Rod Dreher, I think, has a it right. Conservatives ought to support same-sex marriage legislation. I have been ambivalent about the Church’s involvement in Prop 8. My own position is very much like Russell Arben Fox’s. I think that there is a creditable case to be made that the equation of same-sex marriage with traditional marriage, by denying that sex differentiation is a necessary element of marriage, tends to reduce marriage down to affection and consent.
The problem with the affectionate, contractual view of marriage is that it reduces the ability of marriage to serve as a public institution that models the long term complentarity of men and women. More importantly, to deny that gender matters to marriage means that it becomes much less important as a mechanism for defining and socially enforcing the obligations that men owe to women and mothers. I suspect that this is why, for example, blacks favored Prop 8 more than any other ethnic group, and why black women favored Prop 8 at higher levels than blacks as a whole. Some — but by no means all — portions of the black community suffer from the breakdown of male responsibility, and black churches have been pushing marriage as a solution, a model of how men ought to relate to women. By stripping out gender, the institution becomes mainly about romantic love and consent, and it loses some of its ability to perform other important ideological work.
On the other hand, I don’t think that gay marriage is the biggest threat to traditional marriage by a long shot, and because I think that homosexuality is biologically determined I don’t believe that gay couples will ever be a significant portion of the population. Indeed, if gay marriage becomes widely available — as I think that it eventually will — then I suspect that as a matter of social meaning it will be differentiated. There will be “marriage” and “gay marriage,” which will be understood as similar but not entirely identical social institutions. At least, I hope that this is what happens. The notion that marriage is an institution that models how men and women relate to one another AS men and women will continue, but it weakened form.
Unlike Russell, however, I have no warm fuzzies about the referendum process. Indeed, I think that referendums tend to over simplify issues and reduce the give and take compromise that makes for stable social settlements in a democracy. The polarization around Prop 8 is a good case in point. The more man hours Mormons spend knocking on doors and distributing signs, the less likely they are to be willing to work for some long-term settlement less than total victory. The more time gay-rights activists spend demonstrating against hate by vandalizing Mormon temples and shouting epithet at temple workers, the less likely they are going to be able to see past their fury, understand the concerns of those with whom they disagree as anything other than bigotry, and work out a modus vivendi. Rather, the push will be — as it has been in Massachusetts, Connecticut, and California — to constitutionalize the issue. Should the political momentum continue as it has, this push will ultimately reach federal law as well, and an Obama presidency will be pushing the federal courts to the left.
In the long term, I suspect that social conservatives have lost the culture on this one. Friends, Will & Grace, and all the rest have given the young in particular a model of marriage in which arguments that see it as anything other than affection and self-imposed obligation become largely meaningless, if not barbaric and intolerant. The danger is that the political momentum created by this cultural force will result in the constitutionalization of the issue. Why does that matter? Because once gay marriage is enshrined in constitutional law, religious freedom and free speech no longer act as trumps. Rather, they become competing constitutional concerns that must be weighed against the constitutional values enshrined in rights to gay marriage. In other words, a constitutional resolution of the issue leaves religious institutions and social conservatives in a much more vulnerable position. As it happens, I think that compared to other advanced democracies, American constitutional law has a laudably libertarian (or at least relatively libertarian) record on free speech and, to a lesser extent, freedom of religion. These are important constitutional values, and I doubt that they would be swept aside by the constitutionalization of same-sex marriage. They would, however, I think be weakened over the long term.
If gay marriage is going to come, let it come via legislation. The result would be healthier as a matter of political and social culture and as a matter of constitutional law. Legislation, produced as it is in the rough and tumble of partisan horse trading is unlikely to partake of the kind of total victory and total defeat represented by a court victory or a constitutional ban via referendum. This is actually a good thing. While both sides end up feeling frustrated by the process, neither side feels the overwhelming sting of defeat. Likewise, a legislative resolution does not enshrine the result in constitutional law, where it sits about as a possible counterweight to free speech or free exercise rights. As it happens, I think it unlikely that anyone would push for laws requiring churches to officiate over gay weddings. On the other hand, we do have actual, concrete calls for taxing the property of churches that purvey “hate.” Best not to enshrine such attitudes in constitutional law. Indeed, in 2006 when the First Presidency urged members to contact their Congressmen regarding a constitutional definition of marriage then being proposed in the House of Representatives, I wrote a memo that I circulated to folks that I knew from my time as a Senate staffer in which I attacked the proposed amendment and argued for the complete deconsititutionalization of the same-sex marriage debate.
The problem with such a move is that it would require that gay rights groups give up on the quick, relatively cheap expedient of victory through the courts. It would also require that they give up on the sense of total validation that comes from an authoritative declaration that one’s opponents are outside of the realm of acceptable democracy. For traditional marriage activists, it would require giving up the joy enshrining traditional marriage in referendum-passed constitutional provisions that find themselves at war with demographically driven shifts of in social attitudes, at least in some jurisdictions. Indeed, if one believes — as I do — that there is something important about maintaining marriage as an institution for creating and enforcing social norms about gendered relationships and responsibilities, a muddled legislative compromise is much to be preferred to the widespread adoption into constitutional doctrine of the position taken by the Goodrich court in Massachusetts, namely that the gendered element of marriage was so irrational as to be wholly illegitimate.
In this sense, as a social conservative, I actually find the moves in the New York State Assembly toward the creation of gay marriage via statute oddly encouraging. It would be nice if California found a way of deconstitutionalizing the debate and if the California Assembly took responsibility for the the issue. Unfortunately, I suspect that the dysfunctionalities of California’s politics, and the Manichean outlook created by In re Marriage Cases and Prop 8 make any such settlement unlikely.
A few questions:
1) What would be the result, specifically, of the worst case scenario. That is, if gay marriage were to become a national constituional question and the institution of gay marriage were to be formally legally “accepted” in the U.S. constitution–what do you think would result?
2) I think I see your point about reducing the stakes, so to speak, by keeping this a legislative, rather than constitutional, question. But in the case of California and In re Marriage Cases, didn’t the California court make such a tactic impossible? I was under the impression that they left the people of California who oppose legal sanction of gay “marriage” few options but the constitutional one.
