Mitt Romney on Marriage

Sci on February 5, 2004 at 11:11 am

I wonder if a law geek with some familiarity with this decision and the Massachusetts law might comment on Gov. Romney’s editorial. Are these really “activist” judges stepping outside of constitutional law, or is that merely conservatives disagreeing with the politics?

Brent on February 5, 2004 at 11:35 am

This is one of the clearest cases of an activist judiciary and judicial overreaching in our nation’s history. The court basically told the legislature that it could not provide any rational basis for limiting marriage to one man and one woman. It overturned centuries of historical practice and understanding of the nature of marriage, and it did so with little concern or care for the consequences. Convervatives, me included, clearly disagree with the political outcome, but of greater concern is the complete lack of deference shown the legislature by the court and the absolute dismissal of prior precedent/history/rational by the court to arrive at its decision. Furthermore, I watched an interview with an attorney close to the case who indicated that from sources he was close to, Justice Marshall (the Chief Justice of the SJC) held the case for as long as she did because the decision was actually 4-3 the other way and she pressured one of the other justices to vote with her.) This is judicial activism pure and simple. If a creature of the legislature–marriage, is to be redefined, then it is up to the legislature to take action, not the court.

Nate Oman on February 5, 2004 at 12:20 pm

I have not read the full SJC opinion, but I have read the portions setting forth the standard of review and their analysis of the marriage statute. The court purported to apply rational basis scrutiny. Generally this is reserved for laws that make classifications that are not obviously suspect. For example, if a law classifies citizens on the basis of race, then the courts will generally look at the law very carefully to insure that it advances some absolutely vital government interest in the least burdensome way possible. This is called “strict scrutiny.” On the other hand, if the law classifies people on the basis of some innocuous category — say whether they have a driver’s liscense or not — then the courts only require that the law have a “rational basis.” What this means is that you have to be able to articulate some reason for the law. It need not be a good reason and the law can be massively over and underinclusive. In fact, it can be a really rather transparently stupid reason. A similar analysis applies to laws that burden particular activities. For example, if a law burdens the right to vote, it is subject to “strict scrutiny.” If a law burdens my ability to purchase chocolate milk, it is subject only to rational basis scrutiny. The scrutiny on the basis of classification comes out of the guarantee in the federal (and all state) constitiion of “equal protection of the laws.” The scrutiny on the basis of burdened activity comes from the guarantee to “due process of law.” In this case “due process” is said to have a “substantive” component.

In its opinion the SJC purported to apply “rational basis scrutiny.” It held that the Commonwealth could not articulate any reason at all for the prohibition on same sex marriage. If one looks at other rational basis scrutiny cases, this is a bit hard to swallow. For example, the U.S. Supreme Court has upheld prohibitions on letting optometrists sell eye glasses because it might be dangerous to let them do so. PULEAS! The law was a transparent attempt to protect the economic position of opthomologists. The SCOTUS has even upheld an obvious drafting error in a complex pension reform statute that randomly gave double the benefits to a group of employees who worked for a six month period in the mid-1960s on the theory that simply benefiting those workers constituted a rational basis for the law.

That said, the SJC was applying Massachusetts not federal law. I don’t know enough about Massachusetts case law to figure out if they have another rational basis test different than the federal test. The SJC did repeatedly cite federal rational basis cases, but it also indicated the the Massachusetts constitution was more exacting than the federal constitution, a position supported by Massachusetts cases on abortion and religious liberty. Also, in recent years the Supreme Court has lurched about a great deal on the precise content of the rational basis test. This is largely the result of the “pragmatic” approach of Justices Sandra Day O’Connor, and to a lesser extent Anthony Kennedy, both of whom seem to be congenitally inclined to split the difference on every issue regardless of the doctrinal incoherence that they create. Finally, it is far from obvious that rational basis scrutiny was the proper standard for the SJC to apply. Marriage has regularlly been held to be a right on par with voting, and gender is considered a supsect (or at least semi-supsect) classification similar to race. This would seem to indicate that “strict scrutiny,” which would require a careful analysis of whether the law was under or over-inclusive, was the correct standard. The SJC never actually reached the issue of the proper standard of review because it held that even under rational basis scrutiny the Massachusetts marriage statute could not be upheld.

Kaimi on February 5, 2004 at 12:24 pm

Sci,

There is a difference of opinion between conservatives and more liberal legal scholars on this issue. It is the view of many, many legal scholars that Goodrich and other decisions (Roe, Brown, etc) are valid exercises of the Court’s power. That said, there is a vocal conservative wing in legal thinking that believes that such acts are “activist” or “overreaching.”

How much does this difference of opinion mean? The conservative wing is clearly outnumbered in the legal academy. It is generally recognized that the top constitutional law scholar in the country is Lawrence Tribe at Harvard Law School, and he has criticized the conservative approach. Other very influential constitutional law scholars, such as Cass Sunstein at Chicago, also disagree with the conservative position.

Conservatives generally view their minority status in constitutional law circles as evidence that some sort of elite liberal intelligentsia has hijacked constitutional law scholarship. Also, the conservative wing is much more visible at forums like Times and Seasons — where they may comprise a majority — than in legal academia generally, where they are a definite minority, though a vocal one.

The bottom line is that any characterization of Goodrich as “clear judicial activism” or such is not the consensus view of constitutional law scholars.

Kaimi on February 5, 2004 at 12:33 pm

Sci,

A good example of the prevailing sentiment among constitutional law scholars can be seen in the e-mail sent on the UCLA con-law list-serv. (It is maintained by Eugene Volokh, who is a very good con law scholar himself).

You can sign on to the list or see the archives, by going to http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof . If you’re interested in the reaction by scholars, look at the archives for around the time the decision first came down. You will see that there were some critics of the decision, as well as many people who supported it.

Adam Greenwood on February 5, 2004 at 12:41 pm

On the other hand, Sci, the consensus view of liberal constitutional scholars would probably be pretty shocking to your view of law and what it does. It might be an interesting exercise for you to read the relevant portion of the Massachussetts Supreme Court and see whether it suggests anything to you about gay marriage. Perhaps you can explain why no court has worried about this before.

Although Kaimi pooh-poohs the idea that these scholars and their judges are a perversely liberal elite, I’ve no doubt that their personal opinions about matters of morality and governance are wildly to the left.

Kaimi,
lay off the scare quotes, por favor.

Michelle on February 5, 2004 at 12:42 pm

Kaimi, are you sure about that bottom line? That’s a pretty liberal use of conjecture, is it not? I’d be surprised if constitutional law scholars have their consensus defined already. As far as judicial activism goes, the term has been used too much to have any real meaning. Reading the opinion will give you a clearer sense of the court’s real role in this debate — absolutely no rational reason why marriage should be kept between a man and a woman? Come on.

Nate Oman on February 5, 2004 at 12:54 pm

Kaimi: I have talked with Laurence Tribe about this issue. Even he thinks it is a very difficult call, and he also does not think that gay marriages — rather than civil unions — are constitutionally required. Or at least he didn’t think so in 2002. Furthermore, Tribe himself believes that the approach of judicial conservatives like Justice Scalia is intellectually defensible (or at least he is willing to say so in his more lucid moments), and he freely admits that the intepretive issues that decide the outcomes in these cases (at least for doctrinalists like himself) are very difficult. He would certainly never appeal to the concensus of Cass Sunstein and himself for the legitimacy of a proposition of constitutional law. Also, there are poltical selection effects in constitutional law scholarship. Finally, as you point out there are conservative con law scholars who disagree: Fried, McConnell, et al are no slouches.

