More on gay marriage

Related Posts: Gay Marriage Again ; Gay Marriage ; Gay Marriage: The Iowa Supreme Court ; Idaho Test Oath ; Morrill Anti-Bigamy Act (1862) ; Edmunds Act (1882) ; Edmunds-Tucker Act (1887) ; Blacks and the Priesthood

I would like to add a few more thoughts on the gay marriage issue.

One of the claims I made in my previous two posts is that many people see gay marriage as a civil rights issue, consequently they will have to go all the way with it, even to the point of threatening religious organizations fighting to preserve traditional marriage.

Most gay marriage activists are adamant that gay marriage won’t force the Mormon church, or any church, to recognize, solemnize or perform homosexual marriages. Many on the religious right don’t have faith in those assurances—neither do I. (For several examples of the tactics being used see
this article by William A. Jacobson, Associate Clinical Professor of Law at Cornell Law School in Ithaca, NY.) In a debate on gay marriage, Lorrie L. Jean, attorney of the L.A. Gay and Lesbian Center, made this chilling comment,

The real danger to religious freedom lies not in treating everyone equally under the law, but allowing any one religious belief to be imposed on everyone else. Thousands of religious leaders, churches and synagogues oppose Proposition 8 -- and they would never do so if their own religious freedom was endangered.
(A gay-marriage Pandora's box?, Los Angles Times.)

She insists that gay marriage will not threaten churches, even quoting one California Supreme Court justice, “[same-sex marriage] will not impinge upon the religious freedom of any religious organization, official, or any other person.” But her belief is clear. Opposing gay marriage is opposing equality before the law, and religious organizations opposing equality are the true threat to religious liberty. As she points out, thousands of liberal churches and synagogues opposed Prop. 8, and they don’t feel threatened. What about those who supported it?

The way I see it, the view that gay marriage does not threaten churches rests upon a peculiar view of immediacy. If it can be shown that in the foreseeable future there is no compelling threat to churches, then any anxiety regarding gay marriage seems unfounded. If society goes along with evolution towards ever more liberal sexual mores, and if this evolution is slow enough, then at any given time the perception that society is headed toward moral morass seems far distant, and even overblown. If evolution from the present, to gay marriage being accepted as a civil right by a political plurality, to the churches accepting and performing gay marriages, is smooth and continuous there is little to worry about. The basically good religious people will eventually come around and realize there is nothing threatening about gay marriage.

The problem with this scenario is many religious organizations are fighting to preserve traditional marriage and they’re good at it. The religious right are very interested in preserving their way of life, passing it on to their children and grandchildren. This threatens the smooth transition scenario. The stubbornness of America’s churches will therefore provoke a degree of “self”-marginalization that otherwise wouldn’t have happened; by their stubbornness conservative churches harm only themselves.

To put it another way, being mugged is nonthreatening if you know that by “willingly” handing over your money you will escape unharmed. You risk harm only if you fight; so if you get hurt it’s your own fault for being stupid.

But gay marriage proponents don’t see it quite like that. To them it’s an act of justice, even an act of love. So conservative churches shouldn’t have the right to fight against what is good and just. Therefore any harm is self-inflicted and deserved. After all, the true threat to religious freedom lies in opposing equality under the law, not in gay marriage itself.

With this in mind I’m not sure what to make of arguments that churches wouldn’t be forced to perform or recognize homosexual marriages. Clearly “encouragement” to conform will be forthcoming. What they probably mean is laws intended to pressure churches to perform or recognize homosexual unions won’t come in the near future. Naturally that’s true. But then again, they believe history is on their side, making coercive tactics unnecessary.

What about the Mormons?

Justin Webb, BBC's North America editor, recently wrote on his blog,

The Mormon church itself - let us be blunt - did not do much for monogamous marriage in the early years of its existence; Mormons did not think much of black people until God told them (in 1978!) to change their ways. In the long term, He will be back...

The message he is trying to get across is that Mormons are basically good people and will eventually come around. The church abandoned polygamy and extended priesthood ordination to black men; the pattern will repeat. Eventually the church will change its stand on gays.

But few people know Mormon history well. Those two aspects of our history are often used to extrapolate what some believe is a likely future scenario. But if the past is a reasonable predictor of the future they’re in for a huge fight.

