Gay Marriage: The Iowa Supreme Court

Related Posts: Gay Marriage Again; Gay Marriage; More on gay marriage

I keep going on about the gay marriage debate. And I admit, it is not always directly connected to Mormonism. But I feel this debate will become rather more heated than it already is, and religion will be closely scrutinized because of its connection and effectiveness in opposing gay marriage. This will broaden the debate. The Iowa Supreme Court in overturning Iowa's Defense of Marriage Act has in its final decision set a precedent that I believe is disturbing. Some of my arguments are mentioned below. Additionally, they inserted religion into their legal thinking. Though they admit religion was not brought up during the case, they decided to mention it anyway. Near the end of their decision they write,

We [now] consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. (p. 63)

The Court’s decision need only to be based on the arguments and evidence presented. But they took the initiative and inserted religion. They believe, “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage.” Apparently, evidence alone is insufficient if a suspected religious motivation exists. The court believes more should be said, writing, “State government can have no religious views, either directly or indirectly, expressed through its legislation” (p. 66).

So I'll begin.

Lou Dobbs
I was watching Lou Dobbs on CNN the other night. A debate about gay marriage was going on and the person on the opposing side made the point that gay marriage would further divide marriage from the idea that children should be raised by their biological parents. The pro side made the point that gay marriage is discriminatory and should be ended on that basis; gay marriage was the moral thing to do.

My own thoughts
When the Iowa Supreme Court decided unanimously, unilaterally to disregard the will of the people of Iowa, overturn the Defense of Marriage Act, and institute their own definition of marriage to replace the one enacted by the state legislature, it was done from the view of equal protection before the law. (See Iowa Supreme Court Decision No. 07–1499, April 3, 2009). However, as every lawyer knows, the purpose of the law is to make discriminations, that is, to make distinctions between people and classes of people: criminals from non-criminals; felons from non-felons, minors from adults; legal citizens from illegal aliens, etc. The discrimination created by law speaks to the purpose of those laws. If one were to argue that because minors are often given special consideration when found guilty of a crime that adults should be given the same treatment one would be arguing those laws have no essential function. If it were argued that people have a right to claim social security benefits at any age they would be arguing there is no important rational behind retirement laws. If one were to argue that laws granting special privileges to married couples should be given to all persons, regardless of marital status, one would be arguing there is no special purpose to those laws. So if discrimination is the question how does one decide what is bad discrimination when the very purpose of the law is to create classes of people to which laws and privileges do and do not apply? The Iowa Supreme Court has addressed this question.

Equal protection demands that laws treat alike all people who are similarly situated with respect to the legitimate purposes of the law. (p. 25)

Therefore, “to truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who are similarly situated with respect to the purposes of the law alike” (p. 27; italics original). Thus, to use my own examples, the blind cannot be barred from marrying because they are similarly situated with respect to the purpose of the law; people from different socioeconomic backgrounds cannot be barred from marrying because they are similarly situated with respect to the purpose of the law; a man and woman of different races cannot be barred from marrying for the same reason, they are similarly situated with respect to the purpose of the law.

But what does similarly situated mean? The Court points out that no two people, or groups of people, are identical. Therefore, similarly situated cannot be taken to mean identical—some latitude must be permissible. But in order to address the meaning of “similarly situated” one must first determine the purpose of the law.

So what are the purposes of marriage laws? The Iowa Court has listed several which they believe outline the purpose of marriage.

1) Iowa’s marriage laws “are rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.”
2) Civil marriage is “a partnership to which both partners bring their financial resources as well as their individual energies and efforts.”
3) “These laws also serve to recognize the status of the parties’ committed relationship.”
4) “The marriage state is not one entered into for the purpose of labor and support alone, but also includes the comfort and happiness of the parties to the marriage contract.”
5) “[Marriage] is not a mere contract, but is a status.”
6) “Marriage changes the parties’ legal and social status.”
(p. 27-28)

Earlier in their decision the Court mentioned several difficulties mentioned by the plaintiffs, difficulties that accompany not being permitted to marry. They are

1) Life and death decisions affecting their partner.
2) Health care, burial arrangements, autopsy, disposition of remains following death.
3) Denial for partner’s state-provided health insurance and pension benefits; as well as private-employer-provided benefits and protections.
4) Spousal health club memberships.
(p. 9)

Following this the Court writes,

Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. (p. 9)

The Court concludes, “Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons” (p. 28).

