Saturday, January 1, 2011

Prop 8

This is an email I sent my brother in law (active TBM, lawyer, and Bishop) about Prop 8. It's in response to an email he sent me, from which I include some of his quotes and arguments in favor of the proposition. I was disappointed that he couldn't muster any better reasons why the LDS Church should spend so much capital in terms of money, time, and reputation, to support such a stupid initiative. Revelation? Inspiration? No. Just homophobia, bigotry, and blurring of the boundaries between church and state. There is hope from some people in the Church, that it will change and become more open minded, less bigoted, more inclusive. Prop 8 shoots these hopes down. Enjoy:

I was on call at the hospital on Saturday and wasn't very busy (this is why I have the time to write such long, detailed, and linked emails sometimes).  So, I thought I'd respond to what you wrote about gay-marriage and Prop 8. Let me first respond to the arguments you put forward. After that I'll respond to the other arguments I've heard against gay-marriage.

Are you saying that we can't have religiously moral views and fight for those views without being a bigot?  That's purely un-American.. . .   As a purely moral issue, marriage is between a man and a woman, and we believe that God has mandated it that way.  That's what it comes down to.

Religions can say whatever they want, and they can believe whatever they want since our Constitution guarantees our freedom of speech and freedom of religioun.  Some people, who seem to still believe in the vengeful God of Deuteronomy, carry big signs that say "God Hates Fags." They have the First Amendment right believe and say that.  But if you believe such hateful ideas (not that you do), other people also have the right to disagree.  And if your religious beliefs cause you to try and make laws denying a large group of Americans their Constitutional right to marry because they are gay, then others have the right to speak out against you. But this does not, as some LDS argue, limit your freedom of religion.  Allowing gays to marry each other does not restrict your freedom of religion in any way. If you disagree, then tell me how it does? Once it's legalized, you can go on believing and teaching that it's against God's will if you want. You can also go on geting married to whom you want (a right that they don't enjoy).

There is nothing "un-American" about fighting against existing forms of injustice and inequality.  But what IS actually un-American is when people try and deny rights, freedom, and equality to a group of people simply because they are different than you. We are a nation that prides itself on freedom and equality for all people (yet we sometimes have a spotty record in allocating that freedom and equality to minority groups). People have the religious freedom to believe whatever they want, but not the right to silence their critics, nor the right to force their religious beliefs on others by making laws that respect the establishment of their own religion. You are the one who's taken classes in Constitutional Law  - surely you should understand this.

Does a 30 year old man have a constitutional right to marry a 14 year old?  What if the 14 year old really loves him and wants to marry him?  Does a man have a constitutional right to marry more than one woman and practice polygamy?  Does a man have a constitutional right to marry a dog that he truly loves?  No, a man does not have a constitutional right to any of these types of "marriages."  If there truly was a constitutional right to any type of marriage, then all of the statutes outlawing these practices would be unconstitutional.  But they are not because only a certain type of marriage is constitutionally protected at this point, and that is marriage between a man and a woman.  That's the crux of the argument, what type of "marriage" is a constitutional right.  That's the issue here.

Marriage is a fundamental right. Nowhere does the Constitution define marriage as being between a man and a woman. That's why some people are trying to add an amendment to define marriage that way. The freedom to marry your partner of choice is recognized as a fundamental right and is protected by the Due Process Clause of the Fourteenth Amendment (see Turner v. Safley, "The freedom to marry is a fundamental right"). Nowhere does the Constitution, Bill of Rights, or Supreme Court specify what type marriage is protected.  Where does it say that "interracial" marriage is OK?  It doesn't.  It just protects "marriage" - period.  Efforts to prevent certain types of marriage between 2 consenting adults, such as interracial marriages, have been struck down as unconstitutional (see Loving v. Virginia). When I said the SCOTUS has said marriage is a fundamental human right more than 10 times (the number is actually 14 times), I was citing Ted Olson in his interview with Chris Wallace on Fox News (Ted Olson is the conservative lawyer who argued the illegality ofProp 8 before Judge Vaugn Walker). Watch this video. It's on Fox News - so you know it's fair and balanced. 