3) Reading the California Supreme Court’s decision, I was struck by their explanation that the legal question in In re Marriage Cases had little or nothing to do with substantive “rights” as we usually think of them (ie: rights to visitation and the like, in view of CA’s same-sex union laws, were not threatened) and instead focused, basically, on the definition of the word “marriage.” That is, the only thing the California court was really considering was whether a same sex couple can call their union a “marriage.” Did I misunderstand? If I understood correctly–why did what seems like such a highly technical–almost esoteric–question raise such furor and hatred?
I think your argument is fundamentally flawed as it presumes that same-sex marriage is inevitable. I would strongly disagree with this. The US Supreme Court has repeatedly refused to hear cases related to same-sex marriage as early as 1971 as as recently as in the last few years. Their refusal has always been on the same grounds: they don’t see it as a federal issue. If the courts are maintaining this stance over the course of decades, it would appear highly unlikely that they would change.
So what of federal legislation? Given the large number of citizens that support the traditional definition of marriage (even in liberal California), attempting to overturn DOMA would be political suicide for the Democrats. (A Constitutional amendment is right out.) There’s 44 states that have passed voter-approved laws and constitutional amendments defining marriage as one man, one woman. It doesn’t take a math major to figure out that going against their wishes spells political doom and irrelevancy as well as a near-immediate overturn.
Heretic! Pull his Temple Recommend! BURN HIM!
tyler: I don’t know what would happen if a right to gay marriage were enshrined in the federal constitution, most likely as part of the due process clause of the 14th amendment or the equal protection clause. It is precisely this fact, however, that leads me to believe that it is a scenario that you want to avoid.
I do think that In re Marriage Cases inevitably constitutionalized the issue. Prop. 8 continued the constitutionalization by simply constitutionalizing the status quo ante. In part this was because this was what there was the political support to do, and in part I suspect that it was that it was very difficult to figure out how one could return to the status quo ante without constitutionalizing the previous position of the law in the face of the court’s decision in In re Marriage Cases. It was, I think, a poor bit of judicial statesmanship for precisely this reason.
I agree that the actual legal stakes in Prop 8 are quite low. I think that the issue, on both sides, is primarily about the symbolic public meaning of marriage. For what it is worth, I am generally opposed to using the law as a way of establishing such meanings. My preference is for law to do what it does best, namely resolve concrete disputes about concrete legal rights. It is a poor vehicle for broader symbolic debates IMHO.
Jesse: I don’t think that SSM is inevitable everywhere. I do think that it is inevitable in many places. I think it is best to think about how best to manage that fact rather than engage in Quixotic attempts to stop it from happening.
“Heretic! Pull his Temple Recommend! BURN HIM!”
Whatever. That is not the church that I live in…
Nate, this line of reasoning is what basically led a number of European countries to accept SSM. Even Christian parties voted pro, not only weary of a long fight they would ultimately lose, but considering the matter too trivial to put energy and money in it. In Belgium, the Catholic hierarchy just voiced a pro-forma concern, hardly noticed, and let the matter rest. For five years now, SSM has been part of the societal construct and nobody notices it’s there. Interesting to mention, though no clear relation to SSM: these past few years marriages are up among heteros and more children are born to native Belgians. All the preceding just for information.
Nate: The legal stakes are simply too high to roll over on this one. The entire goal of same-sex marriage advocates is and always has been to force societal recognition of same-sex relationships as healthy and normal using the force of law. Marriage is just the tool that they think is most effective. Before long, they’ll start using that power to strip churches of tax-exempt status with hate speech laws, mandate equal teaching time in sex ed classes despite being a very small minority and who knows what else. Call it fear-mongering if you must, but their zeal to force us to their point of view will not be satisfied until they have achieved total victory. Marriage is the outer walls of the Alamo. Call it impossible to defend, but the cost is too high if we do not.
Nate – I’m kidding. But you realize … you *do* actually live within that Church, even if it hasn’t moved into your neighborhood.
I read Professor Oman’s post as a lament that the issue has been constitutionalized, than as an an actual argument for a viable strategy to stave off the eventual constitutionalization of the same sex marriage issue. Professor Oman seems to coyly suggest this himself, when he points out that his legislative approach would require gay marriage supporters to “give up on the sense of total validation” that comes along with having a right enshrined constitutionally; and that opponents to gay marriage would have to give up the constitutional fight. Neither is likely, and I think he knows that.
And I suspect that even if same sex marriage were protected by federal legislation, the legislative fix would only delay the constitutionalization of the issue rather than prevent it, as Professor Oman hopes. I can almost hear the legislation being cited in a future Supreme Court case as evidence of an “emerging national consensus…”
Moreover, instead of preventing it, I fear that federal legislation protecting same sex marriage would muddy the waters even further by bringing federalism questions to the fore. If you think people are annoyed at the California Supreme Court overturning a previous initiative defining marriage as between a man and a woman, how do you think they’ll react when the federal government tries to undo the constitutional referendums that have taken place in the vast majority of the states?
Nonetheless, I share Professor Oman’s discomfort over the constitutionalization of the issue – and in particular, the use of the state constitutional referendum for tactical purposes. I think that so long as opponents of same sex marriage are distracted with tactics like referendums, they’ll lose (or perhaps have already lost, if Professor Oman is correct about what henceforth I shall call the “Friends Syndrome” of marriage…) the long-term battle that must be waged against the normalization of the idea that marriage is little more than “emotion and consent”
I think it would be a good discussion for the resident lawyers and philosphers to discuss the issues raised in #7 (as I’ve pondered about that myself, both publicly and privately).
Wilfried: The one difference between the American situation and the Belgian situation in particular or Europe more particularlly, is that American churches — including ours! — enjoy much stronger free speech and free exercise protections under American constitutional law when compared to the protections provided by continental constitutions. For example, the kind of anti-cult nonsense with which the Church must deal in Europe would be bounced out of an American court fairly quickly on constitutional grounds. Hence, there is more for American Mormons to lose should same sex marriage become constitutionalized. (Although I don’t want to be too alarmist on this. Over time, I think that SSM in the constitution would erode free speech and free exercise rights, but I think that these are pretty robust rights right now and we are unlikely to see them compromised in the short term.)