What have they done?
The Court has confused things important to marriage and which accompany it with the very purpose of the institution. They have reduced marriage to a collection of relational rights, financial resources, relationship validation, health club benefits, and social status. These things do accompany marriage; most are important for a successful marriage. But things that are essential to marriage are not the same thing as its purpose. By analogy, automobiles are useless without tires, engine, and gasoline but do not exist for the sake of having those things. Arguing they exist for the sake of tires, engine, and gasoline is an empty analysis: automobiles exist for the sake of their parts. Most of the items in the two above lists are given to married couples to help them have a successful marriage, not to define the purpose of the institution. But the Iowa Supreme Court has decided that things intended to help marriages succeed are the fundamental purpose of the institution. Marriage now becomes a morally vacuous institution. The purpose of the marriage becomes the things that accompany it.

Moreover, if the reasons listed above are the purposes of marriage then what rational basis is there for denying groups of people from marrying: say, four men and six women. If marriage exists for the purpose of defining relational rights, combining financial resources and individual energies, recognizing the parties’ committed relationship, comfort and happiness, status, and personal and public affirmation then it appears groups of people wanting “group marriage” are also similarly situated with respect to the purpose of the law.

This only illustrates that the reasons the Court gave for establishing the purpose of marriage are fundamentally perverse.

Question: What is the purpose of the marriage institution? Answer: To acquire the personal and public affirmation that accompanies marriage. Question: Why should same-sex couples be granted that affirmation? Answer: So they are not discriminated against; the law should apply equally to all.

The problem with the above line of reasoning is that if the purpose of the institution is to change one’s status to grant personal and public affirmation then the objective purpose of the law becomes obscured. After all, most people desire public affirmation and monetary advantages. Discrimination is reduced to not having privileges and no longer speaks to the objective purpose of marriage.

Conclusions
As the Iowa Supreme Court mentioned, “classification is the essence of all legislation” (p. 32).

So arguing that same-sex couples should be permitted to marry because denying them such a right is discriminatory is a phony argument. The purpose of law is to make such-like discriminations. I sometimes feel that people who use the “marriage equality” mantra are making a rather very weak argument: people like marriage; people like equality; so who would say no to “marriage equality”?

But if taken to task on this argument they must state how same-sex couples are similarly situated with respect to the purpose of the law. And if they argue as the Iowa Supreme Court did—that gays are similarly situated because of their desire for relational rights, financial resources, relationship validation, health club benefits, and social status—their argument isn’t a strong one. Marriage is reduced to the material considerations that accompany it.

Is the purpose of marriage to grand benefits? Or are the purposes of benefits to assist marriage? What then is the purpose of marriage? Those questions tend to be avoided.

Reducing marriage to material benefits accords a weak argument. Arguing marriage is a fundamental right is subjective, as a fundamental can’t be reduced further. Arguing that same-sex civil marriage should be permitted because of the public affirmation it brings to the couple is a rather touchy-feely argument which doesn’t address the fundamental question, “Why does marriage exist?”

Their position is not as strong as it often appears.

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)

Gay Marriage, Again

Related Posts: Gay Marriage ; More on gay marriage ; Gay Marriage: The Iowa Supreme Court

I am very pleased that Proposition 8 passed. But the debate is far from over. The far left will continue to criticize the Church and the Latter-day Saints. On Americablog John Aravosis accused the Mormon church of “promote[ing] legislative gay-bashing,” writing,

At some point the Mormon Church needs to learn that they're not the only people with the right to free speech. They have the right to bankroll bigotry and we have the right to publicly call them on it. And we finally are.

Because of the Churches involvement in getting Proposition 8 passed, and because most of Utah’s population is Mormon, and because the Mormon Church is based here, some have decided to unleash their fury on Utah. Aravosis was quoted by the Associated Press as saying, “We're going to destroy the Utah brand. It is a hate state,” “At a fundamental level, the Utah Mormons crossed the line on this one…They just took marriage away from 20,000 couples and made their children bastards…You don't do that and get away with it” (“Thousands protest LDS stance on same-sex marriage,” Salt Lake Tribune; “Utah faces boycott after Mormon work for Prop 8,” AP). One website even called for the Mormon Church to be stripped “of its status as a religious organization” so as to “stop taxpayer subsidies of intolerance.”

