Paul Hughes

The evolving story of a hopeful skeptic.

November 8, 2012 Law, Religion , , , , , By Paul Hughes

In Support Of The First Amendment, or Why Gay Marriage Should Be Legal

The first amendment reads as follows:

Bill Of Rights“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Wow, that covers a lot of ground. The most cited portion of the amendment is probably the part about the freedom of speech and press, but that isn’t the part I’d like to write about today (as you may have guessed). One of the more important parts of this amendment that is in recent years becoming more and more ignored is the first clause—the Establishment Clause.1 “Congress shall make no law respecting an establishment of religion…” Most everyone agrees that part of what this clause ensures is that the government should never set up a “national religion.” What is more debatable is whether the clause is also suggesting the now-prominent idea of separation between church and state.

There are, as one would expect, people who interpret the clause differently from each other. Those who believe that this is a Christian nation and that the government should dictate some aspects of morality are quick to point out that the phrase “separation of church and state” never appears in the original constitution or any of its amendments. Those on the other side of the spectrum point to the various writings of politicians that point toward the clause supporting separation between church and state.

Where does the phrase come from? The first known case of the phrase being used was in a letter from Thomas Jefferson2, part of which reads,

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

Well, that’s pretty frank. James Madison also wrote, in 18223,

“Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together.”

The interpretations of the clause by those who were around when it was written should hold far more sway than the opinions of those people who are guessing what they may have meant. There should be no guesswork about it—look at the primary sources!

So why have I spent time establishing that our forefathers were proponents of separation between church and state? Because I fear the growing number of people who believe that church and state are something that should, in fact, be very much mixed. Gay marriage should be illegal, according to many people. But why? The most common reasons people come up with are twofold: 1) Because historically it has been the joining of a man and a woman. Well, I hate to break it to these folks, but historically it also has been ok to own slaves. It was ok for hundreds and hundreds of years! Event the bible says how best to treat your slaves.4 No, “history” is not a good enough reason. But what other reason is there? 2) Religion. God has said that marriage is the joining of a man and a woman, and therefore it should be that way—legally. That is where I have problems. If we accept that there should be separation between church and state (as our forefathers did), then we’ve just admitted that the primary argument against gay marriage should hold no sway in the making of law.

It is a very slippery slope the day we allow religion into the civil sector. I can’t imagine anyone disagreeing that this is a nation founded on freedom of religion, and the day you make law favoring the religious views of one religion, you have blatantly violated the establishment clause of the first constitutional amendment—you have respected an establishment of religion. Outlawing gay marriage is entirely unconstitutional, regardless of how you feel about it morally. Just like those who opposed the civil rights movement in the 1960s, those who believe it is the government’s right to limit the right of an American to marry the person he (or she) chooses are going to feel silly in thirty years. Look at the first amendment and what it stands for. It is your duty as an American citizen to stand up for the entire Bill of Rights; you owe a heck of a lot to it.

6 to “In Support Of The First Amendment, or Why Gay Marriage Should Be Legal”


  1. Paul Hughes says:

    […] found to be violating the Establishment Clause of the first amendment to the constitution (see my last blog post for information regarding the clause, albeit in a different, but still applicable, context). The […]

  1. Paul Hughes says...

    […] found to be violating the Establishment Clause of the first amendment to the constitution (see my last blog post for information regarding the clause, albeit in a different, but still applicable, context). The […]

  2. Carter Stevens says...

    While I agree with what you’re saying, a lot of the push-back I’ve heard from slightly more liberal religious folks (primarily Christians) on the issue of legalizing gay marriage (and this is more for religious marriage, and less for legal marriage) is centered around the term “marriage”.
    Until recently, marriage was a union of two people that was performed and blessed by some religious authority meaning that for most of human history, marriage was a religious thing.
    With that background (i.e. the assumption that marriage has always been in the domain of religion), Some people argue that by allowing gay marriage that the government is actually violating the separation of church and state by telling a religious body what to do with regards to something that has historically always belonged to said religious body. Oddly enough, people who hold the above viewpoint tend to not object with a gay couple getting equal legal rights. They only object to them being called “married”, because marriage is defined as X,Y, and Z according to omnipotent being N. And in most cases, I think, X, Y, or Z say that the couple must be hetero.
    While I do agree that gay people ought to be able to be married (legally AND by religious bodies), I see *some* validity in the above viewpoint.

    • paul says...

      A very interesting point, that I too have heard. Frankly, much (though not all) of the gay community, from what I understand, would be perfectly happy letting go of the term marriage and purely accepting the same legal rights. This is something that I, too, would be fine with—make it so that marriage really is *purely* the domain of religion, and civil unions (or whatever you want to call the thing that would give all couples equal rights) are given by the government. Works for me!

    • Daniel says...

      There is no legal roadblock to gays being “religiously married”. It has no impact on the government, thus the government has no influence on it, nor can it. The issue of legal marriage, however…

      Not long ago, it was illegal for black people to marry white people i n the U.S. Had they decided to put another legal label on the union of interracial couples… I think everybody with a sense of conscience can see very clearly how effed up that would be. Nobody actually owns the term “marriage” just like nobody owns the term “god”, or “dude”, or “freaky”. Words evolve, and “marriage”, which is just an english word for something else that was called something else before that, has been in existence in various forms for a very very long time, was definitely not invented by Christians, and my not even have been invented by Isreaelites.

      On another note, did anybody know about this:?

  3. Frank says...

    I always found this an interesting debate. After much thought, I came to the conclusion that the only way to escape the corruption and political fall-out is to quite literally depoliticize marriage. My own personal views (which no one has to share) are that it is not the place of government to recognize ANY marriage, to issue marriage licenses, or to grant any kind of legal/economic/fiscal benefit to married people simply because they’re married. My extreme (and somewhat libertarian) view says that marriage should be a private contract between whoever seeks it (with a religious affiliation, if you like). It should not be recognized by the government and there should be no reason for which the government need recognize it.

    If you would like to read more, I wrote a lengthy (and rather passionate) note about this.

    • paul says...

      I absolutely could not agree more. I think that’s a very smart way to go about it. The government could offer benefits to life partners if they wanted, by way of a non-discriminatory civil-union-like-substance, but the marriage debate might be solved much more easily if the government just took no part in that word. Thanks, Frank!

      – P

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