Misunderstanding our history

A few things can be said about the church’s abandoning polygamy and dropping its priesthood proscription.

The Official Declaration, which changed the priesthood policy, contains the phrase, “the long-promised day has come.” This “long promised day” refers to the expectation, going back to Brigham Young, that eventually the priesthood restriction would be dropped. In 1854 Brigham Young, who took over leadership after Joseph Smith was killed, gave his opinion that, as to the priesthood, “when all the other children of Adam have had the privilege of receiving the Priesthood… then it will be time enough to remove the curse from Cain and his posterity” (JD 2:143). He said this on several occasions and the idea endured in the church.[1]

The belief that there would be a change in the priesthood policy was repeated by other church leaders, but all their statements can be traced to Brigham Young. Whatever you want to make of those statements, the point I’m making here is that the long standing expectation that the priesthood restriction would be dropped facilitated the change in the church’s priesthood policy. (See Blacks and the Priesthood.) And it’s difficult to know how history would have unfolded without those statements by President Young.

Polygamy is another point of misunderstanding. There is an impression that the church abandoned plural marriage because the government applied modest pressure on the church. It was pressure, coupled with the church wanting to be accepted into the American mainstream, that brought about the demise of polygamy. In reality the church was facing a much more serious threat. The legislative campaign against Mormonism began with the Morrill Anti-Bigamy Act (1862), which made bigamy a crime and restricted church owned property to a value of fifty thousand dollars. But it didn’t have much of a bite because enforcement remained in the hands of the Utah Territory which was dominated by Mormons. After the transcontinental railroad was completed in 1869 many people believed the ever increasing number of non-Mormons would civilize us; Mormons would realize the folly of polygamy and abandon it. They were disappointed. It was the Edmunds Act (1882) and the Edmunds-Tucker Act (1887) that applied the real pressure. The Edmunds act says, “no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this section…shall be entitled to vote.” The Edmunds-Tucker act made adultery punishable by three years imprisonment; also, “no illegitimate child shall hereafter be entitled to inherit from his or her father.” It also disincorporated the Church of Jesus Christ of Latter-day Saints. Church leadership was forced into hiding—President John Taylor died in hiding in 1887. The government began seizing church property. In 1870 Utah was second only to Wyoming in granting women the right to vote. However, that all changed with the Edmunds-Tucker act: “it shall not be lawful for any female to vote at any election hereafter held in the Territory of Utah for any public purpose whatever.” In 1885 the state of Idaho passed a law making it illegal for Mormons to vote: “[no person] who is a member of any order, organization, or association which teaches, advises, counsels, or encourages its members…to commit the crime of bigamy or polygamy…shall be permitted to vote at any election.” (See Idaho Test Oath.) In 1887 Nevada amended its constitution to read, “No person shall be allowed to vote at any election in this State…who is a member or belongs to the ‘Church of Jesus Christ of Latter-Day Saints’” (Statutes of the State of Nevada, 1887, p. 156, see also p. 107). In 1885 Arizona passed a law very similar to Idaho’s. It stated that “any person offering to vote may be orally challenged by any elector of the county, on the ground that he is a member of an order, sect or organization which teaches, advises or encourages the practices of bigamy or polygamy” (Laws of the Territory of Arizona, 1885, p. 214). The Arizona law was repealed without being tested. The Nevada law was repealed by the state supreme court in Whitney v. Findlay (1888). The Idaho law was upheld by the United States Supreme Court in Davis v. Beason (1890). (See Joseph H. Groberg, “The Mormon Disfranchisements of 1882 to 1892,” BYU Studies, vol. 16, no. 3.)

These laws were intended to pressure the church into abandoning polygamy—though disfranchising voters can be very politically advantageous. The church saw what was coming. They knew the temperament of the nation and saw clearly that the United States was willing to commit judicial religicide. Facing such a threat they had to bend.

So, contrary to what some people believe, the change in priesthood policy originated from a long standing doctrinal precedent going back nearly 120 years, and resistance to anti-polygamy laws was in fact three decades of civil disobedience ending only because of an existential threat to the church. (See Gordon C. Thomason, “The Manifesto was a Victory!Dialogue, vol. 6, no. 1.)

