Rick Santorum’s recent statement that marriage is a privilege rather than a
right is wildly untrue. Perhaps he sleeps better at night believing that he is
denying people a mere privilege?
In 1967 the US Supreme Court issued a ruling in
Loving v. Virginia (388 US 1) that overturned a ban on interracial marriage and
pronounced marriage a “basic civil right.” Other subsequent cases recognized
marriage as a fundamental right. In striking down a gay marriage ban in 2008,
the California Supreme Court called same-sex marriage a right in its argument
that the government cannot deny one the fundamental right to marry simply on the
basis of gender. Chief Justice Ronald M. George stated in the opinion:
state now recognizes that an individual’s capacity to establish a loving and
long-term committed relationship with another person and responsibly to care for
and raise children does not depend upon the individual’s sexual orientation.
...An individual’s sexual orientation – like a person’s race or gender – does
not constitute a legitimate basis upon which to deny or withhold legal
Supporting the right to do something does not mean one has to
support the actual activity. One can support the legalization of marijuana
without supporting smoking marijuana, just as one can support the First
Amendment right of the Klu Klux Klan to demonstrate while at the same time
condemning their ideology. I support the right of adults to drink alcohol to
their heart’s content (or to their liver’s failure), but I do not support
alcoholism. Is this hypocrisy?
Of course not, because one should recognize that
in a free society, believing in someone’s right to do something does not mean
you have to support what they are doing. The distinction is similar to
recognizing the difference between personal beliefs and what should be public
WHY CAN’T politicians like Rick Santorum and Mitt Romney support
the right to gay marriage without supporting gay marriage itself? As a religious
Jew, I support the rights of gays to marry and receive all rights attendant to
marriage. According to the literal dictates of biblical law, homosexual
relations, lobster, pork and interfaith marriage between a gentile and a Jewish
person are forbidden, but no one would oppose a person’s right to engage in any
of those activities.
Nevertheless, many religious organizations and
politicians single out gay marriage as an exception. None of these organizations
or politicians would support a ban on interfaith marriage or the use of condoms,
or lobby for legislation forbidding people to eat at Red Lobster, despite these
activities being forbidden according to a strict interpretation of biblical
Atheism is also as much against their religion as homosexuality is.
These organizations and politicians would not oppose the constitution’s No
Religious Test Clause, which states that “no religious test shall ever be
required as a qualification to any office or public trust under the United
States,” despite the biblical prohibition against atheism. They should
not oppose gay marriage, either, despite the biblical prohibition against
Religious people and politicians who oppose gay marriage on religious
grounds make a huge mistake by failing to recognize the distinction between
supporting civil rights and supporting the act itself, and they are
hypocritically attempting to impose a cherry-picked biblical law regarding
homosexuality on the rest of society.
Whom someone wants to have sex
with, and, according to the recent trend of jurisprudence and legislation, the
gender of the person they want to marry, has no bearing on the constitutional
right to marry, even if certain religious organizations and political parties do
not support those personal choices. Religious people and politicians should be
comfortable supporting same-sex marriage equality rights without having to
personally sanction the union itself or downplaying the notion of marriage as a
The writer is vice president and chief legal counsel at 1Saleaday.com. He graduated law school in New York, where he served as an executive editor of the law review. He received his rabbinical training at the Rabbinical College of America.