Jesse: If you are right, then it seems to me that you want to have the strongest possible protections for free speech and free exercise of religion. Making same sex marriage into a constitutional issue raises the stakes considerably, because if you lose as a social conservative then your constitutional protections have been potentially weakened. Hence, if you think it is pretty clear that you are going to lose in at least some areas, you are much better off losing in a way that leaves your free speech and free exercise rights uncompromised.
True, Nate (11). But there is also another consideration when one compares countries: our Church’s standpoint on SSM raises the risk of even more anti-cult reactions against us here. When SSM was an issue here five years ago, the Church did not speak up to defend traditional marriage. Wisely?
Nate: That sounds good so long as the opposing side is into compromises. Which it is not. To them, compromises are simply smaller steps towards their eventual goal. They’re dealing in bad faith and they know it, so I see compromise as nothing more than a drawn-out surrender.
Jesse: One man’s surrender is another man’s defensible perimeter. Time will tell who is right.
I disagree with Note on a couple of issues. First, homosexuality is not biological. Or better stated, it is not strictly biological. It is, rather, a very complex interaction of nature and enviornment that, at this point, I don’t think we are even close to understanding.
That being said, I disagree w/ the enshrinement of same sex marriage on public policy grounds. Same sex marriage is simply not good public policy. It results in an expenditure of resources with absolutley no measurable benefit to the state. That being said, states institute poor public policy all the time.
Okay, I am off to Richmond to teach my class up there. I hope that those who comment on this post will continue to play nicely with one another.
If Jesse is correct about the long-term aims of the gay rights movement, then de-constitutionalizing the issue of gay marriage as per Nate’s suggestion would (generally speaking) actually deprive the enemies of the Church of their preferred–and most potent–weapon: the courts.
Same sex marriage is simply not good public policy. It results in an expenditure of resources with absolutley no measurable benefit to the state.
I must have missed it, but this is the first time I’ve heard the argument that SSM is an increased expenditure of resources. Care to explain?
Nate said: “Indeed, if gay marriage becomes widely available — as I think that it eventually will — then I suspect that as a matter of social meaning it will be differentiated. There will be ‘marriage’ and ‘gay marriage,’ which will be understood as similar but not entirely identical social institutions.”
I find this a bit too simplistic. Gays (at least in California) have “separate but equal” right now, even after the passage of Prop 8. Marriage is between a man and woman; civil unions are anything else. Both are treated the same under California law.
Gays don’t want separate but equal; they want the same. They don’t want the same rights (equal); they want societal endorsement of their unions as normal. They don’t want their unions to be seen as abnormal by anyone, and co-opting the term “marriage” is an important benchmark in that agenda.
JimD: That’s only true if 1) there are no legal challenges to overturn legislation and 2) constitutional definitions are in our favor. I’m not optimistic on either count.
An interesting and thoughtful post, Nate. Thanks.
Lance, I wish you would explain the above-mentioned “complex interaction of nature and environment.” I don’t know what you’re talking about. I’m not crazy about same sex marriage, but it seems to me you’re a little too dismissive of biology here. Do you know of evidence that demonstrates any post-natal cause of homosexuality?
You got a little something on your nose, there.
I agree with the idea that initiatives are generally inappropriate. In my case I only really want to see them used to overturn unpopular legislation or to change spending priorities in a general sense.
Even so, I have the sense that because society in America is coming up with two distinct definitions of marriage, and because the two sides have refused to compromise sufficiently to solve the matter through a deliberative body, that the democratic vote was inevitable, especially in light of American Conservatism’s distaste for common law rulings these last 35-40 years.
Because there are two definitions for marriage today (at least two), it stands to reason, logically, that there could be an institution devoted to each kind of relationship in any State legal apparatus. Practically, this won’t fly, because of America’s historical persecution of minority races and the popular equivocation favored by LBGT activists, which they suppose, almost correctly, garners sympathy and allegiance to their cause. The federal government and the State governments therefore have to seek a common legal framework for both gay unions and non-gay marriages.
The legal history behind state-regulated marriage in the U.S. comes into play, then: Federal courts either have to abide by the precedents set by the Supreme Court when it stamped out polygamy over 100 years ago, or it has to rewrite common law conclusions and declare that the U.S. is not a Christian nation, and would have to modify its conclusions about how much interest it has in regulating marriage. This would have the practical effect of overturning “U.S. vs. Mormon Church” and could, unless carefully worded otherwise, either reopen the question of polygamy or at the very least, hand the Church the victory it sought all those decades ago, by conceding its points about state interference in a religious institution like marriage.
In short, this is all headed on a trajectory in which the Church wins an argument it put forth in the 1860’s and later, and the LBGT crowd is championing it.
(I don’t think this re-institutes polygamy among mainstream Mormons; conditions on the ground today don’t resemble those which would authorize the practice, according to my reading of the Book of Mormon.)
The way out at the federal level, in my opinion, is not to institute legislative gay marriage or to concede to a court’s fiat about a new or non-traditional definition of marriage, but rather to legislate benefit structures with regard to households, instead of marriages. Thus, instead of filing your taxes “married, jointly”, you file, “household, jointly with dependents”, and open the benefit structure to any household with a valid marriage or civil partnership status in any State. That way, the feds escape having to define *anything*, the issue of licensing or not licensing remains with the States, everyone gets equal federal rights concerning household benefits, and maybe the picketing and church-vandalism can stop right alongside the perceptions of persecution and fear felt by gays and lesbians. Maybe, just once, everyone wins except for stiff-necked and intractable ideologues, of which I think there aren’t very many.
JimD: That’s only true if 1) there are no legal challenges to overturn legislation and 2) constitutional definitions are in our favor. I’m not optimistic on either count.
Who would be posing legal challenges to conservative-backed SSM legislation?
Same intellectual bullcorn. Greenspan didn’t think that tinkering with interest rates was a problem, Barney Frank and friends didn’t think that tinkering with credit standards was a problem. Marx didn’t think messing with property rights was a problem. The smartest people of all no better than to tinker with long established cultural patterns. It usually drives the system to chaos.
Joseph Smith’s experiment with plural marriage has made those of us who are willing to dig deep understand what can go wrong. If you will it was God’s revelation to us on what a hornet;s next we could open. It is no coincidence that our leaders have gone back the other direction on this.
I think you could easily sell that solution to every mainstream gay advocacy group. But do you really think the Christian Right and conservative LDS would ever agree? Ultimately they would prefer gay couples not exist at all, don’t they?