Dogs and 14-year-olds can't consent to a marriage agreement, so those examples you cite are not applicable (a fact that didn't stop Joseph Smith from marrying Helen Mar Kimball when she was 14). And speaking of polygamy, which you bring up as an example as a certain type of unconstitutional marriage, the LDS Church lost it's day before the Supreme Court in Reynolds v. United States, where it decided that the First Amendment protected religious opinion, but not certain religious action. For example, someone's religious belief in the practice of human sacrifice is not protected under the First Amendment.

Up until Loving v. Virginia, most states denied interracial couples their right to marry.  The justification for such laws, as spelled out in the court decision by Virginia Supreme Court judge Leon Bazile, was that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

It's clear that Bazile didn't know the first thing about race or human evolution. It's also clear that his opinion was racist.  A more enlightened SCOTUS struck down Virginia's archaic anti-miscegenation laws as unconstitutional because it violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Our Church leaders, from Brigham Young to Spencer Kimball, also taught that interracial marriage was immoral, echoing the common racist opinion at the time, and would bring a number of consequences including: "death on the spot" (Brigham Young), the "end of your priesthood lineage" (Mark E. Peterson), a "curse" (2 Nephi 2:21-24), and it was discouraged through Spencer W. Kimball. It was illegal under Utah law from 1852 until 1963 anyway.  However, there was no valid reason to restrict interracial marriages.  It was irrelevant that most people opposed interracial marriage because of their racist or religious beliefs.  However, now that the predictions regarding interracial marriage have failed, and our view of race has evolved, we can all accept that interracial marriage should be legal. This is an embarrassing chapter of both our national and Church history that we have thankfully moved beyond - and hopefully can learned from. Saying that legalizing gay marriage threatens your freedom of religion is as ridiculous as past Mormons saying that allowing interracial marriage threatens their religious freedom.

Similarly to this past chapter of opposition to interracial marriage, the LDS Church has mobilized opposition to gay marriage, and have framed the issue in "moral" terms, with dire warnings, both to society and the institution of marriage, if gay marriage is legalized. However, you cannot legislate your personal religious opinions of what you think is immoral when there is no secular reason it should be illegal. By similar faulty reasoning, it should be illegal for women to go to school or drive a car in Taliban controlled Afghanistan, and it should be legal to stone-to-death adulterers in Iran or Saudi Arabia. These are all laws based on the prevailing traditional/religious views of those respective societies. Of course it's obvious to you that these traditions are wrong. But it is equally obvious to others that the LDS position on gay marriage is wrong as well.

Before you pass a restrictive law, there needs to be a valid reason that certain behavior should be restricted. For example, there are good reasons for having laws prohibiting underage drinking, speeding, theft, rape, and marrying children. What is not clear, however, is why we need laws prohibiting committed gay couples from marrying each other. Saying that marriage should be off-limits to gays because your religious tradition defines marriage as only being between a man and a woman is not a valid reason; it's just stating your own personal definition. Saying that it should be illegal because it's immoral, or that God has declared it as such, is also not a valid reason. That's just your personal religious opinion, and not grounds for restricting others who don't share your religious opinion.

The bottom line is that the Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion." Making a law based only on one's religious view, without any other reason supported by fact, and which infringes upon someone elses fundamental right to marry, is unconstitutional. However, if same-sex marriage did in fact threaten heterosexual marriage, or did harm children, or did damage society in some way, then there would be good reason to make it illegal. However, this has never been shown, and there is no reason to suspect that it would. 

Some of the other reasons I sometimes hear used as reasons to deny same-sex couples their right to marry, that you did not list, is that:

1. "It goes against the traditional view of marriage." Who cares. So did interracial marriage until the 1960's. But as our view of race evolved, so did our "traditional" view of marriage as it relates to interracial couples. Similarly, as our view of gender and homosexuality evolve, so should our view of marriage with regard to gay couples who want to exercise their fundamental right to marry -which is similarly protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  Tradition alone is insufficient grounds for making prohibitive laws.

