April 6, 2015

Why C-SPAN put on a guy from a group that outright hates gay people, I do not know. But they did.

In order to buy Family Research Council President Tony Perkins' argument for why RFRA laws are necessary, you have to toss the idea of the separation of church and state right out the window and assume that we live in a theocracy, similar to the way the anti-miscegenation proponents presumed that the white race was superior to all others and necessarily needed to remain pure by banning racial intermarriage. That alone undercuts Perkins' claim that one of these things is not like the other.

Appearing on Newsmakers Sunday, Perkins claimed that there is no Biblical foundation for racial discrimination, but claimed marriage as a Biblical institution which is therefore governed by Biblical principles reserving marriage for one man and one woman. Therefore, Perkins argues, it is perfectly reasonable to allow businesses to discriminate based upon their religious beliefs.

It's all smoke and mirrors, and Perkins knows it. He's presenting the public relations argument for why states should be allowed to discriminate against gay people who want to have the same civil benefits marriage brings -- financial and familial -- while pretending that Biblical principles have some standing in front of the Supreme Court.

Even the Family Research Council amicus brief doesn't argue that. Instead, it uses the same argument used to discriminate on the basis of race in the Loving case. Worse yet, they claim in their brief that the laws in states which define marriage as between one man and one woman weren't intended to discriminate against LGBT couples. That was just a happy accident!

This short clip has echoes of our miserable past history with regard to interracial marriage. While Perkins claims there's no similarity between the two, many others disagree. Vermont Law School Professor Greg Johnson lays it out clearly.

Far more fascinating to me, though, are the many, many cases before 1948, which upheld bans on interracial marriage. I have had the unpleasant task of immersing myself in this disturbing jurisprudence. The arguments made in these cases are strikingly similar to arguments made today against same-sex marriage. These arguments include religion and natural law, procreation, concern for the children, deference to the legislature,16 and the slippery-slope argument (that is, allowing interracial marriage will lead to polygamy and incest).17 The ultimate rejection of all these arguments in the interracial marriage context may speak to their long-term viability in the same-sex marriage debate.

It also shatters Perkins' argument that the opposition to same-sex marriage does not stem from the same place that the ban on interracial marriage originated:

My study of the sizable body of jurisprudence upholding bans on interracial marriage convinces me that the traditional definition of marriage largely is a by-product of historical injustice. What the court says about the “idea” of same-sex marriage was equally true for interracial marriage until recent times. From the origin of this country and for centuries after, “it was the accepted truth that for almost everyone who ever lived, in any society in which marriage existed, that there could have been marriages only between participants” of the same race.47 One can try to dismiss this fact with ennobling language about the valiant fight against racism, but this does not make the inconvenient truth go away. What interracial couples sought then was seen by many, many people as an abridgement of the traditional definition of marriage and a disruption of a divinely inspired natural order. Sound familiar?

These RFRA laws are cropping up all over the country because the religious right extremists in the Republican Party expect the U.S. Supreme Court to strike down discriminatory laws banning same-sex marriage. It is their way of saying that they might have to allow the state to recognize same-sex marriage, but they don't have to like it and they're just fine if private businesses engage in Jim Crow tactics to fight it.

Memo to C-SPAN: Put anyone on you like, but don't let them pretend they're not advocating for outright discrimination against gay people, or that marriage as it exists in this country is solely the province of churches. How about some pushback or counterpoint on that? It wasn't all that difficult for me to find some.

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