Kaimi on February 5, 2004 at 1:04 pm

Nate, Michelle,

I recognize that there are potential legitimate concerns. My point was (1) that there is not a consensus that the boogeyman of “judicial activism” is an actual problem existing in the judiciary, and (2) that there is not that I have observed any consensus that Goodridge was an instance of impermissible judicial activism.

I am not making the positive claim that there _is_ a consensus that Goodridge is _not_ judicial activism. But I think it is entirely defensible (and indeed, probably beyond dispute) to state that there is no consensus that Goodridge is impermissible judicial activism. (And there are certainly constitutional law scholars who seem to actively believe Goodridge was properly decided.)

To answer Sci’s original question of whether “these are really ‘activist’ judges,” the answer is that if you define “really” as being a consensus of constitutional law scholars, then no, they are not really activist judges.

Matt Evans on February 5, 2004 at 1:29 pm

Everyone who is surprised that liberal law professors don’t complain when liberal judges impose liberal laws, please raise your hand.

lyle on February 5, 2004 at 1:29 pm

Sci:

I suggest reading Governor Romney’s excellent op-ed. Here is a man elected in a very liberal state, who is personally conservative and charged with enforcing the legitimate laws of his state.

Brent on February 5, 2004 at 1:45 pm

Kaimi states that “to answer Sci’s original question of whether “these are really ‘activist’ judges,” the answer is that if you define “really” as being a consensus of constitutional law scholars, then no, they are not really activist judges.”

First, as pointed out, do we really have consensus? Maybe. Maybe not.

Second, Sci was asking the opinion of commentators here. Who care’s what a consensus of so-called and self-proclaimed constitutional scholars believe about Goodridge, Lawrence, Roe, etc. To suggest that there may not be a liberal bias in legal academy is humorous.

If one looks back at our Constitutional structure and the original intent of the Founders, these judges clearly have overstepped their Constitutionally limited role by perverting the plain meaning and original understanding of various Constitutional provisions. Simply because liberal “scholars” believe more in a “living breathing Constitution” that protects whatever is the popular leftist cause of the moment rather than the rule of law and Constitutional government by three separate but related branches of government, does not change the character of what these courts do. Simply answer one question–prior to the Massachusetts decision was same-sex marriage required in any State in the Union? The answer is no. Same could go for Roe or Lawrence and any other decision properly viewed as activist. Prior to such decisions, were the legislatures free to exercise their police power to protect unborn infants and to protect the health and morals of the community. The anwer is yes.

Again, it really doesn’t matter whether there is consensus on this in the legal community. At one point the legal consensus was that blacks were only 3/5 of a person. Now, just because, according to Kaimi, a majority of jurists and legal scholars have bought into a view of judicial review that is excessively broad and overreaching, doesn’t mean we have to accept their viewpoint, and, where someone like Sci asks for us to shed some light on the issue, simply summarizing what Lawrence Tribe and others have to say does a disservice.

Kristine on February 5, 2004 at 1:53 pm

I’m not a lawyer, nor do I play one on TV, so this may be completely stupid, but it seems to me one could make a distinction btw the decision announced in November (October?) and the one announced yesterday–in the first decision, there was a constitutional question as to whether individuals could be denied the right to marry based on sex. Since Massachusetts does have an equal rights clause in its constitution, that doesn’t seem like a question a judge would have to be “activist” to address. However, when the legislature proposes an alternate means of satisfying the equal rights clause of the constitution, it does seem “activist” of the court to preemptively overrule the legislature’s solution. ???? Is there a lawyer in the house?

Brent on February 5, 2004 at 1:59 pm

Kristine, from what I have read, Massachusetts law does allow the legislature to seek preemptive advisory opinions like the one sought in this case. So, in that sense what was done yesterday was not necessarily activist. The original decision, however, is another matter. Hadley Arkes commented on the advisory opinion and Massachusetts law today at National Review Online. Here is the link:

http://www.nationalreview.com/comment/arkes200402051022.asp

clark goble on February 5, 2004 at 2:03 pm

Brent, surely you don’t think that only liberal judges think that the meaning of some passages of law are contextually dependent. Further, how on earth can one apply law to new circumstances unconsidered by the authors unless there were such contextual matters? While I’m very sympathetic to elements of strict constructualism, I find that the way some conservatives take the matter makes no sense at all. I also think that typically authorial intent is far more complex than it first appears.

Further it seems historically difficult to make this a “liberal” issue. Consider the recent court ruling regarding the Americans with Disabilities Act. There the author explicitly said that he and the authors intended it to include things like epilipsy while the court decided the exact opposite. Yet this appears to be a rather conservative rather than liberal ruling. (Lawyers in the audience can correct me here)

I also am confused at your example. Surely the consensus regarding blacks being 3/5′s a person was due to it being explicitly stated that way in the constittuion and was only changed via ammendment. Isn’t this an example of the failing of the strict constructivist and *not* the liberal view?

Brent on February 5, 2004 at 2:24 pm

Clark I should not have use the 3/5 person example. However, my purpose in doing so was to establish that supposed consensus on issues does not establish the propriety of such issues. As to strict constructionism, legislative intent can be difficult to ascertain. However, that is what judges are supposed to do. Rather than making no sense, I believe that the only way to make sense of judicial review in the first place is some sort of original intent or strict constructionist approach. Why? Because if you don’t take that approach then you undermine the purpose of writing down our laws in the first place. If what is written and the writing’s intent are irrelevant, then why not just appoint a panel of judges to decide all matters relative to our society. We wouldn’t need legislatures or an executive branch, just a supreme all-powerful judiciary. But that is not the system we set up. We set up rule by the people through their elected representatives, said representatives coming up originally with the set of rules whereby they and the judiciary would be governed.

I have not read the ADA opinion so I cannot comment on it. I would object to a court imposing conservative principles in the same manner that liberal jurists do. Many of the political and governmental problems in this country are the result of a failure to adhere to the governmental system established by the Constitution. Would we have a Federal deficit if Congress and the President only spent tax dollars on Constitutionally allowed programs? Probably not. Would more than 65 million unborn children been killed over the past 31 years had the Supreme Court strictly contrued the Constitution? Again, probably not. Times do change, but the Courts are not the body to determine whether different societal mores and the like warrant revision of Constitutional principles. Simply because homosexuals are treated more favorable by society today does not mean that same-sex marriage must be allowed. That is why we have legislatures, and why constitutions can be amended–to deal with changing times. The Courts simply are not the proper body for determing (a) what changes are required and (b) when such changes should occur.

Kristine on February 5, 2004 at 2:25 pm

Brent, you’ll forgive me for suspecting the National Review Online is not exactly the place to turn for a thorough and unbiased review of the decision.

I know the legislature sought an opinion, and I get the advisory function (I think), but I don’t understand how the court could be so certain civil unions couldn’t measure up when so many details of such legislation don’t yet exist. It seems to me that it would be more appropriate for an advisory opinion to set out standards the legislature would have to meet in their creation of a statute, rather than simply saying any solution not called “marriage” won’t work.

(And hey, shouldn’t you be off somewhere dancing for joy that the resident liberal heretic sort of agrees with you about something :) ?)

Brent on February 5, 2004 at 2:31 pm

I am doing a little jig as we speak.

The article wasn’t an unbiased review of the opinion but rather conservative commentary that addressed your question about Massachusetts law within the body of the commentary.