Those who voted for Proposition 8 come from all colors and creeds. And hating people whose only common characteristic is they voted for Prop. 8 doesn’t make a lot of sense. If Aravosis had said, “We're going to destroy the California brand. It is a hate state…At a fundamental level, a majority of the people of California crossed the line on this one,” his argument would lack persuasive force; he wouldn’t be able to rally the troupes. Hatred needs a focal point. Sadly, Utah, the Church, and the Mormons are convenient foci. Though opposition to gay marriage isn’t confined to Mormons—a majority of people in 30 states have passed laws defining marriage as a union between a man and a woman—the Mormon Church could very easily become the symbol of what is wrong with religion in America.

I suppose that some on the left were hoping for a different scenario, a smooth transition from the old to the new: Eventually, a majority of Americans would come around and support homosexual marriage, and eventually America’s churches would follow—the error in California is the courts got too far ahead of public opinion. But if America’s churches don't liberalize the tension will become intense. For the political left this might be the worst case scenario, but to some on the religious right it seems unavoidable.

I also believe that to some extent “soft support” for gay marriage comes from liberal attitudes about sex. If sex is merely a biological function with no deeper meaning there can be no logical opposition to homosexual conduct. If all there is to life are the three Fs—foraging, fighting, and reproducing—then sex is simply this thing that people do. Obviously, attitudes about sex are more liberal now then they were 30 years ago: when I was a kid the raciest images on TV were of Jeannie, Marianne, and Ginger. Attitudes about sex are still evolving and becoming ever more liberal: I remember Jay Lenno joking in an interview that President Clinton made it possible to say “oral sex” on TV. The internet has made pornography easily accessible and quite a lot of young men (and women) are being exposed to it at an early age. This will only further distort their attitudes about sex. Men will want their pornographic fantasy and women will feel pressured to live up to that image. As far as gay culture is concerned, there is an inextricably promiscuous element embedded in it. (See my previous post for examples.) Though I don’t believe such promiscuity extends to all gays, I can’t see any significant portion of the gay community condemning the promiscuous dimension of gay culture, or coming out in favor of abstinence before marriage, or in opposition to the presence of internet pornography. And to that extent social conservatives and gay marriage advocates support fundamentally different value sets. Maybe I’m going out on a limb here, but the way I see it, gays want marriage rights without the conservative sexual mores that historically have accompanied it. Consequently we cannot be allies, but rather, we must be political opponents.

In principle, I have no objections to civil unions. Homosexual couples should be afforded the opportunity to make a legal commitment providing many of the protections afforded by traditional marriage. Recently the Church stated,

The Church does not object to rights for same-sex couples regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the traditional family or the constitutional rights of churches. (Church Responds to Same-Sex Marriage Votes).

What civil unions do not provide is a solid legal footing that would allow others to foist their beliefs on religious organizations, denominational schools and universities, and charities owned and operated by churches. I also believe civil unions would have a less liberalizing influence on sexual mores than gay marriage would; the promiscuous element embedded in gay culture would de facto be denied legitimacy. If homosexuals would be satisfied with civil unions, I think we could get along. However, many liberals view civil unions as “baby marriage,” or “marriage light,” and the gay community would have to abandon their belief that gay marriage is about civil rights as well as the perception that opposition to gay marriage is a form of hate or ignorance. Because civil unions carry the danger that activist judges will erase the legal distinctions between marriage and civil unions, the gay community would have to advocate a legal footing that would guarantee religion in America remain free—such as supporting a constitutional amendment defining marriage as a union between a man and a woman. With such a foundation in place I would be willing to support civil unions.