My sense is that the gay community is quite pragmatic in some places. They certainly reached a good solution in the U.K., for example. Sadly, in the U.S. the rhetoric has been ratcheted up to the point where nobody seems interested in compromise. If the passage of Prop 8 ultimately succeeds in nullifying 18,000 already-established marriages, the symbolic import alone ensures no end to this battle. Even I’m furious about that, and I’m hardly a hot-head as you may have noticed.
Mike: Given the success of gay couples in steadily expanding their real legal rights under California law, the actions of the San Francisco city council and the decision to push the issue to the California Supreme Court was not a pragmatic move. It created precisely the situation in which we find ourselves. As for Brtiain and other European jurisdictions, their solution was actually remarkably similar to the situation in California prior to In re Marriage Cases. For example, my understanding is that there aren’t gay marriages under either UK or German law but rather some version of civil unions. I would note that the Church was not going to the barricades to ban civil unions, and indeed it accepted civil unions as a compromise solution in Hawaii. I seriously doubt that there would have been strong opposition to amending the Califorinia civil union statute to give gay couples the handful of legal rights that they lacked under the civil unions statute. Such a process, however, would have deprived Newsome et al of a moment of gradiose public victory. While I think that there are many conservatives who would oppose even civil unions, I think that there are a lot like me who are in favor of accomodating and even encouraging gay couples but believe that given the battering the institution of marriage has taken in recent generations, a big public insistance that gender was irrelevent to marriage a la Goodrich or In re Marriage Cases was worth opposing. I hope that the train wreck in California convinces all sides that a negotiated modus viviendi is to be preferred to a Manichean struggle to the death. I suspect instead it will encourage gay rights proponents to demonize their opponents, and will cconfirm Prop 8 supporters in their belief that pro-SSM forces are bent on silencing those who disagree with them.
“It would be nice if California found a way of deconstitutionalizing the debate and if the California Assembly took responsibility for the the issue.”
Nate, I believe the California legislature twice passed bills adopting same sex marriage, and both times the bills will vetoed by Arnold. http://www.signonsandiego.com/news/state/20071012-1903-ca-gaymarriage.html
Proposition 8 makes that approach more difficult, because it prevents not just the courts but the legislature from extending marriage to anyone other than a man and a woman.
The only winners in the gay marriage legalization, will be family law attorneys. Hope they are gearing up. Most gay unions aren’t very long lived, and seem to be prolific! Wow…I’m heading to law school…family law…
I agree with you completely, Nate. The situation in CA is most unfortunate and I blame Gavin Newsom for stirring up a lot of trouble. However, there are culprits all around in CA. Prop 8 was proposed BEFORE the CA Supreme Court legalized SSM because conservatives could see where things were headed: approval by a liberal legislature and signature by a future governor (a la NY state). The anti-SSM side moved first to halt the legislative process by referendum.
Newsom threw gas on the fire which got the supreme court involved, which led to Prop 8 passing, which leads directly back to the same supreme court, which may lead to a Supreme court recall campaign (if they void Prop 8 over the amendment vs revision question)….on and on.
What a mess.
Thoughtful post. I tend to agree with the basic sentiment. I don’t think things would be nearly so heated right now if we were only talking about the bundle of rights associated with marriage (which can and probably should be conferred through civil unions) or even the symbolism of state-sanctioned “marriage” without sexual-orientation differentiation.
However, it seems to me that the homosexual-rights masterminds (the lawyers and academics and such who are thinking strategically about all of this as opposed to vandalizing churches and blackballing Mormon theatre directors) want exactly what you would hope to prevent through legislation: the state-by-state constitutionalization of their agenda. If that is the strategy (it seems like a reasonable guess based on Mass. and Cal.), then isn’t the only real answer for those who would defend traditional, heterosexual marriage a federal constitutional amendment defining marriage?
I can wholeheartedly join you in preferring legislation. But that won’t stop people from labeling both of us (and Mormons everywhere) as hateful bigots whose gendered understanding of marriage is unspeakably shameful (like racism!) in acceptable discourse.
Nate said, “seriously doubt that there would have been strong opposition to amending the Califorinia civil union statute to give gay couples the handful of legal rights that they lacked under the civil unions statute.”
Nate, I was understanding that in California there was/is absolutely no difference between the state legal rights in marriages vs civil unions…that the Family Code required that. The only difference was the terms “marriages” (for heterosexual unions) and “civil unions” (for same sex unions) Is that not accurate?
To questions raised surrounding the origin of Homosexuality.
Please note how the APA has evolved in attempting to answer this question. Bold assertions were made in the old brochure published back in 1998 — Answers to Your Questions about Sexual Orientation and Homosexuality
“There is considerable recent evidence to suggest that biology, including genetic or inborn hormonal factors, play a significant role in a person’s sexuality.”
But after ten years now of rigorous research trying to prove these assertions, they’ve back peddled considerably.
From the newly published 2008 brochure — “Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality.” “There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation”
re: #34 add on – I understand there are federal rights differences and don’t know if this is what you (Nate) were referencing.
The right to marry is a fundamental right protected by the due process clause of the 14th Amendment. The marriage-for-heterosexuals-only times are passing. The equal protection and due process clauses in our Constitution (that we Mormons revere as inspired) mandate that it is discriminatory to deny a couple the right to marry merely because the couple is not heterosexual.
I see this as our problem with the prop 8 opponents. They are talking about Rights. You cannot deny one group of Americans a Right that all other groups have. Proponents of 8 are talking about what marriage specifically means to them. The Rights argument will alway take precedence.
All of our concerns about what same-sex marriage will do to our society take the back seat. Our recourse and right is to carry on teaching and believing as we do about eternal marriage. Gays marrying each other takes none of our rights or beliefs or rituals away. However, in the marketplace of ideas, our truths will continue if they are the more appealing. To me this is what it comes down to: we are afraid that our ideas and beliefs are not powerful enough to hold our members.
Please provide me with any federal case law citations that support this proposition.
According to Findlaw: Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639 -40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383 -87 (1978).
Ludlow #37 and 39
Apologies. You are correct that the right to marriage is a fundamental right so protected. I copied and pasted the wrong part of your comment. This is the one for which I actually wanted citations. Are you suggesting the 14th Amendment supports same sex marriage– or that the definition of man/woman marriage is an impermissible constitutional distinction? I don’t believe Loving or any of the others you reference so hold.
