Stephen B. Young, The Daily Record Newswire
I am increasingly of the mind that our deep cultural divisions over sexual conduct and practices should not be the subject of government regulation. Government should stay away from religious belief. This principle should apply not only to regulation of some abortions but to marriage as well.
We can end our culture war and restore American greatness if we do this.
Once again this week, our culture war dragged the U.S. Supreme Court into its trenches. Two cases about gay marriage — Hollingsworth v. Perry and United States v. Windsor — were heard by the court.
Excluding the state from excessive regulation of our personal sexual practices arises from the constitutional ideal of separation of church and state, a rock-solid foundation of our free society.
Divisive differences among Americans over abortion and gay marriage are deeply religious in their origins. Some of us insist on strict self-control over sexual urges and expressions. Some of us believe that certain sexual expressions are sinful. Others are more tolerant of unrestrained behaviors, both heterosexual and homosexual.
We have been living in a cultural war between those who hold to a righteousness code as a condition of eternal salvation and those who reject such a religious perspective.
For simplicity, we might even say that we are torn apart by differences between Calvinists and Catholics on one side and more “bohemian” cultural patterns on the other.
The core tenets of the 1960s feminist and gay liberation movements demanded recognition of many forms of gender and sexual self-expression as civil rights. These demands, though seemingly secular, also have theological origins. Like religious beliefs, they are justified by assertion and definition, by a form of truth about life that does or does not reveal itself to our minds one person at a time. Many of the truths advanced by feminism and gay liberation are taken on faith by their adherents, just as many religious truths are.
But one faith does not cancel out other faiths.
Other individuals hold different assumptions, accept different definitions and believe in different divine revelations about personal sexual expression. They do not accept the righteousness of such sexual practices as homosexuality or intercourse outside of heterosexual marriage.
Our war over morality is largely between those who live with little or no sense of Biblical sin and those who demand that we shun all sinful behaviors and thoughts. It is hard to separate issues of sex from issues of sin, and sin is about religion. Sex and religion share the same bed, so to speak.
What role should our government have in prohibiting sin through laws and regulations, or in facilitating sin through tolerance of free sexual practices?
Here is where application of separation of church and state can be helpful.
In brief: The government has no role in establishing, one way or the other, religious ideas about sin. It can prohibit crimes and secure secular aspects of the common good, but it has no capacity to impose theology on free people.
Our Supreme Court in Roe v. Wade tried to settle deep cultural divisions over abortions by making the issue medical, scientific and thus completely secular, cut off from religion and sinfulness. It used law to trump religion and failed in the attempt. The ruling set off decades of political unrest.
Under our theory of government, as set down by John Locke in his “Second Treatise” and ratified by our Declaration of Independence and federal Constitution, government follows upon culture and religion. It is subordinate to life, liberty and the pursuit of happiness. Government does not give us our rights or our beliefs; it protects them as part of our ability to enjoy liberty. Values and beliefs,
culture and religion, are part of liberty and as such are prior to government — not creations of it. Whatever we believe to be true as a matter of religious faith is beyond the reach of government’s police powers.
Under this system of rule, government has only a limited capacity to constrain us in the exercise of our rights; it involves providing for the common good so that others may enjoy their rights as well.
Our governing is not into thought control. But what about behaviors?
Clearly they have more impact on others than our thoughts do. Because they have real consequences for others and for the common good, behaviors cross over into the realm of legitimate regulation. Crimes are regulated; economic activity is regulated. Speed limits are rightly imposed, and we may not smoke in public places — no matter how fast we want to drive or how much we might enjoy a cigarette.
Yet some behaviors are so wrapped up inside our right to liberty that they are beyond regulation. In our constitutional law, these behaviors are off-limits to government regulation under the heading of “substantive due process.” Many abortions are removed from government regulation as a matter of the freedom of self-determination that is protected by substantive due process. As part of substantive due process, what a woman might do when her having sex leads to pregnancy is up to the woman and not the government. Neither the man responsible for the conception nor the parents of the woman or of the man, nor bystanders of religious faith have any legal say in the matter.
What about homosexual behaviors? When might they be regulated by government? The standard would be parallel with heterosexual practices: when they become abusive of a person’s human dignity and welfare, when the freedom of one person goes too far and harms another. Thus, sexual assault, rape, unwanted touching, harassment, pornography, etc., would be properly criminalized for every kind of sexual advance. Here we seek to regulate not beliefs but actions that impose on others.
And marriage? Why should the government, as opposed to churches, decree the terms of marriage as an honorable estate between two people?
Provision for the holy estate of matrimony began in Christian political communities when there was no separation of church and state. The Church supervised the state, and the state was subordinate — an instrument of the church’s worldly mission to provide for the salvation of all souls.
In the 1500s, when the Roman Catholic monopoly of church and state was broken by the Protestant Reformation, the new Protestant churches in political jurisdictions under their control picked up the past Catholic practice of having the state enforce religiously required practices such as the prohibition of work or trade on Sundays, recognition of only certain forms of marriage, school curricula and criminalization of unrighteous sexual practices. Such regulation of sexual expression remained an accepted political and cultural norm until very recently, when campaigns for women’s rights and gay liberation challenged those religious conventions.
The challenges to conventional sexuality and forms of marriage by advocates of feminism and gay rights triggered opposition by those who do not value what they consider to be promiscuous and religiously compromised behaviors.
Of course, from the perspective of freedom of religion and belief, such beliefs on both sides are a protected form of liberty beyond the reach of any official thought police. The line of freedom of belief is crossed, however, when any believer seeks help from the state to impose his or her beliefs on nonbelievers.
The state need only regulate property and citizenship, not what is demanded by one religion or another.
Churches can be free to solemnize whichever marriages fit their religious beliefs. If they refuse to consider homosexual relationships as deserving of the sacrament of marriage, that is within their freedoms. If they agree to sanctify and bless such relationships, that would also be within their liberties as a faith community in a free society.
Such plurality of marriage conventions over homosexual unions would split religious communities into different congregations. But that has already happened in some Christian denominations around issues of female ordination and homosexual marriage. Americans are free to belong and worship where their beliefs take them.
Once the moral status of a marriage has become a matter of private ordering, the residual role of the state would primarily be to maintain registries for the future allocation of property rights among individuals who voluntarily establish family relationships.
Upon the termination of such registered relationships by death or divorce, property rights would be allocated as provided for by the parties to the relationship contract. The state provides this public service for ownership of real property and security interests supporting loans of money.
Joint ownership of property by parties to a registered relationship would not be presumed but must be proven by the party seeking ownership rights. Other preferential advantages, such as health benefits, insurance payments, and hospital visitation rights, would be established by contract in order to be enjoyed by the party seeking to benefit from a registered relationship.
In cases when no relationship contract exits or the contract is defective, courts can use traditional principles of equity to allocate property. Rules such as transfer upon death to spouse/partner, parents, natural or adopted children, or siblings can evolve from current law. Past practices involving common-law marriages, deaths where there is no will or testament, and contested divorces would shape future law.
Such separation of religion and state in matters of personal sexual expression would go far to end our cultural war and permit a rebirth of one American nation, indivisible with liberty and justice for all.
