For Part #1 of this article, please go to the following link: https://theprogressivecynic.com/2013/03/21/refuting-anti-gay-arguments-part1/
7) “It is a violation of the 1st Amendment to ban religious people from discriminating against gays.”
While everybody has the 1st Amendment right to believe in and practice a religion of their choice (or no religion at all), nobody has the right to violate another person’s civil rights in service of their religion.
In accordance with the protections of the 1st Amendment, the government is severely restricted in its ability to interfere with the internal workings of religious institutions and has no ability to exert control over religious dogma. Any religious organization can preach hatred towards homosexuals without fear of interference (case in point: the Westborough Baptist Church), but this protection has its limits.
Religious people/organizations have the constitutional right to:
- Label homosexuality a sin and condemn it in their churches.
- Refuse to perform gay marriages.
- Deny religious employment to any homosexual without worrying about discrimination lawsuits (ex. the government cannot force the Catholic Church to ordain a gay priest)
- Protest against homosexuals in a non-violent and orderly manner.
Religious people/organizations do not have the constitutional right to:
- Enforce their religious beliefs on others by inserting their sexual morality into law (ex. anti-sodomy laws).
- Preach or perpetrate violence against homosexuals.
- Attempt to forcibly “cure” homosexuals against their will (ex. kidnapping and attempting exorcisms)
- Engage in political activity that would violate a church’s non-profit status.
Basically, every religious person and organization has the ability to control their own personal beliefs and religious ceremonies, but their right to religious freedom ends when their conduct begins to harm others. Our government must stay out of churches, mosques and synagogues, but this also requires for religious institutions to be banned from encroaching on public life. If somebody believes in a religion, they can voluntarily put themselves under the religious laws/requirements of their faith, but these laws should have no effect on those who do not choose to be in the religion.
In short, you do have a 1st Amendment right to be a bigot until you start harming others. At that point, your conduct ceases to be protected religious beliefs and becomes a burden on others.
Most commonly, this argument is used to justify religious hate speech against homosexuals and to avoid anti-bullying laws. In terms of federal law, as long as an individual is not inciting violence, trespassing, or presenting a hazard, they are able to say even the vilest anti-gay rhetoric. The Snyder v. Phelps et. al. decision in 2011 decided that even the repulsive and disruptive funeral protesting of the Westborough Baptist Church was protected speech until they crossed these important lines. Unfortunately, this justification allows many religious groups to openly preach hatred against homosexuals while leaving there to be virtually no way to stop them.
Fortunately, the ability of religious groups to hide behind the 1st Amendment ends at their ability to extrude homosexuals from their ranks and say terrible things. Any time that a religious group attempts to claim that the 1st Amendment protects their right to legislate their beliefs, remind them of the establishment clause of the 1st Amendment. Just as their religious beliefs are protected from government intrusion, the amendment prevents them from inserting their religion into law. If they reject the idea that religions are barred from inserting themselves into politics, you can simply remind them that their religion isn’t the only one and that this protection is what prevents other religions from imposing on their members
There are situations which are illegal regardless of religious beliefs. Violence or calls for violence are against the law regardless of the perpetrator’s religious persuasions; as such, any hate crimes perpetrated by religious groups are not covered under the 1st Amendment’s protection of religious conduct. If an individual is calling for violence against gays (ex. sanctioning gay bashing or physical bullying) or perpetrating it themselves, they should be hit with not only the full force of the law, but any hate-crime sentencing enhancements that are applicable.
8) “Homosexuality isn’t protected by the law because sexual behavior is a choice.”
In order to make this argument, people make two specious assumptions: first, they assume that homosexuality is a choice and second, they assert that they have the right to legally ban a lifestyle choice which harms nobody.
First of all, most of the evidence that is available today indicates that homosexuality is at least partly biologically hardwired. It is no more a choice than whether or not one is left-handed or right-handed. It is likely that upbringing has some effect on sexual orientation, but it is still undeniably that the biological component has a significant effect on sexual orientation.
As an inborn characteristic, homosexual attraction is not something that can be changed and is not something that the law should discriminate against. Homosexuals harm nobody and deserve to have as much choice in their relationships as any straight American. Discriminating against gay people is as unfair as discriminating against a racial group—neither can change who they are and should anybody expect them to try.
Ultimately, even if homosexuality were a choice, there would still be no legal justification for the US government banning it. As I have previously mentioned, there is no compelling governmental interest that would justify the government interfering in the personal sex lives of gay Americans. This was confirmed in Lawrence v. Texas and there is simply no way for the government to constitutionally bar homosexuals from being in relationships.
Our country was founded, at least in part, on the idea of personal liberty and the right of individuals to control their own lives. To this end, our government is not able to restrict private conduct that has no negative consequences for others.
When people make this argument, they are almost always saying that homosexuals should ignore their natural attractions and should simply not engage in homosexual sex; sometimes, these people even suggest that entering into a relationship with a person of the opposite sex can turn them straight. Basically, they don’t care if homosexuals don’t change who they are, they just don’t want them to act on their attraction. This argument is just wrong on its face and almost always ends badly. When individuals repress their sexuality, they often develop severe psychological issues, including depression, suicidal thoughts, binge/deny behaviors, and misdirected sexual attraction (ex. celibate priests molesting children). Such behaviors are not healthy and can often result in harm to the individual as well as collateral damage to those around them.