Gay marriage proponents have invested and dedicated so much of their emotion to hating those who oppose gay marriage, and sustaining the belief that we are bigots, it seems unlikely they could adopt the position I have outlined above. This emotional intensity only increases the potential of a legal backlash should gay marriage become legal, and raises the stakes for the religious right. Gay marriage has unfortunately come to symbolize rejection of bigotry. And for some, and possibly many on the religious right, opposition to gay marriage is fueled by bigotry. Gay marriage advocates believe gay marriage is the way that such bigotry will be defeated so that it never rises again—Given the way homosexuals have been treated this is understandable. But it seems the dynamics of the gay marriage issue is evolving towards a wholesale acceptance of the moral values of the left, to the marginalization of the moral values of the religious right.

I believe that the religious right could be persuaded to accept civil unions so long as there is a constitutional guarantee that religious organizations remain free. That would require that the left abandon the belief that gay marriage is about civil rights, and a constitutional amendment defining marriage as a union between a man and a woman.

That is a long shot, and it would require compromise from both sides. Unfortunately, I don’t see that happening.

Heck, it might be the 60s all over again.
(I hope the hippies don’t come back.)


Related Articles
Dallin H. Oaks, “Same-Gender Attraction,” Ensign, Oct 1995.

Interview of Dallin H. Oaks about same gender attraction.

Jeffrey R. Holland, “Helping Those Who Struggle with Same-Gender Attraction,” Ensign, Oct 2007

Thomas Sowell,“Affirmative Action and Gay ‘Marriage’” and “The right to win.”

Joel Campbell “Activists' tactics counterproductive.”

John Elsegood, “The battle to protect marriage.”

Gay Marriage

Related Posts: Gay Marriage Again ; More on gay marriage ; Gay Marriage: The Iowa Supreme Court

The Church of Jesus Christ of Latter-day Saints recently released this press statement.

At the request of the Protect Marriage Coalition, The Church of Jesus Christ of Latter-day Saints is making arrangements for them to call friends, family and fellow citizens in California to urge support of the effort to defend traditional marriage. The coalition has asked members of the many participating churches and organizations to contribute in whatever way they can to the effort to pass Proposition 8, including by phoning. (Church Readies Members on Proposition 8, 8 October, 2008)

See also Gordon B. Hinckley, “Why We Do Some of the Things We Do,” Ensign, Nov 1999 and California and Same-Sex Marriage from LDS Newsroom; “Californication” by Jeremy Gayed.

With the upcoming vote in California on Proposition 8 I thought I would weigh in on the gay marriage debate. Because I’m not gay I’ll never be able to understand fully the homosexual perspective on this issue. As a devout Mormon my belief is strongly influenced by my religion. It’s a truism that each person is a captive of his culture, whatever that culture might be, so it should be no surprise that I’m conservative in politics and religion. What can I say? I’m not open to having my mind changed on this issue. So I can only tell it as I see it.

The issue of gay marriage touches many issues: the meaning and purpose of marriage, issues of sexual morality, religious freedom, and fundamentally it is a debate about what is civil rights. There’s a lot at stake for both sides, neither of which are willing to back down. Those who are liberal on this issue see gay marriage as an important step toward creating an all inclusive body politic. Those who are conservative see it as a shift down the slippery slope of degenerate morality, and a distortion of the institution of marriage.

In my judgment the pro side of the issue is making the more effective argument. So, except for making the point about likely interference with religious freedoms, the cons rely principally on those who already have conservative attitudes about sex and marriage. I can only put together my own understanding of this issue and hope it has some kind of persuasive force.

So I’ll begin.

I found a website that listed several reasons for supporting gay marriage. Some of the reasons listed are bereavement leave, insurance breaks, automatic inheritance, child custody, reduced rate memberships, joint adoption and foster care, and divorce protections, etc. But in the final opinion of the author,

…the single best reason to legalize same-sex marriage is not because it's benign, or because it is inevitable, or because it is what our legal history demands of us, or because it is more conducive to family life. It is because legalizing same-sex marriage is the kind thing to do. (“Four Reasons to Support Gay Marriage and Oppose the Federal Marriage Amendment,” Tom Head)