2. "It goes against nature." Actually, about 5-10% of humans are homosexual. This has probably always been the case throughout human history and across all cultures. Homosexual behavior is also present in nearly all non-human animal species - from dolphins, to bonobos, to penguins, to longhorn sheep. Homosexuality has a strong natural component via genetics or environment factors (such as embryonic development) beyond the control of the individual. If you say it's unatural because they can't have children, and that this somehow threatens our species (perhaps the most ridiculous argument ever), this is also faulty logic. The criteria of producing offspring has never been a requirement for marriage. Do we make heterosexuals sign contracts to produce offspring or anull their marriages if they are infertile, choose to not have kids, or choose to adopt? Homosexual couples can adopt or lesbians can conceive through artificial insemination, just like heterosexual couples can. Finally, even if it is "unnatural", who cares? Drugs used for anesthesia during surgery and labor are also "unnatural." That is no excuse for making anesthesia illegal just because it's unnatural. Artificial life support goes against nature too. So whether or not homosexuality is natural is irrelevant.

3. "It harms heterosexual marriage." This is pure fear-mongering and conjecture used by the Church to control opinion. Allowing other gay couples to marry does not threaten my marriage or your marriage, nor does it threaten our children's right to marry who they want. Heterosexuals will still be allowed to be married after the same right is extended to homosexuals. The Church will not be forced to perform gay-marriages in temples against their religious beliefs. Allowing gays to marry will not limit your freedom of religion one iota.

4. "It harms the kids they adopt."  No study ever has indicated that opposite sex parents are better for children than same sex parents. Rather, every study shows that what matters is having two loving and attentive parents, whatever their gender. Here is the newest study, hot off the press, showing that kids who have two moms do just as well than kids raised by a mom and dad. Children raised by gay parents are not more likely to become gay themselves, or delinquents, or criminals, or even godless democrats.  The American Psychological Association, American Psychiatric Association, and National Association of Social Workers state: "There is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.... Empirical research has consistently shown that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.  If their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families." 

Prop 8 only prevents gay couples from marrying, not from adopting children. Gay couples will have children and adopt children with or without the recognition, benefit, and protection that marriage provides. It does these children a diservice by preventing their parents from marrying each other, just like it would hurt your kids if the law prevented you from marrying your partner.  

5. "The people have spoken! You can't disinfranchise 7 million California voters." I like what Ted Olson told Chris Wallace during a Fox News interview:

If 7 million Californians were to decide that we should have separate but equal schools, or that we would send some of our citizens to separate drinking fountains, or have them be in the back of the bus, that would be unconstitutional. If we didn't have a separation of powers, if we didn't have a Bill of Rights, then 7 million Californians could take away your rights, or my rights or the rights of these citizens in California. But we do have a Bill of Rights, and it's intended to protect us. The 14th Amendment was the result that -- the 14th Amendment that guarantees due process and equal protection to all citizens, to all persons, was the result of a civil war intended to enforce the promise of our Constitution that all men and women are created equal.

For any other reasons I missed, and for a very good legal explanation on the subject, I would encourage you to read Judge Vaugn Walker's full text decision.  It's well written and makes, in my opinion, a very strong case for the unconstitutionality of banning gay marriage that will eventually be upheld by the Supreme Court. There simply is no valid reason any state, or the US as a whole, should be interested in preventing gay couples from marrying each other. It poses no societal risk, or any risk to heterosexual marriges, and there are millions of people who would benefit if the right of marriage were extended to them. 

As you admit, the tide of opinion is changing in America. Younger people support gay marriage and it will soon be the law of the land - just like it is the law in many other developed countries (even Mexico is ahead of us on this!). Just as people's fears of gay marriage have not been realized in these other countries, the fears of some in our own country will not be realized either.  We live in America, the land of the free, not some theocratic government like Iran where religious opinion form the basis of restrictive law. Law should be based on universal values that protect everybodys fundamental rights - including everybodys fundamental right of marriage.

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