Final Thoughts

Jerry Brown, attorney general of California, argued (see also here) that gay marriage falls under rights that are “part of fundamental human liberty.” But the idea that gay marriage is a fundamental human right doesn’t seem to work. The way I see it, fundamental rights do not originate with the government. The government has a duty to protect its citizen’s fundamental rights, but it can’t create or void them. Though a particular government might legalize slavery, such a law would violate the basic right to liberty. So arguing that gay marriage is a fundamental right, or part of fundamental liberty, is deeply flawed. They would have to argue for the existence of a fundamental right to government granted relationship validation. Because marriage is granted by governments and/or religious institutions it can’t be fundamental as it requires pre-existing institutions to grant the so-called fundamental right.

But civil rights is another matter. Proponents of gay marriage argue it is fundamentally about equality before the law. But the truth is we are not all equal before the law. Minors are typically given leniency when convicted of a crime. They are not expected to have the appreciation or maturity necessary to be held fully responsible for their actions. This makes perfect sense so the favorable treatment is justified. If the special purpose of marriage is subverted and rejected in gay marriage then there is, arguably, a good reason to oppose gay marriage.

Here is one way of understanding the argument. Q: Why gay marriage? A: So that gay couples are treated equally under the law. Q: Why should gay couples be treated equally under the law? A: To secure rights and privileges heterosexuals have. There are variations on that argument, but what it reveals is a new vision of marriage. By rearranging the priorities behind marriage they will have to find a way to fit procreation and traditional family into their new vision.

There is another point to be made here. If it’s argued that the purpose of gay marriage is to secure for gays equal treatment under the law, and that equal treatment under the law demands gay marriage, they are in a circular argument. Is marriage the means to an end? Or is it the end itself? If marriage is a tool to secure privileges then marriage is not the fundamental thing—privileges may be secured by civil unions or domestic partnerships. But if equality demands allowing two people of any gender to marry their fight is rooted, not in the right to lifestyle choices or securing particular material and social advantages, but rather to erase the distinction between homosexual and heterosexual relationships. But here’s the rub. If they gave reasons why the government should erase those distinctions they would be arguing that marriage is not the fundamental thing. So long as they don’t clarify which is fundamental—a new vision of marriage or benefits—their arguments appear consistent.

Alas, avoiding specificity is the politically smart move. Because the reasons for supporting or opposing gay marriage vary from person to person proponents will play these approaches to maximize their political advantage. But ultimately gay marriage advocates will never be satisfied so long as there is a legal distinction between heterosexual and homosexual relationships. Gays want to be thought of with equal regard; they want something that publicly says they are not other. So for them a new vision of marriage is fundamental.

But is the rightness of gay marriage true for you? Or true for all? If you are going to foist beliefs on others they better be true for all. And if they are true for all there must be some common standard against which to determine its veracity. But because it is difficult to reduce fundamentals it isn’t obvious any such common standard exists. So it must be approached in a non fundamental way. Historical precedents for example—but there is very little historical evidence that homosexual relationships were ever thought equivalent to heterosexual ones; this is true even in societies having no stigma against homosexuality.

In the gay marriage issue two very different worldviews are facing off. One denies traditional morality, traditional meaning and purpose, and seeks a new vision of marriage that permits two people of any gender to marry. Having rejected traditional values they see only the legal inequalities. So in their view opposing gay marriage is a denial of basic justice. The other worldview seeks to preserve traditional marriage, a traditional sense of meaning and purpose. A meaning and purpose we believe transcends individual desires and human capriciousness, which is why we resist the leveling process.

Equality and sameness; purpose and meaning. If one is taken to the extreme the other is excluded. In other words, the carpet isn’t big enough to cover the floor. No matter how you move it around something will be left uncovered. Heterosexual relationships propagate the human race; the divergent male/female sexuality has a stabilizing effect on heterosexual relationships, which helps with propagation. A home with a father and mother is ideal for children: daughters learn about fathers, sons learn about mothers. All of this is unique to traditional marriage.