Another variation on that theme is that same sex relationships ought to be legally recognized because it’s the right thing to do. After all, heterosexual relationships are legally recognized, so why not homosexual ones too? From the perspective of the left it is about equality before the law. Consequently they see it as a civil rights issue. But I’ve noticed that the pros have only recently come out positively and publicly that gay marriage is fundamentally about civil rights. And judging from the reaction of the left toward those who are opposed to gay marriage I would have to conclude that they definitely see it that way. After all, if it isn’t about civil rights, opposing gay marriage wouldn’t be so bad. But here is where the rub comes in. If it is a civil rights issue then they have to go all the way with it. Acceptability of gay marriage would have to permeate every level of society. Not necessarily down to small unimportant groups, but generally. After all, no self respecting civil rights advocate goes halfway with civil rights. Consequently, I don’t see how gay marriage advocates wouldn’t feel compelled to marginalize those who preach that homosexual sex is a sin, at least to the point of them becoming a tolerable minority. In any political or religious movement there is no such thing as intellectual equilibrium; there is always movement in some direction or other. Intellectually, where else is there to go? Religion plays such a powerful role in American culture and politics, that if the churches don’t liberalize on this issue their influence poses an existential threat to gay marriage. If churches do liberalize, fine. If not, then other pressures are available. The government waged a thirty year campaign to force Mormons to abandon polygamy. This included the state of Idaho making it illegal for believers in polygamy to vote (upheld by the United States Supreme Court, see Idaho Test Oath), eliminating female suffrage in Utah, disincorporation the Church of Jesus Christ of Latter-day Saints, putting restrictions on how much property the church could own, and arresting its leaders. (Morrill Anti-Bigamy Act, Edmunds Act, Edmunds-Tucker Act.) More was under preparation. Faced with an existential threat the church had to abandon polygamy. But what was it about American culture that made this possible? It's simple. Polygamy was repugnant to Americans. One of the reasons given in Reynolds vs. the United States for supporting anti-bigamy laws is, “Polygamy has always been odious among the northern and western nations of Europe…polygamy has been treated as an offense against society.” Many people are treating opposition to gay marriage as an offense to society, and view it as odious. Reynolds established a basis for the legal persecution of religious belief.

I listed above some of the issues coupled to the debate about same sex marriage: insurance breaks, automatic inheritance, etc. But how do they relate to marriage? A great many privileges have been attached to the institution of marriage, so much so that it seems marriage is merely a collection of privileges beneficent to heterosexual couples. But marriage is not subsumed by its privileges. They are peripheral to it. From a religious point of view marriage is principally about providing a stable situation in which to raise children. And homosexual couples, having no procreative potential, are naturally apart from this purpose. Therefore gay marriage itself is not about procreation. By extending marriage to homosexual couples the emphasis of marriage is placed on its peripheral benefits, changing the public's perception of marriage. Also, since gay marriage is generally seen by its advocates as a civil rights issue, it in effect legitimizes homosexual relationships. But from a religious view marriage is not about relationship validation—making it so has an Orwellian creepiness to it. Nor does marriage exist to acquire bereavement leave, insurance breaks, or inheritance rights. Using marriage to acquire these privileges is a distortion of the purpose of marriage because it places the peripheral privileges prior to the purpose of the institution. The privileges are there to assist the purpose, not to precede it. By saying gay marriage should be legalized for reasons that are not fundamental to marriage, the very purpose of marriage is distorted.

A typical counter argument is many heterosexual couples cannot have children, so why should homosexual couples be treated differently from them? But again, this goes back to the purpose of marriage. In order to affirm that the purpose of marriage is principally about procreation, all that is needed is to define marriage as a union between a man and a woman, and the implication is implicit. By extending marriage to homosexual couples the implication is lost.

Gay marriage advocates also argue that all the virtues found in heterosexual relationships are also found in homosexual ones. And on that ground equal treatment should be extended to homosexual relationships. But to what extent are homosexual relationships similar to heterosexual ones?

