'Sanctity of marriage' arguments miss point

    Federal Judge Vaughn Walker made the right decision earlier this month when he overturned Proposition 8, a 2008 law that denied same-sex couples in California equal access to marriage. As his ruling shows, the law was unconstitutional because it violated the Due Process and Equal Protection clauses by failing to offer a rational basis for its existence—even as it discriminated against a minority.

    Bush v. Gore rival attorneys Ted Olson and David Boies joined forces in January to fight Proposition 8. Olson, the conservative former Bush attorney, recently said on Fox News Sunday "All we have to do is look into the eyes of these individuals and decide, ‘Why are we denying them the right to happiness that we accord to all of our other citizens?'"

    Why, indeed. At a time when ten developed nations now allow gay couples to marry, the United States has fallen behind on its core promise—the promise to acknowledge that all men are created equal. Those who defended Proposition 8 in court failed to offer any legitimate rationale for denying gay couples the fulfillment of that promise. One "expert" witness for the defense, Hak-Shing William Tam, encouraged voters to support Proposition 8 by asserting that, if allowed, gay marriage would cause "states, one-by-one to fall into Satan's hands".

    Even attempts at non-religious reasoning collapsed under careful scrutiny. The defense claimed that the state's primary interest in marriage was procreation, which would exclude same-sex couples from the sacred institution. This argument fails to pass muster when one considers that neither elderly nor infertile couples have ever been denied the right to marry.

    The defense's other primary argument suggested that allowing gay couples to marry would redefine marriage. If so, American courts have redefined marriage at least twice before: once when the US eliminated the doctrine of coverture, under which the husband subsumed his wife's legal rights; and again in 1967 when the Supreme Court case Loving v. Virginia overturned bans on interracial marriage.

    The lack of a sound legal argument in favor of Proposition 8 stems from the fact that one simply does not exist. Despite a desperate attempt by the defense to manufacture one, the underlying truth is that objections to allowing same-sex couples to wed are not rooted in law, but in the personal prejudices and religious beliefs of those who object.

    The most common religious appeal contends that allowing gay couples to marry will erode the "sanctity of marriage". If that is the fear, heterosexual couples are most guilty. In 1997, Psychology Today reported that in Denmark, where gay marriage was already legal, the divorce rate among gay couples registered only 17 percent; divorce rates among heterosexual couples stood at a whopping 46 percent. In a separate study, the Barna Research Group found that 27 percent of born-again Christians in America have been divorced, while the same was true of only 21 percent of atheists.

    States located in the Bible Belt boasted the highest divorce rates.

    In the Bible, Jesus never mentioned homosexuality. When discussing the "sanctity of marriage," he never instructed that it be limited to one man and one woman; in fact, the one commandment he gave was that couples not divorce except in the case of adultery. Yet these moral crusaders never call for a ban on divorce; they focus their efforts, not on preserving the sanctity of their own marriages, but on preventing the marriages of others.

    In a previous generation, religious fundamentalists attempted to ban interracial marriage on similar faulty bases; they failed. They will continue to fail in this case, too. In ordering the overturn of Proposition 8, Judge Walker correctly affirmed that personal religious beliefs, while to be respected and left unabridged by the courts, may provide no basis for making laws—especially when those laws abridge the rights of others.