As to the legislative campaign against Mormonism during the 19th century, one should remember why it was possible. The temperament of the nation allowed it. After three decades of
encouragement the patience of the nation had become exhausted. Government seizure of church property was upheld in Mormon Church v. United States (1890). One section reads,

The pretense of religious belief cannot deprive Congress of the power to prohibit…[all] open offenses against the enlightened sentiment of mankind.

And that is REALLY scary.

End Notes_______________________________________
[1] In 1859 he said,

That curse will remain upon them, and they never can hold the Priesthood or share in it until all the other descendants of Adam have received the promises and enjoyed the blessings of the Priesthood and the keys thereof. Until the last ones of the residue of Adam's children are brought up to that favourable [sic] position, the children of Cain cannot receive the first ordinances of the Priesthood. They were the first that were cursed, and they will be the last from whom the curse will be removed. When the residue of the family of Adam come up and receive their blessings, then the curse will be removed from the seed of Cain, and they will receive blessings in like proportion.
(JD 7:291)

In 1866 he said,

when all the rest of the children have received their blessings in the Holy Priesthood, then that curse will be removed from the seed of Cain, and they will then come up and possess the priesthood, and receive all the blessings which we now are entitled to. (JD 11:272)

He also said,

Cain shall not receive the priesthood, until the time of that redemption. Any man having one drop of the seed of Cain in him cannot receive the priesthood; but the day will come when all that race will be redeemed and possess all the blessings which we now have. (Wilford Woodruff: History of His Life and Labors, p. 351)

It is interesting to note that in his book The Way to Perfection (published 1949) Joseph Fielding Smith, then an Apostle, used the last two passages given above (p. 107 and 106 respectively), and the quote included in the main body of this post (p. 106), as a precedent for a forthcoming change in priesthood policy. He also used these quotes in his book Answers to Gospel Questions (originally a monthly series in the church magazine Improvement Era in 1953)
for the same purpose. He wrote,

[the Negro] may be baptized for the remission of his sins and receive the gift of the Holy Ghost, and if true and faithful to the end, he may enter the celestial kingdom…Salvation in the Kingdom of God is open to him, with the promise that in the due time of the Lord, if he receives the gospel, all restrictions will be removed.
(Answers to Gospel Questions, vol. 2, pp. 177-178)


  1. Some people are under the impression that we gave up polygamy to become a state. This is very far from the truth.

    For example FACTBOX: Mormonism a growing religion, Reuters (Thu Feb 5, 2009 8:11pm EST),

    "The Mormon church originally allowed polygamy. The custom was officially banned in 1890 when Washington, angered by its spread, threatened to deny statehood to Utah."

    And the notes on the show Marriage and Monogamy from Philosophy Talk,

    "Monogamy is traditional in most cultures, and it is the law throughout America since Utah gave up polygamy to acquire statehood."

  2. In the 23 Feb. 2009 issue of the American Conservative, "Mormons at the Door", Michael Brendan Dougherty writes,

    "Polygamy was suspended in the LDS church once statehood was offered to Utah, and blacks were allowed to enter the Mormon priesthood not long after protests made Mormon beliefs in the origin of racial differences a national embarrassment. Christians may ask: will the LDS church eventually leave behind its current social commitments?"

  3. See "Religious-protection issues on marriage pose legal quandaries," by Peter Steinfels, New York Times News Service at Mormon Times.

    "For some time, scholars have debated this issue, and some are now urging states considering same-sex marriage laws to include strong protections for religious organizations. Some are even suggesting protections for individuals and small businesses who offer services for weddings -- like photographers, florists, caterers, bakers, wedding planners and musicians. The argument is that these individuals and businesses might have religious objections to gay couples' marrying and could be exposed to sizable fines or strong penalties under nondiscrimination statutes.

  4. See "How Far Will Mormons Go to Fight Gay Marriage?," by John Aloysius Farrell at US News and World Report.

  5. See 'The Mormons Are Coming!' by By Karl Vick, Washington Post Staff Writer.

    "As more states take up the debate on same-sex marriage, some advocates of legalization are taking a very specific lesson from California, where the Church of Jesus Christ of Latter-day Saints dominated both fundraising and door-knocking to pass a ballot initiative that barred such unions.