Marriage is an institution well suited to heterosexual relationships. Most happily married men would probably agree that marriage has had a civilizing effect on them—most of my male friends are married and they would probably agree with that. The principle cause of the stabilizing effect is simple. Marriage exists as a way for a man and women to commit to each other; traditionally a marriage had no legal force until it was consummated; and consummation implies procreation. Let’s face it, men are turned on visually and easily; women aren't like that. To put it crudely, if a guy really likes a girl and wants her “favors,” generally speaking, she won’t until he has committed himself to her. So in its very nature heterosexual sexuality has a committing influence on men, and thus a stabilizing effect in heterosexual relationships. Marriage is a way for a man to commit himself legally. Given that the man has invested himself emotionally he feels responsible for his wife and kids. The difficulty for homosexual relationships is that it doesn’t work this way. There is no divergent sexuality. This is especially true for homosexual men, who’s sex drive is just as strong as any man’s. (I can’t speak for the female sex drive.) Homosexual emotional and sexual longings are just as real as heterosexual ones. Men are turned on visually and easily—that’s how we are. But in this case no one is left with a baby if the other partner leaves, and there is no difference in sex drive promoting a prior commitment. Homosexual feelings lack the stabilizing effect that arises from the divergent male-female sexuality. One might argue that marriage would provide a kind of stabilizing effect for homosexuals. But I am unconvinced. If homosexual orientation is driven by nature, and I’m convinced that for many it is, marriage won’t change that. Marriage wont change same sex sexual dynamics. So the natural instability of homosexual relationships remains.

Another issue at stake, again from the religious point of view, is that of sexual morality. Chastity is a religious concept. One thing that devoutly religious people, like myself, want to see preserved in this world is some kind of concept of chastity and fidelity: That men and women should abstain from sex before marriage and remain faithful to each other after marriage. But how would same sex marriage change that? Firstly, it does legitimize same sex relationships, which in itself is a mixed bag. Many homosexuals go through what is sometimes called a gay adolescence, what amounts to parties and promiscuity. David Starkey—host of the very excellent Monarchy series—described his gay adolescence as occurring in his thirties and forties. He was wildly promiscuous, commenting that “I had many memorable moments on Hampstead Heath [a park in London]. They were like scenes from a Midsummer Night's Dream…Do I regret it? No. Am I pleased I went out and did it? Yes.” (“The history man,” The Independent.) His partner, however, never did enjoy the gay scene; some gays detest the wildly flamboyant element of gay culture, others not. My own impression is that at some point most homosexuals go through the “adolescence,” and are heavily involved in its promiscuous dimension. And it seems this element is inextricable. I can’t see any significant cross section of the gay community coming out in favor of abstinence before marriage. If some did, they would loose support from those who don’t distinguish between celebration of sexuality and celebration of sex. So, for political reasons that is unlikely to happen. And from a practical point of view many homosexuals are unable to live a life of abstinence anyway. The LDS church teaches that there must be complete abstinence before marriage—I can only imagine how difficult it must be for devout LDS gays trying to live a chaste life with gay culture working against them. Those on the religious right see gay marriage as providing a degree of legitimacy to the promiscuous element embedded in gay culture. We see it as a further slide down the slippery slope. Religious conservatives believe healthy marriages are promoted when society has an expectation of abstinence before marriage and complete fidelity after. By legitimizing the “gay adolescence” gay marriage would effectuate a rejection of that expectation, an expectation that many have already rejected. Whether as a phase of life or as a lifestyle choice, promiscuity would be further legitimized. Those on the right believe that sex should not be seen as merely this thing that people do, or as a form of experimentation; promiscuity should not be seen as a right of passage or as a phase of teenage life. And many parents resent the popular culture that encourages this attitude for their children.

Gay marriage advocates have confused tolerance and approval: There can be no tolerance of gays without gay marriage, and in that light opposition to gay marriage becomes synonymous with intolerance; gay marriage provides a chance for loving gay couples to marry, anyone who objects must be a bigot, or simply ignorant. But that is not how I see it. There is a basic tension between freedom and equality: total freedom tends to promote inequality, and forcing equality restricts freedom. Wherever the balance lies, the marriage institution should be left out of the fray. Marriage should not be used as a way to promote diversity. That is not why it exists. Nor does it exist merely to provide an opportunity for loving couples to make a commitment to each other. Nor does it exist for people to claim its peripheral benefits. The necessary purpose of marriage is to promote stable environments for the procreation of children. And abusing the institution of marriage by saying it is about other things works against that purpose.

Protect marriage.

Support Proposition 8.

See also, In pictures: Sydney gay pride from BBC.

Sydney Gay & Lesbian Mardi Gras Parade 2005