractual rights to same-sex couples. It would therefore be a profound violation of conservative and constitutional principles to deny them.

Marriage is also a religious sacrament, and there’s the problem. Opposition to SSM is almost entirely religious. Homosexuality is offensive to many religious people, and by extension they consider it offensive to God.

And it may be. Leaders of my own church consider homosexual behavior to be a grievous sin, and I won’t argue with them on that point. I’d point out, however, that it would be appropriate to deny same-sex couples the right to marry in our churches and temples. It would be inappropriate to make civil contracts contingent on religious codes of conduct.

Religious rites are the province of God; contracts are the province of Caesar. Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.

If we wish to ensure that marriage remain a holy sacrament, we should perform marriages without asking for the blessings of Caesar. Let the state create contractual unions between couples. Let the church bind them in holy matrimony. Don’t require churches to recognize contracts as holy, and don’t require the state to recognize sacraments as contracts.

Robert Moore of New York waves a Pride flag outside the Capitol in Albany, N.Y., after the state Senate passed a bill legalizing same-sex marriage, on Friday, June 24, 2011. (Image: Associated Press)

Robert Moore of New York waves a Pride flag outside the Capitol in Albany, N.Y., after the state Senate passed a bill legalizing same-sex marriage, on Friday, June 24, 2011. (Image: Associated Press)

By making ministers, priests, rabbis, imams, and Wiccan high-priestesses agents of the state, we’ve confused the sacred and the profane. We’ve come to think that all marriage is sacred, even when performed by Elvis impersonators in Las Vegas lounges with topless show-girls for witnesses. We think that Pamela and Tommy Lee’s latest legal coupling is a holy union.

Wow. There’s nothing that gays can do to marriage to make it any more trivial than straight society already has. The conflation of secular contracts and religious rites has done more to damage marriage than the New York Senate ever could.

If this debate helps us see the difference between rite and contract, it will have done more to help marriage than any number of Pentecostal ministers.

SSM won’t harm my marriage, nor will it harm yours. Churches retain the right not to marry whomever doesn’t meet their standards. It’s entirely legal for divorced people to marry, yet the Catholic church isn’t obliged to make priests marry them or to let them marry in the local cathedral. Episcopalians can legally marry in all 50 states, yet the Mormon church isn’t required to let them even enter a temple, let alone marry in one. Unless he turns his church into a public accommodation, Senator Diaz need never let a gay wedding party darken his doorstep. Each church’s sacraments will remain pure, its marriages approved of God.

The New York Senate did the right and sensible thing in legalizing same-sex marriage, and it did the conservative thing. The pity is that few Republicans or Democrats recognize that fact. The marriage of secular and profane is one marriage that should never have happened. Until we encourage a divorce, we’ll persist in seeing religious values as conservatism. That’s a tragedy for Reverend Diaz, for gay couples, for my church, and for the GOP.

James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the French professor, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade and chili-chocolate cupcakes. He doesn’t believe that Abyssinian blonds should be allowed to marry, but he’s open to arguments to the contrary. He tweets and has a badly neglected blog at pichtblog.blogspot.com.


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Jim Picht

James Picht is the Senior Editor for Communities Politics and teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years working in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He returned to Ukraine recently to teach principles of constitutional law and criminal procedure at several Ukrainian law schools for a USAID legal development project. He has been writing at the Communities since 2009.

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