    "With the battle moving east, some advocates are shouting that fact in the streets, calculating that on an issue that eventually comes down to comfort levels, more people harbor apprehensions about Mormons than about homosexuality.

  6. See also Blake Ostler "Prop 8 comment (that is now a Prop 8 post)" at New Cool Thang blog.

    "The tax exempt status of churches may be challenged. You state flatly that this is a 'false consequence,' arguing that the argument is based on a New Jersey case. In fact, it is easy to see how the challenge can and will arise. As you are well aware, the concern is actually based on Bob Jones University v. United States, 461 U.S. 574 (1983). For those interested, here is a short link: It is easy to see how Bob Jones could be extended in California to deny tax exempt status to the Church in many respects (education, social services,etc.) in California if Proposition 8 fails. Here is how: the Ca. Supreme Court held that the right to SSM is a 'basic and fundamental right' that is on par in every respect with traditional marriage. Those who deny 'fundamental rights' to others can be denied tax exempt status. Nor is the LDS Church the only organization to express such concerns. See e.g., I’m surprised that you didn’t discuss this possible extension of the rationale of the Bob Jones case.

  7. In the July 1877 edition of Scribner Monthly author John Hanson Beadle wrote and article titled "The Mormon Theocracy". In it he wrote,

    “Americans have but one native religion, and that one is the sole apparent exception to the American rule of universal toleration. ...Of this anomaly two explanations are offered: one, that Americans are not really a tolerant people and that what is called toleration is only such toward our common Protestantism, or more common Christianity; the other, that something peculiar to Mormonism takes it out of the sphere of religion”

    John Hanson Beadle also wrote:

    Western Wilds, and the Men who Redeem Them: An Authentic Narrative

    Life in Utah, Or, The Mysteries and Crimes of Mormonism

    And coauthored

    Brigham's Destroying Angel: Being the Life, Confession, and Startling Disclosures of the Notorious Bill Hickman, the Danite Chief of Utah

  8. Another example that many people believe that Mormons abandoned polygamy to fit in with mainstream America

    "Many Mormon women took a dim view of plural marriage, including Joseph Smith’s first wife, Emma, who, when she was shown a written transcript of this particular revelation, snatched it and threw it in the fire. Even before the Church of Latter-clay Saints decided to drop its plural-marriage doctrine in order to comply with federal law and clear the way for Utah’s admission, in 1896, to the Union, not more than three per cent of Mormon families were polygamous. But it was polygamy that gave Mormonism a bad name and turned a quiet sect of industrious, hard-working, (locifearing people into one of the anathemas of the Victorian world. 'A society of fanatics, controlled by a gang of licentious villains,' wrote a Mrs. Ferris in Life Among the Mormons." (She Who Shall Be Nameless, American Heritage, February 1965, vol. 16, no. 2)

  9. Here is a statement from Supreme Court Justice David H. Souter that liberty and equality can clash. "Text of Justice David Souter’s speech," at Harvard Commencement Thursday, May 27, 2010. The full paragraph is given.

    "Even the First Amendment, then, expressing the value of speech and publication in the terms of a right as paramount as any fundamental right can be, does not quite get to the point of an absolute guarantee. It fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law." (italics mine)

  10. From BBC News, "Austrians seek right to partnership created for gays," by Phil Cain.

    "A heterosexual Austrian couple [Austria Helga Ratzenboeck and Martin Seyd] have embarked on a court battle to have their relationship legally recognised as a 'registered partnership' - a new form of civil union for same-sex couples."


    "As the number of straight French couples opting for Pacs [pacte civil de solidarite] has grown, the number of marriages has shrunk, to the point that there are now two couples entering into a Pacs for every three getting married."


    "The Constitutional Court turned down the idea of marriage for gay couples in 2003, on the grounds that the purpose of marriage was reproduction."


    "Delphine Rorive a 31-year-old management consultant 'Pacsed' her boyfriend Frederic Morel, 29, in July last year." Delphine Rorive is quoted as saying, "We just wanted to pay less taxes...To us, it was only an administrative process. We had an appointment at the court at 0800 one morning, just the two of us, and 15 minutes later we were outside, Pacsed and ready to go to work, which we did."

  11. An NRO article on New York gay marriage issue. "Freedom as a Bargaining Chip?"