As for the content of the new legislation and the advisory opinion, I think what the SJC said is essentially “We said that you have to allow marriage to same-sex couples, and we mean exactly that. You (legislature) cannot come up with an alternative system, you will give same-sex couples the right to marry, with all of the benefits and burdens. Period.” I am paraphrasing, but I think that is the gist of what they said. The Court felt that marriage was the standard the legislature should follow in incorporating same sex couples into Massachusetts marriage law.

lyle on February 5, 2004 at 2:34 pm

Kristine:

We all welcome converts to the dark side.
Especially when we can all engage in honest, thoughtful discussion of what is likely to be the most highly charged issue since abortion.
Sadly, for those that want to see a resurgence of Mormon democrats…I think this issue alone will maintain the current alignment. IMO.

Greg Call on February 5, 2004 at 2:35 pm

The term “activist” is a political term, not a legal one. When liberal judges strike down conservative laws (i.e., _Brown v. Board_, _Roe v Wade_) conservatives condemn it as judicial activism. When conservative judges strike down liberal laws (_Kimel v Florida Board_ (limiting age discrimination suits) or _U.S v Morrison_ (striking down the Violence Against Women’s Act)) liberals call it judicial activism. This term was also used by liberals to describe Bush v. Gore.

As long as there are judges required to determine whether laws comport with the constitution, there will be cries of judicial activism on both sides. Though the term is politically efficacious, IMO it is analytically empty.

Greg Call on February 5, 2004 at 2:38 pm

Here’s a more thorough discussion of “judicial activism” written by one of my con law professors:
http://writ.news.findlaw.com/dorf/20000501.html

clark goble on February 5, 2004 at 2:49 pm

Brent – you miss something rather clear. First off you assume that there is a simple intent with laws that a judge could discern. Yet intentions are very complex things even within a single person. When you have hundreds of people with often radically different views then to me the issue of “original intent” becomes almost meaningless. At best we can ask what a text meant in a simple reading in a particular context.

I’m very, very leery of people crying “original intent” especially when what they really mean is “my idea of what the founding fathers *ought* to have meant.”

Brent on February 5, 2004 at 2:50 pm

Greg, regardless of who is wielding the accusation of “judicial activism” if what has in fact happened is the manipulation of constitutional principles to achieve a desired objective (conservative or liberal) then the charge is justified. Simply because the phrase has been politicized does not eliminate its existence or the very real legal problems created by judicial activism.

Nate Oman on February 5, 2004 at 3:03 pm

I agree with Greg about the term “judicial activism.” However, I do think that it is possible to criticize the logic and holdings of cases that do not involve resort to vacuous labels.

Brent: Given that Goodridge is an interpretation of the Massachusetts state constitution, and — if I remember correctly — a provision of that constitution adopted within the last thirty years, it seems that all of your chest beating about the Founders and original intent is completely beside the point.

Brent on February 5, 2004 at 3:05 pm

Clark, I understand what you are saying. However, I do not think determining original intent is as difficult as you suggest. For instance, when a bill is proposed, there is generally some discussion of the reasons for the legislation and what such legislation is intended to do. At least in general terms we can ascertain the intent. At the very least we can ascertain whether issues such as abortion, same sex marriage, and sodomy were issues that the original drafters intended to be constitutional rights when various provisions were drafted.

Greg Call on February 5, 2004 at 3:12 pm

Brent,
Tough cases can rarely be answered by an appeal to the text, or even original intent, of the constitution. So there is always interpretation and analysis of the text and precedent. To call such interpretation and analysis “manipulation” is merely to say you disagree with the interpretive methods or legal analysis used. It is more useful to have a substantive discussion on the methods of textual interpretation or legal analysis (as Nate does above) than to simply label decisions we disagree with “activist.” So what is wrong with the legal analysis in Goodridge?

Nate Oman on February 5, 2004 at 3:12 pm

I just read the Dorf piece which is very good. I agree with basically everything he says, with one exception.

I think that Lochner v. New York was properly decided.

Kaimi on February 5, 2004 at 3:14 pm

Brent,

There is an extensive literature about the difficulties of nailing down original intent. Eskridge, Dworkin, and others have highlighted some of the problems. They include (to give a very quick, off-the-cuff recap of some of the critiques I’ve read):

-The problem with ascribing an “intent” to a legislative body.
-Whose intent matters? Does the intent of people who voted against a bill matter? Is it a “majority” intent rule?
-Constitutionally, are we talking about Jefferson’s intent? Madison’s? Hamilton’s? What if they disagreed?
-What if a legislator stated one intent but evidence (such as private writings) indicates another intent?
-How do we treat legislators who expressed different intents at different times?
-Why does legislative intent matter at all — shouldn’t we focus on the text of the document?
-If we focus on the text of the document, whose reading of it prevails? Do we read it as what we think legialtors thought it meant? What we think the populace thought it meant? What we think Jefferson thought it meant?

-and so forth.

I understand originilists who make a decision that the benefits of originalism outweigh any potential problems in finding out original intent. On the other hand, some originalists pretend that no problems exist — a position that does not seem defensible.

Brent on February 5, 2004 at 3:16 pm

Nate, I am not so sure. Admittedly, I have not researched Massachusetts law or the circumstances surrounding the amendment of the State constitution. I was trying to make the larger point about judicial activism. However, I would like to see someone argue that in amending the state Constitution, it was the intent of anyone to cast aside the centuries old definition of marriage. I am willing to bet that there was no such intent, and thus, the SJC created a new right out of whole cloth. This shows that danger of enacting laws or constitutional amendments without specifically forestalling improper interpretation.

I know that the Church and many others opposed the Equal Rights Amendment because of the risk that a court could later construe the act to grant a right to same-sex marriage. Of course the proponents of the ERA said that conservatives were crazy and that such concerns were unfounded, that the ERA was not intended nor would it allow any such thing etc. I think it was the Massachusetts ERA that provided the base for the SJC’s decision. I guess conservatives were right to be concerned. And this just shows the problem with judicial activism. Undoubtedly the intent of the Massachusetts law was to provide certain rights, and the SJC twisted that law in ways in which it was not intended.

Nate Oman on February 5, 2004 at 3:19 pm

Greg: BTW, I think it is a cheap shot to suggest that conservatives who are critical of Brown supported the segregation laws that Brown struck down.

Nate Oman on February 5, 2004 at 3:23 pm

Brent: the precise basis of the holding in Goodridge is a bit muddy. By saying that there was no rational basis, the SJC side stepped the issue of the proper standard of review and with it the precise ground for their ruling. On the other hand, the Massachusetts constitution guarantees liberty, equality, and dignity. Liberty and dignity may have been the basis of Goodridge.

Finally, intentionalism of the kind that you seem to subscribe to is subject to some very powerful criticisms when you are talking about collective decision making — e.g. Condercet’s Paradox, etc. These sorts of criticisms have led many judges and scholars — including conservatives like Scalia and Frank Easterbrook — to abandon intentionalist analysis completely.

Sci on February 5, 2004 at 3:25 pm

I appreciate your commentary on the legal issues. The interpretation as expected is polarized by political camps. I have not seen any local (Mass.) polls on the recent decision, but expect that many in the legislature who would support civil unions will shy away from gay marriage and not risk offending a largely Catholic constituency.

May I make another inquiry, if there is a sociologist geek in the audience, as to the empirical status of Romney’s claims about marriage? I take it as a tenet of Mormon faith that the family is a basic building block of society, and “the development, productivity, and happiness of new generations are bound inextricably to the family unit.” Given this, offering incentives for married couples with children may be justified on the basis of “building a stable new generation and nation.”

