There is a question I cannot answer, at least to my satisfaction. I am trying to finish my second book, “The Clobber Passages: Biblical and Constitutional Arguments Against Marriage Equality.” But everything I think I have made the final revision before editing, the courts decide yet another state has violated the United States Constitution’s Fourteenth Amendment concerning equal protection. As of this writing, 17 states and the District of Columbia, either by statute or by court decision, now recognize same-sex marriage. Well, almost each of the 17 states. Utah and Oklahoma rescinding of state constitutional amendments are on hold, waiting for the appeal process to be completed. But why just the Fourteenth Amendment? Why are these laws not a violation of the First Amendment’s “Establishment Clause” as well? My research shows that every argument against marriage equality reverts back to the six to 14 (depending on who is counting them) biblical passages collectively known as the Clobber Passages. If this is in fact the case, are not such laws establishing a religious basis for their existence? From Genesis 2 where God declares Adam and Eve to be man and wife, to New Testament passages declaring that men having sex with men is a sin, the Bible appears to be the sole source of the “traditional marriage” argument. Most of the arguments surround a misreading of the story of Sodom and Gomorrah, believing that the men of the city wanted to have sex with the two angles representing God. This is wrong. The two cities were not destroyed because of sexual misdeeds, but because the people of the cities would not accept the God of Abraham as their god. Ezekiel 16:46 tells us that the sins of Sodom and Gomorrah were that of “pride, lots of bread, and the careless ease that she [Sodom] and her satellites [Gomorrah] had.” In fact, there is nothing in Genesis that states the sins of Sodom or Gomorrah included male-on-male gang rape or male-on-male consensual or non-consensual sex. There appears to be nothing concerning the sexual lives of the residents at all. The sexual component appears to come from a mistranslation of the Hebrew for “to know.” It appears that later versions of the Bible use language that was not available to those writing scripture prior to the mid-1500s. “To know” did not take on the sexual component until the early 1700s. We do not see the sin of homosexual relations until Leviticus 18:22 and 20:13, “Do not have sexual relations with a man as one does with a woman; that is detestable.” Yet nowhere in the biblical passages does it say that women cannot have a sexual relationship with another woman as she would a man. So, if the biblical argument is to be had, then only homosexual relations should be considered sinful, not lesbian relations. Anyway we look at the arguments, they turn biblical in nature. I can only assume that the courts are afraid of taking up the religious question, though the measurments are already in place: The Lemon Test. In Lemon v Kurtzman (403 US 602) that Court said that a law needs to meet all of the following tests:
- Does the legislation have a secular purpose. No, for in this case the basis of the legislation or state constitutional amendment is based in sectarian lore;
- Does the law prohibit or restrict religion? The answer here is yes. The law is not saying that one cannot believe in the inerrant truth of the Bible. It is saying that religion is to be the basis of the law and that religion is following the beliefs of the Bible, and;
- Does the law foster an entanglement of religion? Again, the answer is yes for the reasons given above.
Missouri’s own Article I section 33 states, “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman” needs to come to the same question as those of other states; is it in violation of the Fourteenth Amendment to the Constitution and, in turn, the First Amendment? I believe the answer is “Yes.”