No complex human social behavior is biologically determined. My dog (i.e. male canis familiaris) humping other dogs isn’t even biologically determined–the right social circumstances still have to be present. Absent other dogs he feels he needs to show who’s boss, he sticks to bitches (i.e. female canis familiaris). I wonder if the gay community has really thought through what it means to argue that they are automatons when it comes to something we all seem to think is such an important part of the human condition. It feels so much like the high school locker room version of human sexuality–as if the football jocks couldn’t just as easily swing the other way if they had a reason to. In fact, I had a mission companion who reported that at his high school one year, most of the guys did. But I think it only stuck for the ones who already liked wearing pink (you know, the biologically-determined color of choice for gay men).
Nate, I’m curious as to how you see polygamy and the Church’s seemingly justified fear of polygamy fitting into all this.
#40 Guy, I likewise have not found any cases that specifically state that the right to marry is extended to same-sex couples. Were that the case all of this with Prop 8 would not have happened and we Mormons could have saved ourselves $20 Million or so. I do believe that, as the California Supreme court found that the state Constitution’s protection of the fundamental right to marry as a right extended equally to same-sex couples, so the US Supreme Court will likewise decide.
crude and unneccessary
…not to mention, a strawman
How is it crude? Every second sentence here is about how someone chooses to have sex and we’re all acting like this is a normal thing.
So much dizzying intellectual chatter here.
One would almost think that we’ve forgotten our religious heritage in this country, and what’s at stake for religion.
I, for one, think it’s fairly clear that Satan is pushing an agenda.
“…we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.”
I’m not one to make a direct correlation that same-sex marriage will have an impact on heterosexual unions, per se, (though I do make that correlation), but I do think the agenda being driven ends—that is, if there is no righteous standard raised in opposition—in a fight over religious liberty.
THIS is the heart of the matter, in my view.
But in modern society, it’s very difficult to couch any such argument in religious terms because secularism has become the state religion, and any other religious argument is wildly (even threateningly) unpopular.
American Yak, who are you fighting and exactly over what/which religious liberties? No beliefs, rights, rituals, or customs of ours have been taken away by 2 guys or 2 gals having the right to marry. I’d appreciate you fleshing out your ideas of which religious liberties we would be fighting for.
Trend is not destiny, as Rene Dubos used to say.
A few issues need to be contested in every legitimate forum with every legitimate means, I think. Until my leaders abandon the field.
I was listening before ssm was adopted as a strategy by some people, and for some strategists ssm is not the goal. For them the goal is to destroy the ideal of monogamy and the idea that morality has any place in discourse about sexuality. Go read them for yourself. They aren’t hiding.
I think it matters not at all what you cede, you will find the battle still engaged until you choose.
And to think that homosexual attraction–or polymorphous perversity, for that matter–cannot be learned or that sexual desire doesn’t partake of the extraordinary plasticity of the human brain seems uninformed.
I just love how no one seems to think that attaching social approval to a behavior isn’t going to increase its frequency. It’s as if the entire discipline of sociology never even happened.
As if celibacy was never tried by a large group of priests, as if there were never an all-male navy, etc…
I do believe that, as the California Supreme court found that the state Constitution’s protection of the fundamental right to marry as a right extended equally to same-sex couples, so the US Supreme Court will likewise decide.
You could be right; but, I think a legitimate constitutional argument can be made that the U.S. Supreme Court already had an opportunity to extend same-sex marriage and opined that there was no substantial federal question presented in a Minnesota state court case appealed to the U.S. Supreme Court. See Baker v Nelson, and also here.
I do agree with Nate’s observations:
This is the greatest weakness of the CA supreme court’s ruling, pointed out by the dissent. There was no constitutional precedent for the CA supreme court’s ruling. The sweeping change they legislated from the bench should have been legislated–if at all–by the capital, not the bench. In CA, however, the people have now spoken twice on the issue. Even in NY where their supreme court rejected the constitutional challenge of their marriage definition, the majority justices opined that if the marriage definition is to change, it should be changed legislatively.
I also think the U.S. Supreme Court is much less likely to create a new fundamental right and a new suspect class than did the CA supreme court, which did so out of constitutional whole cloth as it were.
I think the US Supremes have continued to say that it is a State issue. It might get involved if California cannot sort out the inconsistancies now in saying that sexual orientation is a protected category and yet only heterosexuals have a Right to marry.
The make up of the US Supreme court may be different by the time such a case gets there.
Doesn’t the church draw a line only on behavior, not on identity? Is it not true that you can be homosexual and be a member of the church in perfectly good standing as long as you can properly answer the same questions in a bishop’s interview as everyone else? I’m not sure how this plays into discussions of what to do about same sex marriage, but until Prop. 8 came along, I was under the impression that the bretheren were way ahead of most members on a tough issue.
For what it’s worth, and for anyone interested, there have been good discussions of this topic hosted by Hugo Schwyzer, here, and an ongoing one hosted by Laura McKenna, here. Enjoy.
“complex interaction of nature and environment.” I don’t know what you’re talking about. I’m not crazy about same sex marriage, but it seems to me you’re a little too dismissive of biology here. Do you know of evidence that demonstrates any post-natal cause of homosexuality? — he is probably referring to twin studies. I would be much more comfortable if the correlation were higher, it would simplify so many things.
I suspect instead it will encourage gay rights proponents to demonize their opponents, and will confirm Prop 8 supporters in their belief that pro-SSM forces are bent on silencing those who disagree with them. Sigh. So far, so true.
Nate makes a good point on equality of legal rights. Regardless of what happens with Prop 8, we should be pushing forward to establish protections and rights.
Thus, instead of filing your taxes “married, jointly”, you file, “household, jointly with dependents”, and open the benefit structure to any household with a valid marriage or civil partnership status in any State. That way, the feds escape having to define *anything*, the issue of licensing or not licensing remains with the States, everyone gets equal federal rights concerning household benefits, which does not necessarily hit all the axis.
The issue, not clearly addressed, is that marriage has several axis of definition.
One is a matter of household legal rights. (tax returns and other rights).
The next is of pair-bonding (the “forsaking all others” definition).
