Published in Athens Human Rights Festival, p. 3 (May 1 & 2, 2004).

Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.

The gay marriage issue (or same-sex marriage issue) is, like other gay rights issues, a civil rights issue.  A civil rights issue exists when the state unfairly or unjustifiably denies an individual or group a right which it grants to other individuals or groups.  The gay marriage issue is whether the state may use its authority to bar same-sex couples from doing what different-sex couples may do–get married.  Once the issue is correctly framed, there can be no doubt how it should be resolved.  Persons of the same sex (whether heterosexual or homosexual) should have the same right to marry each other as do persons of different sex.  (It also follows that, to the extent civil unions are to be allowed, they should be available to both same-sex and different-sex couples.)

The Netherlands and Belgium have legalized same-sex marriage, and Canada is on the verge of doing so.

The opponents of removing barriers to same-sex marriage claim to rest their opposition on valid arguments.  But when those arguments are scrutinized, it is evident that they are smoke-screens for bigotry, proving the truth of something Thomas Babington Macaulay, the great nineteenth century English political thinker, said: “The truth is, that bigotry will always find a reason.”  When Macaulay said that, he was referring to arguments advanced by opponents of a proposal to grant full civil rights to English Jews.  The arguments against the proposal revolved around  alleged peculiarities of Jews, and were  being raised by the same persons who a few years before had opposed a proposal to grant equal rights to English Roman Catholics because of alleged peculiarities of the Catholic faith.  “Whatever the [group] be which it is proposed to tolerate, the peculiarities of that [group] will, for the time, be pronounced by intolerant men to be the most odious and dangerous that can be conceived,” Macaulay explained.  “Such, sir, has in every age been the reasoning of bigots.”

Bigots oppose the advance of civil rights by concealing their bigotry beneath a smoke-screen of arguments, and those arguments often consist of finding alleged defects in the individuals or groups seeking civil rights protection.

This happens often.  Almost every time civil rights have been significantly expanded, the expansion has occurred over the opposition of persons who ostensibly base their opposition on stated reasons.  When the issue was whether to abolish slavery, defenders of slavery had reasons for retaining slavery; when the issue was extending the vote to women, there were opponents with reasons for denying suffrage to females; and when the issue was abolishing racial segregation or bans on interracial marriage, or ending criminalization of private sex acts among consenting adults, there were plenty of opponents equipped with lots of arguments.  Typically these arguments against expanding civil rights involved pointing out alleged defects in those who would benefit by the expansion.  The proslavers  and the segregationists argued that blacks were inferior to white persons; opponents of women’s suffrage wallowed in arguments premised on male chauvinism; and opponents of legalizing the private consensual acts of adults argued that such acts were unnatural and perverted and that those who performed them were morally scrofulous.  Bigots can always find reasons for opposing civil rights claimants, and they love to base their opposition on alleged defects in the claimants.

The reasons opponents of same-sex marriage give for their opposition are classic examples of the use of arguments to mask bigotry.

They argue, for example, that no civil rights issues are involved because “homosexuals are made not born,” or that civil rights doesn’t “protect behavior patterns," or that same-sex marriage “has nothing to do with civil rights [because it] is an issue of morality.”  But the notion that homosexuality is an acquired or learned trait is unscientific, bigoted nonsense.  So are the notions that banning same-sex marriage involves “behavior patterns” or “morality”–unless one is a bigot who thinks that homosexuals are degenerates, or that homosexual relationships are evil, sinful, immoral, and unnatural.

Some oppose same-sex marriage on the ground marriage “is an institution for procreation”–but this is absurd, since it has never been required that couples be capable of producing children to get married, and many couples marry even though one or both of them is incapable of having children (marriages among the elderly are a good example).  The view that marriage is all about breeding children was, I might add, the vision of marriage held by the Nazis, and reduces women to brood mares.  Those who use this argument against same-sex marriage are bigots.

Then there are those oppose same-sex marriage based on the Bible, the Christian religion, and theology.  But the issue of same-sex marriage is an issue of government and public policy; it is not a religious issue.   Churches and religious faiths are free, of course, to refuse to accept or perform same-sex weddings, but Christian religious doctrines and Biblical interpretations cannot control government marriage laws and policies which, like other governmental activities, must be secular.  Under the law marriage is a civil institution, not a religious sacrament.  It is not necessary to have religious beliefs to marry, and couples do not need a clergyman to marry them or a church in which to marry.  There may be Islamic republics, but the United States is not a Christian republic.  To the extent opposition to same-sex marriage is grounded on matters of religion, these grounds are utterly irrelevant in the context of governmental public policy.

At a recent demonstration at the state capitol building in Atlanta, Christian Coalition supporters of amending the Georgia Constitution to bar same-sex marriages carried signs citing the Bible which screamed, “I now pronounce you pervert and pervert,” “Homo sex is sin,” and “Sodomites: 1. Abomination 2. Worthy of Death 3. Reprobates.”  At least here the bigotry is open and unashamed: denial of civil rights is defended by arguing that gays, the people who advocate same-sex marriage, are depraved (and hence unworthy of equal rights).  But being theological, these “reasons” for barring same-sex marriage are inapposite except in the realm of the sacerdotal; they cannot be applicable to the civil institution of marriage as established by secular governments.

A favorite argument of those who seek to bar persons of the same sex from marrying each other is that permitting such marriages threatens the sanctity or integrity of the institution of marriage and will demean marriage.  But how would it do this?  Marriages of different-sex couples will remain just as valid and protected as before and are in no way infringed upon by extending marriage to same-sex couples also.  Once again, an argument against civil rights conceals bigotry.   Opponents of same-sex marriage simply don’t want to share the institution with gays–and why?  Because gays and gay relationships are detested by these opponents, i.e., because of bigotry.  Once again, we see that bigots never lack a pretense and that their reasoning is the reasoning of bigotry in all ages.  “Of all the nonsense peddled by opponents of gay marriage,” Cynthia Tucker writes, the argument that “traditional marriage will collapse if gays are allowed to join the institution ... is, by far, the dumbest.”

A T shirt available from says what the bigots need to learn: “Marriage is a human right, not a heterosexual privilege.”