It is often hard to explain these ideas to my fellow Bostonians who do not share my beliefs. Can one make a compelling argument for Romney’s position based on sociological or historical data?

Kaimi on February 5, 2004 at 3:25 pm

Nate,

I have to disagree.

It is true that most modern conservatives who are critical of Brown are also critical of the segregation regime. (Similar to Wechsler, Neutral Principles). On the other hand, at the time of the decision, there was a strong belief among conservatives that segregation was a proper system, and that crazy judicial activists had gone and struck it down. Recall Strom Thurmond’s Dixiecrat bid for president. (And such sentiments did not end with Brown, and came up with later cases like Loving v. Virginia as well).

Yes, it would be wrong to ascribe those beliefs to most conservatives today (if Greg had done that), but I don’t think Greg did that.

clark goble on February 5, 2004 at 3:27 pm

Just to add to Kaimi’s list, when coming to a consensus of *text* that is passed, often lawmakers intentionally leave elements vague. Vagueness is thus intentionally open to numerous readings depending upon context. This issue of intentional vagueness seriously undermines the whole project of original intent. I say that since most arguing for original intent loath the notion of stretch marks in the constitution or legislation. Yet this is due not merely to a belief in a meaningful original intent but a belief in a meaningful *complete* and *finite* original intent. Something that I *seriously* doubt.

Nate Oman on February 5, 2004 at 3:27 pm

Kaimi: Not all originalists are intentionalists. Indeed the uber-originalist of the current Supreme Court, Antonin Scalia, is not an intentionalist. (Thomas may be.) The Dworkin arguments (like so many of Dworkin’s arguments) are responding to either (1) a straw man; or, (2) arguments that were long ago abandoned. (Note: my view of Dworkin is shared by wild righ-wingers like Brian Leiter.)

Greg Call on February 5, 2004 at 3:32 pm

Nate, I never suggested that conservatives support segregation laws. I stand by my invocation of _Brown_ because it is famously a case where a liberal Court struck down majority-supported laws using reasoning that was (and still is) condemned as activist.

Nate Oman on February 5, 2004 at 3:33 pm

Kaimi: I was thinking about someone like Eisenhower, who was not happy with the Warren Court, but nevertheless opposed segregation and was willing to call out the U.S. Army to see to it that federal court orders were complied with. Tarring Eisenhower and his ilk with the same brush as Strom Thurmond is a bit simplistic.

clark goble on February 5, 2004 at 3:34 pm

I’m clearly no lawyer, although I find the issue of intentionality fascinating philosophically. So I have thought about that a lot.

I should say that while I’m not completely familiar with its use in legal circles, I tend to view myself as an “originalist” in that I think the meaning of a text ought to be drawn from its original context (vagueness and all) and then a best faith effort made to apply that meaning to different contexts.

A great example of this might be the issue of using infrared cameras to look for marijuana houses. Now clearly the light is public and so a strict literalist reading would say that the police action is legal. Yet the kind of originalist view I take would ask what the meaning of the law meant in its 19th century (or 18th) context, figure out the practical limits and then apply that to the modern era despite the conflicts over literal or intentional analysis. In that case the text clearly limits police knowing what is going on in a house without a warrant unless an average person would know.

I suspect my views are biased here via my Peircean pragmatism which sees “common sense” views as “foundational” for all other analysis.

Brent on February 5, 2004 at 3:37 pm

Greg, Nate, I will have to respond more fully about the holding when I have a little more time. But generally, and I think you can glean this from my prior comments that I find it objectionable that the court would show so little deference to the legislature and to the centuries old definition of marriage; that the court would suggest that there is no reasonable or rational basis for the state’s definition of marriage; that a constitutional provision would be construed to grant a right that surely cannot be properly said to be within the purpose of the provision.

Kaimi, I agree that “it would be wrong to ascribe those beliefs to most conservatives today”, unfortunately many are not as kind or tolerant as you. Raising questions about the legal reasoning of Brown and other similar decisions during law school did not win me many friends (although surprisingly my extremely left wing con law teacher bumped up my grade because of my consistent analysis/critique of the various decisions we discussed in class).

Nate Oman on February 5, 2004 at 3:38 pm

Clark: in legal parlance you adopt the theory of “original meaning” which is different than the theory of “original intent.” To my knowledge, few originalists these days subscribe to original intention. Lots and lots of people — including liberals — subscribe to original meaning. I would probably defer to Kaimi on the precise contours of the debates in con law theory on this, since I don’t follow the con law arguments closely. I prefer “real” law (contracts, torts, property) and legal philosophy.

clark goble on February 5, 2004 at 3:38 pm

Kaimi, I don’t think ascribing “intent” to a community is difficult. (i.e. your comment about a legislative *body*) Even with regular humans you have the same issue with a distinction between intents that are overt and obvious and unconscious or hidden intents. Any textual product includes those hidden intents as much as the intents we are aware of. That’s why we can go back to something we wrote and realize “gee I was angry” while not consciously intending it at the time. Yet it is clearly present in the text.

This is problematic in law as it implies that the role of ones culture and history always manifest themselves in a text, whether consciously intended or not. This leads to huge problems when unraveling original intent beyond the problem of conflicting intents.

But clearly the problem of consistency in intents is the biggest problem with using intentionality as a guide to meaning. I think the public meaning of the *text* ought to trump what the authors thought or intended.

Kaimi on February 5, 2004 at 3:52 pm

I think that Greg’s point about Brown is very valid.

If we use generally accepted ideas of “activism” it would probably be accurate to say:

“The two most activist decisions of the past 50 years have been Brown and Roe.”

One of the two decisions is almost universally admired, the other is hated by conservatives. Conservatives who critique activism thus have the difficult task of trying to advocate a coherent position that would not allow Roe, but also one that would not prohibit Brown.

Nate Oman on February 5, 2004 at 3:56 pm

Kaimi: as I say above, I don’t think that activism is an especially useful label. I think that it is a bit unfair to assume that conservative critiques of Roe boil down to empty rhetoric about activism. Furthermore, I think it is unfair to say that everyone who criticizes a judicial opinion overturning a law does so because they really support the law being overturned, which is what I took Greg to be saying about those criticizing Brown. As I tried to make clear with the Eisenhower example, I don’t think that this criticism holds true even for those who criticized the opinion at the time.

Ryan on February 5, 2004 at 4:01 pm

Sci, regarding your second question, asking for backup on Governor Romney’s assertions about family being the basic building block of society, I think this article, by Stanley Kurtz is interesting.

http://www.theweeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp?pg=1

Kurtz details some of the causes and effects of allowing gay marriage in Scandinavian countries. While he doesn’t specifically address what happens when families completely breakdown (the breakdown is happening as we speak, so we won’t know its effects for a bit more time), he provides an elegant rendering of the process of family breakdown as it has already begun in one region of the world.

Did anyone else think Romney’s style in his op-ed was….juvenile? I felt like I was reading an editorial in a junior high newspaper, aimed at fourteen year olds. Why would he feel a need to talk down to the readership of the Wall-Street Journal?

Nate Oman on February 5, 2004 at 4:58 pm

Ryan: Very interesting article. I am not convinced that the author has made the case that gay marriage is a cause of family decline, rather than simply an effect of it. I would be interested in hearing what Brayden, our resident lefty sociologist has to say about it.