Next is social validation beyond the validation offered by a church wedding (marriage vs. holy union).
Then the traditional state sanctioned method of transmitting inheritance and child rearing.
Finally, the religious basic sealing unit (which is rather LDS, since it by-passes the “till death do you part” portion of the definition), which may well be subsumed into something other in the hereafter.
What is interesting, is that each set of definitions has those who object to it. The traditional definition, where infertility was a justification for annulment (not mere divorce) is objected to by those who are intentionally childless. Modern cultures have all pretty much abandoned this definition (though, in South Africa, there were major issues, as women were expected to prove their fertility by getting pregnant before they were considered for marriage, a practice that is still prevalent in some circles).
The strenuous objections to the “forsaking all others” clause has been interesting in the current debate. Not to mention the sub-theme of non-sexual unions of people with their animal companions (“who needs a man, I have a dog”). That tends to get submerged in utterly icky discussions that turn towards b-stiality when the PETA crowd is talking companionship and equality of species.
Each axis has those who object to it, and those who are willing to let that particular axis slide. As a result, we have an institution whose definition has been growing ever more vague and that runs the risk of being so widely applicable that it has no meaning at all.
Which is why I’ve questioned if the same sex marriage debate is the right debate to be having. I think it is symptomatic of a recognition that the definition is coming apart, but not a recognition of what actually is being threatened and what is being strengthened. But then I want to see more people in unions having them celebrated in churches and better typography all around.
Nice essay Nate.
The referendum process may have it’s weaknesses, but in the case of Prop 8 I think it’s a huge plus to see judicial “legislation” slapped on the wrist.
Re statement 51 about the all male navy–
It was run on “Rum, Sodomy and the Lash” — Winston Churchill didn’t say it first, but is on record as wishing he had.
I see two things wherein I disagree with Nate. First, it isn’t an issue of “rights”. Marriage is an issue of society supporting organizations that ensure its survival and prosperity. Tradition over millennia has shown that traditional marriage is most effective at 1) creating the next generation, and 2) nurturing that generation until they are ready to take their place in society.
NO other familial organization has the ability to accomplish these two goals. Gays cannot reproduce the next generation by themselves. And studies continually show that children grow best when there is father and mother in the home raising them.
This isn’t an issue of equal rights, as in California a civil union shares all rights with traditional marriage, except one: the word “marriage.” Instead, it is an issue of co-opting the term in orders to force all people to accept their lifestyle as normal. There is no defined benefit to society, ONLY to the gay couples.
Scholar Harold Bloom suggested that the reason Sodom and Gomorrah were destroyed wasn’t because they were rife with homosexuality, but because of incivility. Only when the gays attempted to impose their own lifestyle on others (Lot’s visitors) did God decree its destruction. Perhaps we are seeing the same event approaching in our time?
I do not see any value to or for society by encouraging SSM. It does not give us a true reason to change the foundation of our society. Should we change something that has worked for centuries, and replace it or give equal stance to something of lesser quality?
While I think GM and Ford made some stupid choices in the last decade, I’d much prefer digging them out of their hole, than to let them die and be forced to buy Chinese cars. It isn’t equal or the same, no matter how much free traders try to convince us.
And so it is with SSM. It is a runt pig seeking to take home the Grand Prize ribbon.
LOL, did ol’ Professor Bloom really imply that the rapists of Sodom were gay activists? Link, please!
Tolerating SSM = Allowing General Motors to fail? I love how your mind works, Rameumptom.
“Tolerating SSM = Allowing General Motors to fail”
If this is true, then I am all in favor of tolerating SSM…
Nice post. I agree with most everything but am skeptical of your statement that court/constitution mandated SSM would erode first amendment rights in the “long run.” I think that in the long run, gay partnerships/unions/marriages/whatever-they-are-ultimately-called will be more or less accepted as normal, and most people will forget that the precise terms used or the precise legal rights involved were ever considered interesting questions.
The refusal of conservative churches to recognize these unions will be just one more of a long list of quirky religious restrictions (alongside women not having priesthood, divorce and marriage restrictions, dietary laws) that nobody bothers to argue about anymore.
It is only in the short run — when we’re still fighting political battles — that we will have political enemies who will seek to silence us by attacking us in legal ways (tax exemptions, zoning laws, etc.)
“While I think GM and Ford made some stupid choices in the last decade, I’d much prefer digging them out of their hole, than to let them die and be forced to buy Chinese cars.”
Did you mean Japanese cars? I’d hate to be forced to buy a Chinese car.
My line of thinking diverges from yours.
When you say “While I think GM and Ford made some stupid choices in the last decade,” I’m with you, but then you get to “I’d much prefer buying a digging them out of their hole, than to let them die and be forced to buy Chinese cars.”
You could dig them out of the hole by buying their cars. Of course, that’s why they’re in their hole. Their cost structure is so bloated and inefficient that they can’t sell a car at a profit, and, therefore, must price themselves out of the market if they were to hope to price at a profitable price.
I’d rather be FREE to buy a Chinese car, than FORCED to pay tax dollars to keep a couple of dinosaurs afloat until they have their next crisis.
As regards SSM and marriage, I agree with Nate that in a perfect world it would be best to leave it all up to legislation. Unfortunately, in our imperfect world where legislation is written from the judiciary branch, you either acquiesce to the tyranny of the judiciary, or you go nuclear constitutionally. Judiciary legislation leads, eventually, to some form of hot or cold war.
Reminds me of Bork’s statement about the Judicial Legislating in Dred Scott and the Civil War in the Temping of America. I’m paraphrasing, but I recall he said something to the effect of, “Any court decision that requires a war to fix was wrongly reasoned.”
The CA Judiciary, in my opinion, is responsible for this hot war. But once they ruled, you could either fight or die . . .
“The problem with the affectionate, contractual view of marriage is that it reduces the ability of marriage to serve as a public institution that models the long term complentarity of men and women. More importantly, to deny that gender matters to marriage means that it becomes much less important as a mechanism for defining and socially enforcing the obligations that men owe to women and mothers … By stripping out gender, the institution becomes mainly about romantic love and consent, and it loses some of its ability to perform other important ideological work.”
Nate, this is an excellent post. I am struck by how enormously difficult it has been for traditional marriage advocates — of both the LDS and non-LDS variety — to make this point coherently. You and Russell have been two of the few that seem able to talk to this issue sensibly and concisely.
