The legal and moral status of gays and lesbians has always been problematic in human society, especially in the Judeo-Christian world. In modern American society, it occurs in at least two contexts: constitutional and moral. The demands of sound public policy are then addressed. We begin with the constitutional questions raised by the issue.
Constitutional Questions
It is amazing that in the modern age homosexuality is an issue at all. Under the national Constitution the issue of sexuality was not even mentioned. The recent Supreme Court decision overturning the Texas Sodomy Law relies on the 10th Amendment right of privacy.
An exception to this is the standing of homosexuals in the federal service (both civilian and military). A constitutional foothold for this is found in the elastic clause, which gives the Congress the power to pass laws that are necessary and proper to exercise its enumerated constitutional powers.
On sexual issues the government has two options. It can be a leader and pioneer greater protection for sexual options as it did when Truman desegregated the military, or it can follow the lead of state governments on the issue. It has no standing to increase regulation of sexual matters without a clear and present need.
The recent Defense of Marriage Act treads dangerous constitutional ground by allowing states to opt out of the full faith and credit clause in the Constitution. It is dangerous precedent for the Congress to pass a law that it can ignore the Constitution by statute. For one thing, it invites the ire of those who support voting representation to the District of Columbia by statute. It seems that the right wing can no longer hide if it wishes to honor such a dangerous precedent.
The Fourteenth Amendment expanded the role of federal intervention into sexual politics, although it seems to argue for moving forward in extending rights, not backward. This Amendment requires the Federal government to guarantee that state laws provide equal protection to all of its citizens, period. If a State government, acting as the agent of culture, grants a privilege or a protection in any area, then all in that State must be given an opportunity to enjoy it. The State as cultural arbiter of sexuality is examined next.
The Cultural Regulation of Sexuality
In American Society cultural regulation, as much as it is practiced, is accomplished at the State level. A key part of this regulation is the recognition of marriage and the raising of children. In a democratic society the mores of the dominant culture are reflected in these regulations. In this country the Judeo-Christian culture is dominant, and its mores are reflected in the law. If this were a predominantly Muslim or Mormon culture polygamy would be an accepted part of the law. However, in the current dominant culture in most states polygamy is considered a crime. In the area of sexuality cultural mores are fluid. In the days of the Hebrew Patriarchs polygamy was considered moral, as it was more practical in a primitive society. As society moved to a more urban setting this changed, and the sexual mores reflect this change.
In the American culture tolerance is a strongly held virtue. This is by necessity, as tolerance of the differences of others leads to their tolerance of your differences. In former times anti-Catholicism was a part of the civic and religious culture. Among most Americans this is no longer considered acceptable.
As the belief in tolerance has increased many have come forward to demand acceptance. Among these are gays and lesbians. As the culture changes, the law is adapting to it, especially given the wider application of the equal protection clause of the Fourteenth Amendment. An aspect of equal protection is the question of laws prohibiting homosexual behavior. To inform our discussion on this homosexuality as a moral question is examined.
Homosexuality as a Moral Question
Many argue there is no question involved, as they have been taught that homosexuality is wrong and that is the end of it. That is adequate for teachings on personal morality. However, in a free society it is not advisable to base public policy choices solely on religious authority. To blindly accept such teaching in the life of the state invites theocracy, which is contrary to the founding principles of the republic and which often leads to the kinds of oppression found in Iran against infidels and in nineteenth century America against Catholics. Moral teachings cannot dictate public policy choice. Rather, they are to be used to inform rational choices in the context of a free society. I attempt to do so now.
Three moral objections to homosexuality are examined: the biblical example of Sodom and Gomorrah, the nature of the homosexual relationship and the majority’s feelings about the homosexual act.
I offer no argument that the sins of the city-state of Sodom and Gomorrah cried to heaven for justice. I do question whether the sin that cried to heaven was simply homosexuality. A reading of the biblical text shows the sin of Sodom was not its permission of homosexuality but its inhospitality to Lot’s visitors, who in reality were the Angel of the Lord. Genesis, states that the crowd wished to have its way with Lot’s visitors. One does not demand to rape God and expect to come away unscathed. Rape was the sin of Sodom, and I firmly agree that this does cry to heaven for justice.