Brent on February 5, 2004 at 5:09 pm

Nate, Kurtz has written two follow up articles at NRO to his Weekly Standard piece:

http://www.nationalreview.com/kurtz/kurtz200402020917.asp

and

http://www.nationalreview.com/kurtz/kurtz200402050842.asp

Ryan on February 5, 2004 at 5:13 pm

Agreed, Nate, I don’t think the causation is anything near concrete, but I take the article as relevant nonetheless, in showing that 1)the institution of marriage itself is not impervious, and 2) allowing gay marriage does help to dilute the meaning of the institution.

There is another, more cynical thread in the article, that radical feminists and queer theorists (their term, not mine) wish to use gay marriage as an innocent-seeming means to bring down the traditional structure of the family in general. It’s an interesting theory, but far too conspiratorial for me without any proof.

Whatever your view on that inflammatory hypothesis, it’s getting easier and easier to see why gay marriage really poses a lethal threat to the family.

Brent on February 5, 2004 at 5:17 pm

Ryan, I don’t think it is mere theory. These self identified radical feminists and queer theorists have stated as much. Is it the overall goal of many in the homosexual rights movement no. But it is definitely the goal of some, and we know this not from any conspiracy theories but because they have stated publically that these are their goals.

Jeremiah J. on February 5, 2004 at 5:25 pm

It is interesting to me that *the* Mormon political defense of the family is that it is “the basic building block of society.” I have often wondered what this means, and what it entails, especially now when I wonder whether it could not also be applied to gay marriage.

This is an important point because what is seriously lacking on both sides of the current gay marriage debate is a serious argument in defense of the publicly recognized institution of marriage. (We are very anxious about “defending marriage”, but we have not explained adequately, IMO, what we are defending or why) The SSM side calls for non-discrimination, but neglects the equally, and more consistently, non-discriminatory solution of abolishing marriage altogether. The conservative side is no better on this point since it usually tries to argue from popular opinion and prevailing mores. So, one reason why the comparison with interracial marriage isn’t laughed to scorn is that there is no explicit moral defense of marriage that is commonly advanced.

For Mormons, such a public defense of marriage becomes all the more difficult because we must at least implicitly account of polygamy. The sophisticated philosophical defenses of the family that are available to us (notably, that of Hegel) generally exclude polygamous marriages.

Ryan: Yes, I did also find Romney’s column somewhat juvenile. Put this one together with Card’s confused ramblings about Iraq and we Mormons are fairing badly lately in our WSJ efforts at political issues.

Adam Greenwood on February 5, 2004 at 5:37 pm

Kaimi,
Brown was judicial activism. The Court shouldn’t have done it. Agreed.

The problem is that those of us who make a distinction between law and politics keep getting hit over the head with decisions that are legally bad but politically popular (and, dare I say, wise), such as Brown. The Constitution is not a Perfect Document.

Sci on February 5, 2004 at 6:45 pm

Jeremiah,

I take it then that you do not buy the argument that Romney implies, and is made explicit in the second NRO link Brent posted above, namely, that children fare better in a stable environment where the father and mother stay together over long periods of time? They argue that this stability increases childrens quality of life and increases their contributions to the commonwealth. Therefore the state is fair in encouraging this behavior through the legal arrangements we know as marriage.

Look, I realize that this is a very simple argument and well used. I just wanted to get it out on the table for discussion. Why is it that you reject this and similar arguments? Perhaps you have other arguments for marriage yourself?

Kaimi on February 5, 2004 at 6:49 pm

Adam,

I don’t know if we’re agreed on Brown. You say Brown was activism, so the court shouldn’t have done it. That’s consistent with your general stance that court’s shouldn’t interfere with legislative decisions.

I say that courts should enforce and protect constitutional rights, even where that means interfering with legislative choices.

I think that Brown was (in general) a good decision, and that the judicial freedom that judges have is necessary to allow them to make Brown-like decisions when required.

Kaimi on February 5, 2004 at 6:51 pm

(I have to learn to finish my argument before hitting “post”).

So, we are agreed that for people who believe that judicial activism exists and should be curtailed, Brown is a bad decision. However, I don’t really subscribe to either of those theories. :)

Russell Arben Fox on February 5, 2004 at 7:46 pm

Jeremiah,

“It is interesting to me that *the* Mormon political defense of the family is that it is ‘the basic building block of society.’…For Mormons, such a public defense of marriage becomes all the more difficult because we must at least implicitly account of polygamy.”

Interestingly (for me, at least), this was exactly the topic of my very first T&S post: http://www.timesandseasons.org/archives/000073.html

brayden on February 5, 2004 at 8:20 pm

After trudging my way through that overly-long essay/rant, I’m ready to comment Nate. Thanks for asking. Keep in mind that I’m far from being an expert on this area.

I think Kurtz cites some relevant research in the essay. Yes, the Scandinavian countries do have very high out-of-wedlock birthrates and a low marriage rate, but as he notes, this is not due to gay marriage. It seems pretty simple: if you live in a society where marriage is no longer the staple institution that binds individuals together, why would anyone care who is restricted from engaging in it? Does gay marriage further erode the meaning of marriage? I’m less sure that this is the case.

If you live in a country where people do not value marriage, how could it further invalidate the importance of marriage to allow two people to get married who actually desire to enter into the contract? In fact, David Popenoe, a sociologist mentioned by Kurtz, makes this argument frequently. Keep in mind that Popenoe is one of the leading conservative scholars on the case for marriage and that he is worried that marriage is losing its meaning and place in U.S. society. He wonders why, if we are concerned about the invalidation of the marriage institution, would we prohibit willing marriage participants from getting married? His argument is that this will only increase the number of cohabitating partners and that over the long run this will do more to delegitimate marriage than would allowing them to marry in the first place. I can’t say that I find much fault with his logic.

Second, Sweden is not comparable to the U.S. in many ways. Kurtz wants to claim that Sweden is the experiment that Sullivan and other pro-gay marriage advocates have been looking for. But how can you have an experiment without a control group? Kurtz doesn’t talk about other comparable countries that haven’t instituted gay marriage that are basically similar to Sweden in many other ways. He just says, Look, if you want to be like Sweden, institute gay marriage. That’s not really fair though given the numerous ways that the U.S. is different from Sweden. Ever hear of American exceptionalism Kurtz??

Anyway, my main point is that pro-gay marriage advocates still have a case for wanting to legalize gay marriage in a few states as a kind of experiment. In the U.S. where most people still value marriage and families, it is highly likely that gay people who want to get married will do so in a way that most conservatives would agree is respectable and appropriate. Same sex marriages in the U.S. will probably look much more like heterosexual marriages in the U.S. than Kurtz wants us to believe.

clark goble on February 5, 2004 at 8:45 pm

When reading the article I was very curious to see what was going on in related countries like Norway, Finland and Denmark. Sadly that information (which would be a semi-control group) was nowhere to be found.

Adam Greenwood on February 5, 2004 at 10:21 pm

Brayden,
Have you left anything? You argue that gay marriage doesn’t matter in Sweden because marriage is weak there, and you argue that gay marriage won’t matter in the US because marriage is strong here. On what basis do you conclude that redefining marriage will have no effects no matter what? Or are you saying that redefining marriage might have some baneful effects, perhaps even in Sweden, but that the evidence isn’t conclusive?

brayden on February 6, 2004 at 12:15 am

Adam – Yeah, I’m saying that there is little evidence that instituting gay marriage has had a negative impact on heterosexual marriages. We don’t have any examples of gay marriage in the United States so my assertion of its plausible effects are just speculative.