@Stephen M (Ethesis)
It seems to me that State interest in marriage or any other household arrangement centers around taxation and inheritance rights. We’ve got Court rulings and constitutional amendments that are intended to keep the government out of the bedroom, the church sanctuary, and the public meeting hall; it seems to me that that forecloses any interest it would have in pair bonding or social validation. The only thing the State cares about, and should care about, is whether the children in a household are sane, educated and healthy, and the household is free of force and fraud upon the helpless there.
The rest is kind of fuzzy: It’s hard for me to find a way to write “we approve of your household” into social security benefits policy or the requirements to get an Instructor Pilot Certificate.
This is certainly a worthwhile discussion. My understanding is that California had passed, by referendum, a law that insisted that the term “marriage” only be applied to heterosexual marriage. The Assembly has passed legislation that gave homosexual couples virtually all of the same legal rights as attach to legal marriage. The ONLY “right” that homosexual couples do not have in California after Prop 8 is the right to use the courts to punish someone who does not accept their relationship as being a “marriage.” Is the right of a gay couple to force a person who, for religious reasons, does not accept “gay marriage”, and withholds voluntary participation in that “gay marriage”, more important than the right of the person to obey the dictates of his religion? We are not talking about deprivation of housing, jobs, medical care, or any essential service. Gay couples can get all of the public services they need from the part of society that places money before religious principle. The one thing they want now is not material, but it is power: power to compel people to act as if they endorse gay marriage as being equal to normative marriage. It would be awfully strange if I as a Mormon were to insist that my religious liberty and equality gives me the right to use the courts to compel Baptists to endorse specifically Mormon activities. For example, should Mormons be able to use the courts to compel the Catholic Church to open its privately owned membership records to the Family History Library? But that is precisely the kind of power that gays seek who want to establish gay marriage as a constitutional right that trumps freedom of association and freedom of religion.
A major activity of the Federal government, and in California of all state and local government entities, is the analysis of the potential environmental impacts of ANY major decision. Major projects involving billions of dollars for the benefit of the public (dams, streets, airports) can be halted by a lawsuit insisting that a full environmental impact analysis be done before any action is taken. These laws insist that preserving the status quo is a vital part of protecting the natural environment, and that changes which may be irreversible should not be undertaken without full weighing of the consequences.
I therefore find it highly ironic and greatly hypocritical when people of a politically liberal mindset insist that a major change in human society such as the unprecedented same sex marriage should be undertaken by judicial fiat, without the participation of the citizens affected, and without any prior deliberative analysis of the short and long term, cumulative impacts of such a change. The bias should be toward conserving social capital, with the burden of proof being on advocates of same sex marriage to demonstrate that it will have no adverse social consequences, either in the short or long term. All of the resultant events caused by such change need to be evaluated and publicly aired before the change is made.
What we are seeing with gay rights and gay marriage is the application of the absolutism of the abortion right applied to other sexually related acts. Under the Bill of Rights, religious practice (e.g. the Reynolds case) and free speech can be curtailed and regulated in light of competing public interests. But somehow the courts have decided that sexual license, whether for teens seeking sexual experience of any kind, or for an abortion, and now for homosexual activity, is beyond regulation if it is voluntary among the participants. Given the way the courts have gone, polygamy cannot rely on religious freedom as a basis, but can win in the courts if it simply argues sexual license. People who want to have several wives are not going to get a hearing based on the claim that they believe God commands such action, but the courts will honor their choices if they simply insist that it is a hedonistic choice for no other purpose than sexual satisfaction. The courts have come to the point of specifically favoring secular hedonism over religious behavior. placing vague notions of social progress above the express guarantees of constitutions. Along with the courts’ decision to disregard the democratic process of elections and legislative action, sexual acts are being given a special legal status more important than the right to vote and make law through democratic action. When the general public realizes that their most basic freedoms are being taken from them by the courts’ drive to elevate sexual hedonism above all other legal rights, there will be a profound realignment of the place of the courts in America, potentially destroying the respect that judicial decisions have earned over two centuries of honoring the law produced by democratic means. Americans have given far more power to their courts than other nations because the courts have largely honored the law made by the people. The authority of courts will have been destroyed by the unwillingness of courts to restrain themselves to interpretation of law and their impulse instead to tell the people what the law shall be despite the will of the people.
To the extent that homosexuals align themselves with judicial tyranny, they will find themselves anathematized not so much for their variant sexuality as for their aspiration to tyranny, the same kind of petty tyranny that characterized so much of the pro-slavery South before the Civil War, which used the courts to protect slavery and the power of slave holders.
Supporters of full civil equality for gays = Antebellum slave owners
Can I have my slave to drive me around in my Chinese car?
Nate, a few responses:
“I have been ambivalent about the Church’s involvement in Prop 8.”
I think many members of the church felt this same way, but my guess is its due largely to the fact that Mormons were suddenly forced into the awkward and unexpected position of defending the Church’s position, when we would have rather remained anonymous. This is especially true for those who consider themselves more sophisticated than the average Joe (Joe Sixpack, anyone?). It seems crass and overly simplistic to utter the simple words, “I am opposed to gay marriage.” Frankly, I think a good few members cracked under the pressure. Of course, one would rarely admit they actually cracked. The more clever way is to cover fear with a sophisticated counter argument to the Church’s position.
You said: “[B]ecause I think that homosexuality is biologically determined I don’t believe that gay couples will ever be a significant portion of the population.”
Followed up later by:
“There will be ‘marriage’ and ‘gay marriage,’ which will be understood as similar but not entirely identical social institutions. At least, I hope that this is what happens.”
This is puzzling to me on several levels. How is it you have concluded that homosexuality is biologically determined? Is it because gay people say so, or is there more to your conclusion? Someone earlier mentioned twin studies, so I’ll make a quick point regarding those. Several years ago, an Australian registry study focused on over 14,000 identical twins. They determined that if one twin boy was gay, there was a 38% chance his brother was also gay. For females the concordance rate was 30%. Other studies go higher, approaching 50%. What does this and similar twin studies prove? Well, like most studies, it proves what one wants it to prove. But I think it reasonable to say that if homosexuality were solely biologically determined, the concordance rate would be 100%, or very close thereto. This indicates there is an environmental component. At the same time, 30% to 50% is still fairly high, which suggests there is also a genetic component. The conclusion in my minds eye is that the door is not closed on this discussion. But you seem to want to close the door, as do gays, and just assume that homosexuality is biologically determined.