The homosexual relationship can be examined for completeness. Biologically it is obviously incomplete, as by its very nature it precludes the ultimate in sexual love, the creation of a new individual. However, this does not preclude it from being the ultimate form of love. The ultimate form of love is to lay down one's life for another. This comes through actual death (such as protecting a lover from gay bashers) or through selfless dedication. There is nothing in the homosexual relationship that precludes this, and in fact it often occurs when one cares for a lover who has been stricken by AIDS.
The final objection is that many find homosexual sex personally disgusting. While this is an argument for not engaging in homosexual relations personally it is not strong enough to prohibit it to others who do not find it so. Personal preferences and prejudices do not determine public policy choices. Part of one’s sexual preference is to exclude other preferences. It is natural for displays of homosexual affection to disquiet heterosexuals, just as displays of heterosexual affection give some queens the willies. In a majority gay culture, do heterosexuals want their conduct regulated? I think not. Those who are disgusted by the idea of homosexuality need to ask themselves which is more disgusting, the act itself or the state taking an interest in the act.
Having argued that the first principle of morality is that God loves man (as that is God's nature), it follows that any moral code must reflect God's desire that man be happy and fulfilled in his humanity. Behaving inhumanely is not natural, or outside the natural order, if you will. In both natural law and divine law homosexuality is not disordered for one who was created homosexual by God. Under such an ordering, the teaching that homosexuals refrain from their God-given sexuality is disordered, as its effect is to alienate homosexuals from the Church and place them outside its wise counsel on monogamy as opposed to promiscuity. When the Church promulgates a teaching it is responsible for the result. If the result of a church teaching is teen suicide and adult promiscuity, then the teaching against homosexuality is disordered.
Some religious people wish to convert homosexuals into heterosexuals, or teach them to remain celibate in order to undertake religious practice. I disagree. To teach another about morality, you must first gain their trust. The reason gays and lesbians don't trust evangelicals and traditionalist Catholics is because the would-be evangelists don't trust the gays when they authentically state that they did not chose to be gay, that God created them that way. Now, these evangelicals, who are not gay, claim to know where the gays are coming from. They can't so by teaching homosexuality is a choice they lie. To be trusted, you must trust. Authenticity is important. It is why alcoholics listen to each other rather than ministers to get sober, they trust someone who has been there - not someone who has not.
Others do not wish to evangelize gays. They are instead under the misguided notion that God punishes a culture that allows homosexuality. The most interesting example of this is the reaction of conservative Texas Republicans to Log Cabin Republicans. This is not only silly; it is uncharitable. God demands we treat others with charity, even and especially those we don’t agree with. Practicing legal discrimination in God’s name is flat out wrong, especially given the doubts I have raised about whether homosexuality is sinful at all. I have long believed that if Jesus were teaching the story of the Good Samaritan today, he would change the Good Samaritan to the Good Drag Queen. This is just his style. If you don’t think so, then you really don’t know the Lord as well as you think you do.
Having proposed a more enlightened view of the moral standing of gays, I address the question of their standing before the law.
The Demands of Sound Public Policy
Two public policy questions are important here: the prohibition against homosexual activity and public health.
Until the Texas decision striking them down, many jurisdictions had laws prohibiting homosexual activity (the only holdout is the military – which the Court did not include and may have lost the majority vote in doing so – the military establishment is now defending itself against the constitutional rights of its citizens – an obvious tyranny). With the question of private sexuality effectively settled the question of public recognition remains. (See the essay on Iraq for more information on American militarism).
Public affirmations of sexuality among heterosexuals is not only condoned, but legitimized through laws on marriage and family relations. Under equal protection homosexuals have an equal right to state sanction. It is also in the state's best interest to acquiesce to such rights.
The AIDS epidemic has highlighted the public health question involving homosexuality. When monogamous homosexuals are not given access to the institution of marriage, then the law implicitly endorses promiscuity. Venereal disease has always made promiscuity a dangerous choice, both for straights and gays. With the advent of AIDS it becomes fatal. The sanctioning of marriage by homosexuals lessens promiscuity and brings gays into the moral order. In doing so it helps to halt the spread of disease. As such it is in the interests of the state and the society. Social and religious leaders who accept the legitimacy and morality of monogamous gay relationships then have standing to teach that promiscuity is wrong. Until they do so, they are hopelessly out of touch, putting their gay brethren out of reach.
Finally, when my wife and I were preparing for marriage in the Church we were taught that we make the marriage; the function of the priest was to provide witness to our vows only. Surely if this is true for us, it is also true for gays and lesbians.