Brent on February 6, 2004 at 9:57 am

I find it interesting that the liberal and pro-gay marriage Washington Post has also come down against the Massachusetts Supreme Judicial Court’s actions of this week:

http://www.washingtonpost.com/wp-dyn/articles/A17475-2004Feb5.html

Brent on February 6, 2004 at 10:07 am

“We don’t have any examples of gay marriage in the United States so my assertion of its plausible effects are just speculative.”

That I think is the point of Kurtz’s article and the point of many conservatives. It is at least as plausible to speculate that the effects are going to be negative. Looking at the Scandinavian nations that have allowed same-sex marriage or quasi-same sex marriage, regardless of whether we have a true cause and effect, we see that it has not helped strengthen heterosexual marriage, but in fact may have contributed to the continued decline of that institution. I think Kurtz has the better argument that, in light of what we see there, we are better left not experimenting with same-sex marriage here, especially since we may be able to preserve and/or restore a proper understanding of the purposes of marriage.

Matt Evans on February 6, 2004 at 10:55 am

WaPo’s real concern is expressed in their final paragraph: the court over-reached.

They fear that the court has put too large a flame under the frog’s pot, and that the frog they’ve seduced to sleep while the water warms may now jump out. The media is more practiced at the art of frog boiling.

The media has successfully led so many people by a flaxen chord (including many contributors to T&S) toward accepting gay marriage, they’re convinced their incrementalist approach is working. Now the Mass court has pushed too fast.

Brent on February 6, 2004 at 11:19 am

That was the suggestion made in the Hadley Arkes piece I linked to yesterday. He notes that this may be the consolation prize for conservatives. The SJC has shown average unthinking American just how extreme the agenda is and that there will be no quarter given. (In fact, the Court in a footnote noted that Masschusetts would not have to grant same-sex couples the right to marry, if it took away the right for all other couples. Unbelievable.)

Jeremiah J. on February 6, 2004 at 3:40 pm

Russell: Yes, I remember your post now. I’ll have to go back and read it all, and more carefully. I am quite interested in this issue.

Sci: From the social research I’ve seen I tend to agree with the notion that children ‘do better’ in general in homes with a both a mother and father. But these sociological arguments are not enough to defeat the idea that individuals have a fundamental right to contract marriage to whomever they feel strongly attracted to. I disagree that there is such an individual right which must be given equal protection, but the reason I disagree is that I see the family (a certain kind of family) as having its own claim which is not rooted in social good but moral right. It is the nature of legal rights that “long term social good” does not nullify them. My problem is that I am still trying to find a way to defend the family in this way.

clark goble on February 6, 2004 at 3:48 pm

I’m certainly leery of government based “social engineering” which is what a lot of the arguments for traditional marriage reduce to.

However I don’t understand why the courts reject the very *meaning* of the word marraige as being relevant. Surely the history ought to count. The problem appears to be the social engineering the state has done in *encouraging* marriage by tying various rights to marriage.

The solution is of course to divorce the religious sense of marriage from the contractual legal senses. I doubt that will happen and I could see this being a big election issue. (As someone mentioned to me, we Americans seem overly focused on ideology and issues of symbols far more than practical issues despite our supposed pragmatism)

Nate Oman on February 6, 2004 at 3:54 pm

Jeremiah: I confess that I am a bit confused by your use of the the terms “legal rights” and their “nature.” What are you talking about here? Constitutional rights? Some notion of abstract natural rights? If you simply mean something like “legal entitlement” then your sweeping assertion that “sociological arguments” are not sufficient to defeat them is either trivially true, or obviously false. It is trivially true if you are talking about sociological arguments being used to defeat legal claims in a court of law. It is obviously false if we are talking about normative legal theory. You have a legal right to a home-mortgage tax deduction. Surely we could repeal this legal right in good conscience if we decided there were compelling “sociological arguments” against it.

I’m confused.

Nate Oman on February 6, 2004 at 3:56 pm

Jeremiah: Final point. Under the reasoning of the SJC in the Goodrich opinion, a single “sociological argument” would have been sufficient to save traditional marriage under a rational scrutiny standard of review, the standard they purported to apply. They came to the conclusion that it wasn’t even possible to state a minimally coherent “sociological argument” in favor of traditional marriage.

Taylor on February 6, 2004 at 3:59 pm

Matt,
I really don’t feel like my concerns with legal opposition to SSM have been influenced by the media (aka, the devil incarnate). Rather, they have been influenced by personal relationships, careful consideration, and a desire to fulfill the Savior’s imperative to love my neighbor.

Kaimi on February 6, 2004 at 4:02 pm

Taylor,

The fact that you don’t think the media is controlling you can only be viewed as evidence that the media is controlling you even more than we had previously suspected.

How’s that for irrefutable proof that the media is controlling you? :)

Brent on February 6, 2004 at 4:25 pm

Taylor, I don’t know how it is that so many people believe that it is “loving one’s neighor” to support them in their sins. Joseph Smith taught that there was no greater act of charity than taking someone by the hand and lifting them out of their sinful state. Now we have people running around saying that it is charitable and loving to treat those in a sinful relationship as married couples.

Furthermore, and I know I have asked this before, but I truly don’t feel like anyone has given me a good answer, what about the Saviour’s imperitive to follow the prophet. Strip away all of the other arguments/doubts/etc., and just on faith, shouldn’t it be enough that the prophet has said that we should support marriage as being legally allowed only to members of the opposite sex?

Matt Evans on February 6, 2004 at 4:25 pm

Taylor, please explain the reason you discriminate against people with familial attraction. I trust you only discriminate against people if there are good reasons, and not merely because you do not know them or do not love them.

Brent on February 6, 2004 at 4:28 pm

Taylor, I don’t know how it is that so many people believe that it is “loving one’s neighor” to support them in their sins. Joseph Smith taught that there was no greater act of charity than taking someone by the hand and lifting them out of their sinful state. Now we have people running around saying that it is charitable and loving to treat those in a sinful relationship as married couples. I just don’t understand how that can be. I do remember however reading a quote from Brigham Young wherein he stated that one of his biggest fears for the Saints was that they would take so seriously the admonition to be charitable and Christlike that they would end up tolerating and embracing evil.

Furthermore, and I know I have asked this before, but I truly don’t feel like anyone has given me a good answer, what about the Saviour’s imperitive to follow the prophet? I mean if following the Savior’s imperitives is important, then what about the words of His prophets, both ancient and modern? Strip away all of the other arguments/doubts/etc., and just on faith, shouldn’t it be enough that the prophet has said that we should support marriage as being legally allowed only to members of the opposite sex?

Kaimi on February 6, 2004 at 4:31 pm

And Matt, while everyone is explaining, perhaps you could explain why you are in favor of unattached, more promiscuous gay relationships (which you favor keeping legal) and against state encouragement and support for stable, monogamous gay relationships.

Is it possible that the “gay people have more sex partners” stats that everyone finds so shocking might be attributable to the fact that gay’s aren’t allowed to marry?

