“Adam and Eve, not Adam and Steve” has become a cliché, but opposition to marriage equality remains rooted in certain religious beliefs. The same-sex marriage bans of four states will be considered next week by the Supreme Court in Obergefell v. Hodges. Proponents of these marriage bans framed their arguments in religious terms; legislators even quoted scripture and proclaimed that the ban was necessary “for the stability of society and for the greater glory of God.”
The states’ lawyers defending these marriage bans have wisely refrained from invoking religion in their briefs to the high court, but they hint at it all the same; one state argues that the so-called “traditional definition” of marriage “goes back thousands of years.” And many of the third-party groups supporting the marriage bans have been even more explicit in arguing that their own religious beliefs justify their opposition to other people's marriages.
* The Michigan Catholic Conference tells the court that “[t]he basis of our government is religion.” The brief repeatedly cites the Book of Genesis and argues that “God’s joinder of man and woman in marriage, exemplary as it is, inspired the secular law governing marriage.”
* The brief of a coalition called “Religious Organizations, Public Speakers, and Scholars Concerned About Free Speech,” states that “[f]or two millenia, Christians have based their definition of marriage on the words of Jesus Christ.”
* The Foundation For Moral Law, a group founded by Alabama Supreme Court Chief Justice Roy Moore, advises that “[t]he Bible, which has influenced moral values for Judaism, Christianity, Islam, and other religions, contains clear disapproval of homosexual conduct in the Old Testament (Leviticus 18:22) and in the New Testament (Romans 1:26–27).”
* A group of self-proclaimed “Major Religious Organizations” warns that the Supreme Court cannot recognize marriage equality “without inflicting grave harm on millions of religious believers and their cherished beliefs and institutions.”
This is not the first time that religion has been invoked to justify marriage discrimination. Similar resorts to religion fueled legal opposition to interracial marriage – in some cases until quite recently.
In the 19th and early-20th centuries, state courts in Indiana, Georgia and Pennsylvania cited religious reasons for preventing different people of different races from marrying each other. In the 1960s, the trial judge in Loving v. Virginia – the case in which the Supreme Court struck down state bans on interracial marriage – wrote, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
After the Supreme Court invalidated bans on interracial marriage, Bob Jones University still argued that the freedom of religion provisions of the First Amendment allowed it to ban interracial dating and keep its tax-exempt status while doing so, because its “rule against interracial dating is a matter of religious belief and practice.” And after the Supreme Court rejected this argument, in 1983, the university continued to ban interracial dating until the year 2000.
Even the more subtle legal defenses of same-sex marriage bans mirror the arguments used to defend bans on interracial marriage. There are arguments based on tradition: In 1967, Virginia officials told the Supreme Court that “The Virginia [bans on interracial marriage] reflect a policy which has obtained in this Commonwealth for over two centuries in which still obtains in seventeen states.” Now, in 2015, Michigan tells the Supreme Court that it “has defined marriage as the union of one man and one woman since before statehood.” Kentucky says that same-sex marriage “is not deeply rooted in this Nation’s history.”
And there are arguments based on dubious social science and vague premonitions. In 1967, Virginia warned the court that it would quickly “find itself mired in a veritable Serbonian bog of conflicting scientific opinion upon the effects of interracial marriage,” an obscure reference to a place in ancient Egypt where one could be sucked under by quicksand. Now, in 2015, Michigan warns the high court that “[a] rational voter might worry about the law of unintended consequences, and might conclude that there is some risk that changing the definition of marriage to remove its inherent connection to procreation might undermine it in the long term as an institution for linking parents to their biological children.”
Despite these parallels, attorneys for the states defending same-sex-marriage bans have resisted the comparison to bans on interracial marriage. But the lawyers doth protest too much, methinks. Although the targets of this discrimination have changed, the reasons are the same. And today’s bans on marriage equality deserve the same fate as those stuck down nearly 50 years ago in the Loving decision.
Greg Lipper is senior litigation counsel at Americans United. Follow him on Twitter at @theglipper.