It reminds me of the story of a former lesbian who underwent reparative therapy treatment to overcome her homosexual urges. It was a long, difficult, and ongoing process. But the day came that the therapy began to take effect, and she began to feel better and more alive than she ever had before, and even noticed an increased capacity for attraction to the opposite sex. She wanted to share her story, so she sent a letter to the Ellen Degeneres Show, explaining her story and asking to come on and tell her story. After receiving no reply, she decided to post her letter on the show’s website chatroom. Shortly after she did, the letter was removed and she had been blocked from the site. She then got on a friend’s computer and reposted her letter. It was removed and her friend’s IP address was blocked. This happened one or two more times until the website’s chat feature was disabled.
Sure, I know, it sounds like fiction. So I have my own story. Last week, while following the Prop 8 news, I came across a website, a blog of sorts, though a prominent one, that decided to devote a substantial number of posts to those hate-filled bigoted Mormons and their devilish organization who spread all kinds of untruths to dupe the masses in Cali. Most of the commentors were self-declared gays. All kinds of unflattering things about Prop 8 supporters were said, so I decided to register on the site and enter the fray. After posting 3 or 4 comments calling people out for making outrageously absurd accusations, I noticed one of my comments had been removed. The individual who removed my comment called me a “lurking troll,” told me I contributed nothing to the conversation, and told me to go elsewhere. Then suddenly, all my other comments but one (which the “remover” had taken the liberty of responding to) were deleted, and I was blocked from the site.
My point is that this is very much an unresolved question, and as the nature of homosexuality is at the very heart of the gay marriage question, we ought not to draw rash conclusions before the evidence is out. If homosexuality is completely biologically determined, then why would anyone oppose gay marriage? On what grounds? It would be the same as differences in skin pigmentation, which almost everyone agrees is not a sound basis to discriminate against classes of people. But if it is also environmental, or can at least be controlled, then there is a more solid argument for not accepting the practice in society. After all, we discriminate against behaviors all the time, its what our criminal and civil codes are all about. And as a society, we have a right to do so. But in the meantime, why not reserve judgment and fight to resist radical changes from the status quo?
Sorry, coming late to the party.
Has marriage been about anything other than love and consent since the abrogation of coverture laws? If marriage does any sort of ideological heavy lifting when it comes to gender roles, isn’t that some sort of vestigial baggage from the bad old days of coverture? And if it is, is that ideological function doomed to disappear eventually without the legal system to keep it in place?
Nate W.: No, I don’t think so. Certainly the notion, for example, that married men have a special economic and emotional responsiblity to their wives and children, and that marriage has a tendency to domesticate young single males because of the permanent presence of a female in their life has little to do with coventure. It does raise all sorts of difficult issues about gender roles, gender essentialism, etc. On the other hand, I don’t think that any and all notion of gender within marriage is necessarily pathological.
I actually am not sure how important law is in terms of maintaining the public meaning of an institution. For example, I think that image of marriage as being primarily about consent and romance, to the extent that one wants to ascribe a 19th century cause, is more likely the progeny of sentimental fiction than the decline of coventure. (Which by the way, was always only a common law doctrine. It did not exist, for example, in Louisiana or the territories annexed from Mexico.)
It’s hard for me to find a way to write “we approve of your household” into social security benefits policy o
But that is exactly what is being done with survivor benefits with social security and marriage and dependents related to the marriage.
That was a great example to pick in trying to illustrate an area where marriage was irrelevant because it has such a large impact (at least for some people — talk to my mom and dad when hospice visits weekly to see my dad if survivor benefits matter to her).
” I’m curious as to how you see polygamy and the Church’s seemingly justified fear of polygamy fitting into all this.”
I missed this comment earlier. Frankly, I have never understood the notion that the Church is frightened that polygamy will be declared legal and they will be in some sort of a quandary. The Church already operates in several countries in Africa where polygamy is legal, and it seems to be holding the line on monogamy pretty clearly. I just don’t see polygamy as being an issue for the Church in these legal debates.
Then I guess my question is, if you don’t think that legally enforceable gender roles were necessarily an important part of whether marriage does ideological work, then why would allowing same sex marriage into the institution constrain that ideological work? If marriage can enforce gender roles without juridical power, then isn’t the ideological force durable enough to remain after same-sex marriage is part of the institution? Alternatively, couldn’t it be that it is child rearing within a legally recognized union which does the ideological work and not the formalized institution? As a third question, why does obligation to each other and children need to be gendered?
“by denying that sex differentiation is a necessary element of marriage, tends to reduce marriage down to affection and consent.”
Divorce, specifically no-fault divorce, which, no one, I have noticed, had mentioned modifying, has already produced the reduction of marriage down to affection and consent.
“image of marriage as being primarily about consent and romance, to the extent that one wants to ascribe a 19th century cause, is more likely the progeny of sentimental fiction”
This is just a random response to Notes from All Over’s “Survey Said…Mormons Disliked”
Gary Lawrence is part of the problem, not the solution.
But what do you suppose he’s up to now (after being handsomely paid for completing his Prop 8 assignment)?
Promoting his latest book, of course.
How Americans View Mormonism (Seven Steps To Improve Our Image)
He’s kidding, right?
So much for the “Mormonism” that meant celebrating the joys of a close-knit family and community.
The rank-and-file gets thrown under the bus while PR types play CYA with their six-digit rewards and media connections.
All the credit and none of the blame.
My Mormon parents were respected in Baptist country for who they were, not for who they aspired/trained/longed to be.
Gary: This is me asking you to show a little more respect.
Does Gary’s 6-figure payment have to be declared as part of the Church’s funding of Prop 8?
I think the government is about to get out of the marriage business altogether by offering civil unions to both gays and straights. This will allow anyone who wishes to be “married” to do so in their own preferred way (church, synagogue, druid forest). Everyone will just get a civil union certificate first (like a birth certificate) and then people can do what they wish about the rest of it just as they do now with baptisms, christenings and the like. Its the only practical solution to the separation of church and state. I look forward to it.