Taylor on February 6, 2004 at 4:52 pm

I promised myself that I would stop posting on this issue… but…

Brent,
Our stake presidency just spoke at ward conference two Sunday’s ago and encouraged members of our ward to be thoughful and prayerful on the issue of gay marriage in our state (MA) and to engage in debate and activity on whichever side we think best. Our bishop concurred. I still think that you overstate the prophetic mandate to legally oppose gay marriages.
Again, I am still undecided on this issue. I seem to go back and forth daily. I just wanted to counter the claim which I took offense at that I am somehow brainwashed by the media.

clark goble on February 6, 2004 at 4:59 pm

Kaimi, I think that the general consensus of homosexual partners is that they are doing what all males would do if they could (i.e. if women were more willing). As I recall lesbians don’t have the same statistics. While I think a case could be made that marriage might provide a social stop for male homosexual promiscuity I’m not sure it would real deal with the underlying issues. Further the issue isn’t just marriage but fidelity within marriage. One can, after all, have marriage without being faithful in it. And, as I recall, the statistics in southern Europe for that are rather high.

Brent on February 6, 2004 at 4:59 pm

Kaimi, are you tying your support for same-sex marriage to the renewal of strict fornication, adultery and sodomy laws to prevent unmarried couples (heterosexual and homosexual) from engaging in sexual intercourse?

Simply opposing same-sex marriage is not the same as being “in favor of unattached, more promiscuous gay relationships.” I cannot speak for Matt, but as our positions appear generally similar I can say I am in favor of society promoting abstinence until marriage and marriage being limited to heterosexual couples. Why? Because that is what is best for society and for individuals in society. It’s that whole wickedness never was happiness belief that I have.

As for your stats, why would not being able to marry automatically create an incentive for homosexuals to have more sex partners? It wouldn’t. The studies discussed previously simply show that homosexuals are more promiscuous. Undoubtedly you will say, but we can’t really know this unless we allow gay marriage and then look at the statistics. I simply don’t believe we should be experimenting with the sacred institution of marriage. We should support its current definition and promote a return to societal sexual mores. Not doing so will prompt the continuation of horrific stories that we read about in the news more and more everyday, from rape, out-of-wedlock births, sexually transmitted disease, child molestation, etc.

Brent on February 6, 2004 at 5:06 pm

Taylor, I don’t know what your stake presidency has received in the way of direction from church leaders, or what his personal political views are, or even what exactly he said. All I know is that a member of my ward here in Ohio was contacted by the Church in Salt Lake and asked to garner the support of Church members in Ohio for Ohio’s Defense of Marriage Act. From what Elder Ballard has said recently and from what President Hinckley has said, along with the Proclamation on the Family and the Church’s involvement in California, Hawaii, Alaska and elsewhere, I don’t believe that there can be any real question what is the appropriate position Church members should take on this issue. Again, I wasn’t in your meeting, but if the message was that church members in MA could take a stand in favor of same-sex marriage, then there has been a huge communication breakdown (whether inentional or not) and that is not in keeping with prior actions and statements.

Matt Evans on February 6, 2004 at 5:08 pm

Kaimi, I’m not in favor of gay promiscuity, teenage promiscuity, familial promiscuity, or group promiscuity. I don’t believe marriage is the solution for any of these problems. Do you?

There would probably be a marginal drop in gay promiscuity if gays could marry, among those who now have a few partners a year. But the gay promiscuity problem is epidemic due to the gays who have scores of partners a year, and I don’t believe those with hypersexuality would be monogamous but for the government’s policy on marriage.

Greg Call on February 6, 2004 at 5:17 pm

Brent,
As Clark suggested, to the extent that the promiscuity studies have any validity, it is only with respect to gay males. So its is just plain wrong to say that homosexuals in general are more promiscuous. At most, you can say that gay men are more promiscuous than straight men (and I have problems with that proposition and the conclusions that can be drawn from it, but we’ve gone over that here: http://www.timesandseasons.org/archives/000159.html

Taylor on February 6, 2004 at 5:26 pm

Brent- what is the source for your references to Ballard and Hinckley?

Brent on February 6, 2004 at 5:44 pm

Elder Ballard:

http://www.desnews.com/cn/view/1,1721,380002177,00.html

President Hinckley:

Gordon B. Hinckley, “Why We Do Some of the Things We Do,” Ensign, Nov. 1999, 52
“Some portray legalization of so-called same-sex marriage as a civil right. This is not a matter of civil rights; it is a matter of morality. Others question our constitutional right as a church to raise our voice on an issue that is of critical importance to the future of the family. We believe that defending this sacred institution by working to preserve traditional marriage lies clearly within our religious and constitutional prerogatives. Indeed, we are compelled by our doctrine to speak out.

Nevertheless, and I emphasize this, I wish to say that our opposition to attempts to legalize same-sex marriage should never be interpreted as justification for hatred, intolerance, or abuse of those who profess homosexual tendencies, either individually or as a group. As I said from this pulpit one year ago, our hearts reach out to those who refer to themselves as gays and lesbians. We love and honor them as sons and daughters of God. They are welcome in the Church. It is expected, however, that they follow the same God-given rules of conduct that apply to everyone else, whether single or married.

I commend those of our membership who have voluntarily joined with other like-minded people to defend the sanctity of traditional marriage. As part of a coalition that embraces those of other faiths, you are giving substantially of your means. The money being raised in California has been donated to the coalition by individual members of the Church. You are contributing your time and talents in a cause that in some quarters may not be politically correct but which nevertheless lies at the heart of the Lord’s eternal plan for His children, just as those of many other churches are doing. This is a united effort.”

I couldn’t find a transcript of President Hinckley’s Christmas devotional talk and his talk at last month’s world wide training meeting is not online, but some of his discussion in those talks centered on this issue.

Michelle on February 6, 2004 at 8:43 pm

Kaimi,

While everyone is explaining, perhaps you could explain why you are in favor of state encouragement of gay relationships.

Taylor,

You really should watch less TV.

Kaimi on February 6, 2004 at 8:53 pm

Michelle,

First, on a theoretical level, because I think that my religious judgment should not be a bar to someone else’s non-harmful exercise of their rights.

Second, on a practical level, to minimize harm. The church tells us that homosexual behavior is wrong, and I accept that. But if it’s going to be practiced, I would like it to be done in the least harmful way. I view stable, monogamous gay relationships as better for society than a lot of one-night stands (for a variety of reasons). And so the state should do what it can to encourage such relationships.

(Harm minimization is also the reason I’m in favor of providing clean needles to drug users. And I’ve noticed a considerable difference of opinion between liberals and conservatives on the harm minimization principle).

Dan on February 6, 2004 at 10:40 pm

Has anyone ever tried analogizing the gay marriage issue to a similar one in Mormon history? No, I’m not talking about polygamy, I’m talking about prohibition. As I recall the story, Heber J. Grant specifically asked church members in Utah to vote against ratification of the 21st amendment, which repealed prohibition. They disregarded his counsel, and Utah became the deciding 36th state to ratify the amendment.

Since that time, the church has occasionally taken a specific stand on various proposed changes to Utah’s liquor laws (see the fascinating article at http://www.blackwell-synergy.com/links/doi/10.1046/j.1468-5906.2003.00206.x/abs/ ). However, as far as I can tell, the church doesn’t advocate prohibition anymore, nor does it expect its members to try to use their influence to outlaw alcohol. Rather, the church uses its bully pulpit to encourage its members to abstain from alcohol and warns them and others of the consequences of alcohol abuse.

My point is this: when it became clear that prohibition was dead, the church accepted the reality on the ground and shifted gears to use its influence in a more productive way. The same point may eventually be reached with respect to gay marriage. If the proposed constitutional amendments don’t fly, what then? At some point, fighting gay marriage in Massachusetts might be as quixotic as trying to reinstate prohibition in, say, Milwaukee. I’m not saying we’ve reached that point already, but I think I can already see the church shifting its emphasis away from the “rally the troops” approach of 1996-1999 (Hawai’i and California) to one that uses its political capital more judiciously. I might be wrong, but I think the instruction Taylor heard in stake conference could be the wave of the future when it comes to SSM.