My argument against this assertion is very simple: Unlike homosexual attraction, homosexual activity is a choice and is up to the individual. Just as Americans may choose their diet and their favorite type of music, everybody can choose who they are attracted to and what they want to do with their consenting partner. The second that we let our government start intruding on the personal lives of homosexuals, we open our own lives up to scrutiny. If the government can interfere in the sex lives of homosexuals, then it can reach into anybody’s lives and interfere with any activity of choice.
As a special note, I would also point out that religious and political affiliations are both choices that are just what anti-homosexual activists describe homosexuality as: voluntary activities that somebody can deny if they truly want to. If the government can say that homosexuals cannot engage in sex with the people that they choose, what prevents them from singling out a political party and saying that they cannot engage in the activities of their choice? After all, political activity is a choice and anybody can choose to re-orient themselves to another ideology. Almost anybody would say that such interference into a person’s private activities is a massive violation of privacy and personal choice. Despite this consensus, many still attempt to force homosexuals to change their personal behaviors. Is sexual conduct less personal than political expression?
9) “Gay people already have equal marriage rights because they are allowed to marry a person of the opposite sex.”
This argument is simply a rehashing of the old segregationist idea that interracial marriage isn’t a civil rights issue because everybody has the equal right to marry somebody of the same race. Just as with the issue of interracial marriage, this argument is false on its face and does nothing to mitigate how unfair the situation is.
“Each [party seeking to marry a member of a different race] has the right and the privilege of marrying within his or her own group.”
Perez v. Lippold dissenting opinion
The simple fact that an individual has the right to marry somebody that they don’t want to does nothing to blunt the intrusion when the government prevents them from marrying the person who they care for. Put plainly, we saw this movie before and we know how it ends: such ridiculous arguments are rejected by the courts and the right of people to marry the person of their choice is upheld—bigotry loses and logic prevails.
10. “Gay couples should be availed equal legal status but we shouldn’t call this status marriage.”
People who support this argument mean well—they are at least trying to make an effort at promoting equality—but they don’t propose a long term solution for gay equality.
Creating a pseudo-marriage statute (such as civil unions) in order to achieve compromise between the religious and homosexuals sounds good, but is actually only the perpetuation of bigotry. The creation of a stop-gap status in order to placate the gay community would reduce the pressure for politicians to push for true equality and would force gay couples into a legal second-class status.
Separate but equal has never worked in issues of civil rights, and there is no expectation that it would work with gay marriage. Just as with racial “separate but equal” laws, separation would easily be achieved, but equality would likely never arrive. It is highly likely that conservative states and groups would reduce the rights of gay couples far below that of straight couples if two types of marriage were to be created.
There is one potential solution to the problem created by this argument, but it would likely be politically impossible to pass. This solution would be to simply eliminate secular “marriage” and create one statute that would encompass all secular “marriages” and “civil unions.” The state would create a secular label for the current marriage bond and would leave the entire language of marriage to be decided by religious groups and the individuals. If a religion or couple wants to call their bond marriage, then that is their choice, but the state would refer to the bond in a religiously neutral manner; people who are currently married would be unaffected other than the legal label of their bond being changed in the tax code/law books. In essence, this would ensure that every couple—gay or straight—would have the rights guaranteed under current marriage statutes (preferential tax statuses, spousal privilege, etc.), but no religion could claim that the marriage bond is being sullied.
11. “Gay couples cannot produce children so they should not be given the right to marry
The ability to reproduce is not, and has never been, a legal requirement for marriage. Adding such a requirement for the right to marry now is both unfair and would have serious legal ramifications.
First of all, adding the ability to reproduce as a requirement to marry is just an excuse to discriminate against gay people. There is no rational reason why the government would impose such a requirement on couples who wish to marry (we aren’t exactly facing a shortage of reproducing couples). Put plainly, this requirement is reverse-engineered to ban gay marriage equality and serves no purpose in the secular law
If we should prevent gay couples from marrying simply because they cannot reproduce, then why shouldn’t we stop other infertile Americans from being married as well? Men with low sperm counts, who have had vasectomies, or who have another type of reproductive disorder are as unable to reproduce with their partner as any homosexual; the same for women who are post-reproductive age, infertile due to illness, or who have undergone sterilization surgery. Banning gay marriage based upon this requirement would throw the marriages of these infertile individuals into question and would illegitimize a huge percentage of marriages.
Anybody to make this argument should be very careful what they wish for: if they get their way, they may find that their marriage ends as soon as they are too old or sick to reproduce.
12. “Gay marriage opens up a slippery slope to marriage with animals, children and inanimate objects”
There is no nice way to say this: If you are using this argument, you are either incredibly stupid, believe that your listener is incredibly stupid, or are dredging up the bottom of the barrel for justifications for your bigotry.
In marriage—gay or straight—two legal adults are making a consensual vow to become legally bound in marriage or civil union. As animals, children and inanimate objects are incapable of consenting to such a vow, there is no comparison to be made with gay marriage. Equating the consensual marriage of two adults with child or animal marriage is taking the slipper-slope argument to an absurd and ridiculous extreme.
Just as with several other anti-gay rights arguments, this one is a retread of an old anti-interracial marriage argument:
“The underlying factors that constitute justification for laws against miscegenation closely parallel those which sustain the validity of prohibitions against incest and incestuous marriages.”
Perez v. Lippold dissenting opinion
Despite what the bigots argued back then there was no flood of incestuous marriages after interracial marriages were legalized in the United States. Now, the same type of argument is being used by a new group of bigots to attack gay marriage equality—unsurprisingly, these assertions will turn out to be just as false as the anti-interracial marriage assertions were during the last big fight over marriage.