Gay Marriage and the Law | Letters | Chicago Reader

Gay Marriage and the Law 

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To the editor:

On September 8 you published a letter from L. Olson containing the following observation:

"To be consistently and not selectively literal in their interpretation of Bible verses, fundamentalists would have to advocate the death penalty for gays, not to mention stoning to death mediums and priests' daughters who become prostitutes."

This observation was clearly made by someone who has never read the Bible, or, at least, never read it carefully enough to remember what it says, as is clear from Leviticus 21:9 that the punishment for priests' daughters who become prostitutes is death by fire, not death by stoning. As for mediums, no punishment whatsoever is mentioned in Deuteronomy 18:11, only a prohibition; and even if Exodus 22:17 were to be applied to mediums, which is a reading not warranted by the text, there is no mention there of death by stoning, the only source for which appears to be L. Olson's imagination. Someone who employs the text of the Bible--or any text, for that matter--for polemics bears a minimal intellectual responsibility to know the text.

Later in the same section, at the top of page 10 [Snips], the Reader published the following bon mot, and labeled it "the perfect question":

"Sam Smith, writing in his newsletter 'Undernews,' suggests that any congressional candidate who's against gay marriage be asked, Would you accept a compromise in which we outlawed not only gay marriages but cheating on your spouse? If not, why not?"

If either Sam Smith, or the editorial staff of the Reader, had troubled themselves to become acquainted with the criminal code of Illinois, they would have known that "cheating on your spouse" is already illegal in Illinois pursuant to 720 ILCS 5/11-7, under which adultery is a Class A misdemeanor. Once again, it can only be said that people who wish to use a text (in this case, the Illinois Compiled Statutes) for polemical purposes bear an intellectual responsibility to acquaint themselves with that text.

As it happens, if Sam Smith, or the editorial staff of the Reader, wish to polemicize about homosexual marriage, they would be better advised to focus not on the adultery statute but on the fornication statute--720 ILCS 5/11-8--which criminalizes all sexual intercourse between people who are not married to each other (no one has been convicted in Illinois under 720 ILCS 5/11-8, as far as I know, since the 1940s, but the statute did figure more recently in the 1990 case of Mister v. A.R.K. Partnership, 197 Ill.App.3d 105, wherein the appellate court reversed a circuit court ruling that had punished a landlord for refusing to rent an apartment to an unmarried couple). Illinois law currently provides a mechanism--i.e., marriage--whereby people can engage in heterosexual intercourse without violating 720 ILCS 5/11-8; however, Illinois law currently provides no mechanism whereby people can engage in homosexual intercourse without violating 720 ILCS 5/11-8. Under Lawrence v. Texas, 539 U.S. 558, this could be characterized as an unconstitutional discrimination against homosexuals. An Illinois Court presented with this argument (to my knowledge, no Illinois court has been) would be more likely to strike down 720 ILCS 5/11-8 than 750 ILCS 5/212(a)(5) and 750 ILCS 5/213.1, the statutes which, respectively, prohibit marriage between two people of the same sex and render invalid in Illinois any such marriages contracted elsewhere. However, a court with a desire to promote homosexual marriage might conceivably use the opportunity to strike down 750 ILCS 5/212(a)(5) and 750 ILCS 5/213.1 while retaining 720 ILCS 5/11-8.

Jay F. Shachter

N. Whipple

Harold Henderson replies:

Thanks for the lesson in Illinois law, but Sam Smith's (and my) question for would-be members of Congress still stands: if you want to outlaw same-sex marriage in order to somehow protect the institution of heterosexual marriage, then why not outlaw the violation of heterosexual marriage vows, which arguably might be more relevant to protecting that institution? There ought to be a pretty good answer. Otherwise we might surmise that their crusade has more to do with antihomosexual bigotry than with any genuine concern for the institution of marriage.

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