Virginia attorney general refuses to back state’s same-sex marriage law

Virginia attorney general refuses to back state’s same-sex marriage law

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WASHINGTON, January 24, 2014 — Virginia’s newly sworn-in attorney general, Mark R. Herring, announced this week that he will not defend the state’s statute against same sex marriage. Herring, a Democrat who received strong support from gay-rights groups in his election campaign, said that he considers the ban on SSM unconstitutional.

Virginia’s top house Republican, William J. Howell, said in a statement that Herring has disregarded Virginia’s legislative and democratic processes to set a dangerous precedent. Pat Mullins, the leader of Virginia’s GOP, said in a statement that Herring had turned the issue into “a political farce.”

“The first job of Virginia’s attorney general is to be the commonwealth’s law firm, and to defend the duly passed laws of the commonwealth. If Mark Herring doesn’t want to defend this case, he should resign.”

Court decisions, ballot initiatives and state legislatures have extended marriage rights across the country in the last year. Same-sex marriage is expected to be on ballots in Oregon, Indiana and Ohio this fall, and Democrats see it as an issue that will help them in the polls. Republicans remain generally opposed.

Ten years ago, Republicans used SSM to mobilize voters to help reelect President George W. Bush. It continues to galvanize the Evangelical Right, and Tea Party candidates were almost unanimously hostile to legalizing SSM in the 2010 political campaigns. However, political sentiment across the country has shifting dramatically since then in the direction of legalized SSM.

GOP hostility to SSM is not a necessary consequence of conservative political values. In 2011, the lone Democrat to vote against it in New York’s legislature, 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, saw the issue as a conservative one, but it is 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 basic conservative, constitutional principle is, “what isn’t forbidden is allowed.” That’s in contrast to the big government liberal principle: “What isn’t expressly allowed is forbidden.” The conservative default would be to assume that rights extended to some are extended to all. We assume that rights exist unless we explicitly deny them, and we deny them only when there is a compelling social interest.

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 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 believe, offensive to God.

It may be. God’s will is not a matter of public record, however, except to people who believe certain religious texts to be definitive on that point. Leaders of many churches consider homosexual behavior to be a grievous sin, and no one can argue with them on the basis of evidence. However, if they are correct, it would be appropriate to deny same-sex couples the right to marry in our churches, mosques 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 want marriage to remain a holy sacrament, marriages should be performed 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.

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 showgirls for witnesses. We think that Pamela and Tommy Lee’s latest legal coupling is a holy union.

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 Virginia’s attorney general 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 ministers.

If SSM is a threat to civil marriage, it is up to opponents to prove their case. Churches retain the right not to marry anyone who 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 legalization of sin – drinking, premarital sex, dancing, or women going in public without a head covering – is not a sin. The sin itself is the sin, and deciding what constitutes sin is not the job of legislatures. The legalization of same-sex marriage is the right thing, regardless of the morality of same-sex sex, and it is 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 religious leaders, for gay couples, and for the GOP.

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Jim Picht
James Picht is the Senior Editor for Communities Politics. He teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years doing economic development work 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 has also worked in Latin America, the former USSR and the Balkans as an educator, teaching courses in economics and law at universities in Ukraine and at finance ministries throughout the region. He has been writing at the Communities since 2009.