Ethics and the Law

¶ … open today than they have ever been before. While it is a little sad that some states remain set against fully offering the choice of marriage to all who would love another person, regardless of gender, an increasing number of states have become sufficiently open to offer full equality of marriage. At the heart of the debate regarding marriage equality is the idea of whether the law should promote some sort of collective morality by enforcing the dominance of conventional sexual preference or not.

My view is that, although the law does promote a sense of how one should interact with others, i.e. avoiding murder and the like, sexual preference should not form part of what the law allows citizens to do. Devlin (1965, p. 371) suggests that there are those who feel that immorality and criminal offenses should not be synonymous, unless there are public features involved, such as "indecency," "corruption," or "exploitation." According to this view, the law is set up to prevent harm to the public.

When homosexual people love each other and decide to marry, there is no public harm, regardless of what the majority views as moral or immoral in this regard. Also, no homosexual couple who decides to marry has any effect on the marriage of those who do not share this preference. In fact, not allowing people to marry, regardless of sexual preference, is fundamentally unfair and does not adhere to the country's most fundamental law, which is to provide equality for all.

Even from the spiritual viewpoint, the law should not extend to the spirituality or morality of people. According to Devlin (1965, p. 372), the "deeply religious person" may feel that "sin" is a personal issue, which should be the personal business of the person working on his or her own salvation and possibly the spiritual leader who works with such a person. Morality, immorality, and sin are therefore highly subjective and personal issues, even if the majority holds a certain action or orientation to be sinful.

Such a majority view does not necessarily make the orientation or action sinful in and of itself. It is only sinful according to the morality views of the majority. Being a moral concern makes it personal. Sexual orientation falls under this category. Written in 1965, Devlin's work represents a time during which homosexuality was regarded by the majority as sinful. Most people with this sexual orientation conducted their relationships and connections in a strictly private setting.

The fact that it was against the law to have a homosexual relationship robbed a whole sector of society of its freedom. It could be argued that, according to the "moral code" of equality, the law was itself both immoral and contradictory by not allowing true equality to its citizens. Devlin (1965, p. 377), however, points out that it is not this simple. Society, according to the author, has not only a collective legal and political system, but also a moral one.

Using marriage and English law as an example, the author shows that the Christian idea of marriage has become woven into the moral fabric of society in such a way that the majority has come to accept it as the norm. He points out that polygamy is illegal as a basis for marriage, since the Christian model has been adopted as a basis for the British family. This is an important component of living within a community.

Communities make up their collective minds about issues such as marriage and morality, which is why, even though a person might not be a Christian or follow any religion at all, he or she is bound by the fundamental moral laws of the country in order to ensure a stable society. The suggestion is that this also extends to gay marriage, where Christian marriage includes only one woman and one man.

According to the collective morality of society, marriage should only extend, as a right, to a man and a woman who wish to marry each other. According to this view, such a relationship forms the fabric of family and therefore the fabric of society as a whole. This view is also why many fear that gay marriage might affect collective morality, family life, and ultimately the fabric of society itself. In my view, however, this argument has some fundamental flaws.

First, Western society today functions according to rules of democracy, according to which each person is free to choose his or her religion and should not receive any discrimination according to gender, race, ethnicity, or any other differentiating factor. There is no reason to make an exception for sexual orientation. Any society that does so contradicts the fundamental laws of equality. Also, society has changed from a generally Christian-oriented one to one that is more inclusive.

Globalization and immigration have created a society in which many races, ethnicities, and religions are represented. This calls for a change in collective morality. No longer can Christianity be seen as the only "appropriate" or "right" religion. A new system is required according to which laws an morality need to be focused. Hence, the idea of equality can be regarded as the most appropriate for a society in which many religions and orientations are represented.

Form this viewpoint, it then follows that sexual orientation and the rights extended to those with unconventional sexual orientation and marriage requirements should form part of a society that regards itself as completely equal in all respects. Christianity can no longer be used as a basis for the moral law in Western society. It is important to accommodate all religions and orientations represented. Hence, any claim towards using the Christian orientation, especially when it comes to highly personal preferences such as marriage, contradicts the idea of equality.

Another important consideration is family. Those who argue against marriage equality regardless of sexual orientation claim that families in traditional marriages are the "fabric" of society and that any alternative form of marriage would destroy this fundamental basis for society. However, when one examines the issue of conventional families more closely, the amount of abuse and divorce that occur within these families cannot be considered healthy by any stretch of the imagination.

The "traditional" family is hardly the one promoted by TV shows such as "The Waltons." Hence, the claim that these families are somehow healthier than their alternative counterparts is flawed in itself. Furthermore, the claim that sexual orientation somehow threatens.