I don’t imagine that church members in Holland would be expected to mount a doomed campaign to re-re-define marriage. The interesting question, then, is this: what are Dutch Mormons (and what might future American Mormons be) expected to undertake with respect to gay marriage? I suppose the answer is something similar to how Milwaukee Mormons treat alcohol–they abstain, teach their children from the revelations and the words of the prophets, help converts and other friends to quit, etc. But they still work and associate with drinkers, and they make up their own minds about how to vote when alcohol issues arise.

Nate Oman on February 6, 2004 at 11:20 pm

One of the odd things that happened in Utah with the liquor laws is that by essentially giving the state a quasi-monopoly on the sale of most forms of hard liquor, the government got into bed with the industry it was supposedly regulating. Utah laws may be “hard” of liquor, but the Utah treasury benefits significantly from it.

Nate Oman on February 6, 2004 at 11:21 pm

One of the odd things that happened in Utah with the liquor laws is that by essentially giving the state a quasi-monopoly on the sale of most forms of hard liquor, the government got into bed with the industry it was supposedly regulating. Utah laws may be “hard” of liquor, but the Utah treasury benefits significantly from it.

Brent on February 7, 2004 at 1:49 am

“The same point may eventually be reached with respect to gay marriage. If the proposed constitutional amendments don’t fly, what then?”

Wouldn’t it be a travesty though if we reach that point because church members fail to heed the prophet’s counsel, as occurred many years ago. My father works at the church office building and has heard through pretty high sources that President Hinckley has been down somewhat lately because of the way the world is heading and because church members just aren’t responding to church counsel. Baptisms are even, retention is still low. If you watched the Christmas devotional and the worldwide training, you could see how concerned he is about the immorality that is running rampant. Apparently he just can’t believe that same-sex marriage is actually making headway. I truly don’t know why church members would choose to support evil over good. I just don’t get it. It gets me down. I can’t imagine how President Hinckley must feel.

Greg Call on February 7, 2004 at 1:49 am

Although it may be odd, Nate, its not particularly uncommon for states to exercise monopoly control over liquor. It seems that 16 states other than Utah have such a system (Washington, Oregon, Idaho, Montana, Utah, South Dakota, Minnesota, Michigan, Ohio, Pennsylvania, Virginia, North Carolina, Maine, New Hampshire, Vermont, Alabama, and Mississippi.)

Greg Call on February 7, 2004 at 2:26 am

Brent, I can certainly understand where you’re coming from. But step back for a minute. 38 states have banned gay marriage. All of the serious presidential contenders are on the record as firmly against gay marriage. In the only state where a court has said it is required under the constitution, there appears to be enough support to amend that constitution. There may even be political support for a Federal amendment.

So it may be that gay marriage will only be allowed for one or two years in one state (and who knows, maybe the court will issue a stay pending the amendment). While we can’t know the butterfly effect MA gay marriages during that year or two will have (and it would raise interesting state comity issues), I think your movement has succeeded quite well in galvanizing public opposition to gay marriage.

brayden on February 7, 2004 at 3:07 am

I agree with Greg. Gay marriage opponents are having much more success at this point than gay marriage supporters. Even the Democratic presidential candidates are firmly pro-civil union and not supportive of gay marriage. If public opinion was highly in favor of legalizing gay marriage, I’m sure you would see more active support among politicians.

From my perspective gay marriage opponents have nothing to fear.

lyle on February 7, 2004 at 4:42 am

Wow…go to NYC for two days and look what you miss.

1. often lawmakers intentionally leave elements vague. Vagueness is thus intentionally open to numerous readings depending upon context. This issue of intentional vagueness seriously undermines the whole project of original intent.

-YES!!! Exactly. Legislative elements left vague are UNCONSTITUTIONAL!!! Constitutional elements maybe different. So…while the project maybe sunk, if we were following a a ‘real’ system of legislation…i.e. where legislators/the people actually voted on an actual project/bill rather than ‘indeterminate’ language that gets tossed/turned by every socio-cultural wave…

2. From my perspective gay marriage opponents have nothing to fear.

-Really? I bet that is what was said Pre-Roe and Pre-Dred Scott too. Tell it to the Church leadership which is spending the Lord’s money to defend marriage and not sully it with either legal or economic benefits that are inherently inimical (even if rather difficult to prove factually/empirically to non-religious folks) to the family and the entire plan of Salvation.

3. My point is this: when it became clear that prohibition was dead, the church accepted the reality on the ground and shifted gears to use its influence in a more productive way.

- (bites tongue) A comparison was made between Prohibition and Abortion/Same-Sex “legalization.” Joseph Smith taught correct principles, given to him by God. If the people disobeyed, and squandered their opportunity to build Zion…and the Saints in Pres. Grant’s time did similarly…let us be warned and not make the SAME mistake.

4. Milwaukee saints still socialize/work with drinkers.

-Yes, and living among others of different beliefs, even as the Savior was friends with/socialized with sinners, publicans, etc…means that we just turn our backs to the baneful effects? No…it means that we highly regulate liquour in Utah, tax it highly…so that those that choose to harm themselves and others have to pay a high price and contribute something back to society, etc.

5. re: Holland.

-I can. They might not have a political candidate to vote for that is pro-Family, but that doesn’t mean they shouldn’t run for office themselves, work to elect moral candidates, etc. Losing is no reason not to try. Of course, if we’re only interested in winning, or looking good to those that don’t agree with our values…we can just moderate our views and go the way of all other Churches…and be a bland non-Restored gospel [says with a smile on his face, and love in his heart for all the wonderful folks who post here and help him understand differing opinions, beliefs, and how others view church/politics, etc].

6. First, on a theoretical level, because I think that my religious judgment should not be a bar to someone else’s non-harmful exercise of their rights.

-Kaimi, the “non-harmful” is the crux of the argument. Homosexual choices impose social, and medical-economical, externalities upon others. Fine, homosexuals have the right to engage in homosexual behavior and the state shouldn’t prohibit that…unless a constitutional amendment was passed (not a bad idea, come to think of it). Second, a ‘private’ right doesn’t give an individual the the ‘public’ right to change the entire social order. So…let’s focus this debate on what has been suggested:

A. i.e. what are the positive externalities create for male-female father-mother two-parent families that makes them the basic building block of society?
B. What are the negative externalities that homosexual relations imposes upon everyone else, including themsleves?

lyle on February 7, 2004 at 5:18 am

Of interest…
http://www.eyre04decision.com/

Clark Goble on February 7, 2004 at 5:59 am

“Legislative elements left vague are UNCONSTITUTIONAL”

What? Exactly where is that in the constitution. I must have missed the part about disallowing intentionally vague language.

Matt Evans on February 7, 2004 at 9:46 am

Brayden, I have no idea what you’re talking about. Those who don’t want marriage redefined have no reason to fear, you say, even though marriage was redefined this week in Massachusetts, and there are gay couples lined up around the country set to challenge the constitutionality of the Defense of Marriage Act?

Greg tried this pacifying line in January, assuring us that gay marriage wasn’t “going to happen”. He was right for 20 days.

I think it’s too late to persuade the frogs to stay calm and enjoy the warm water. Hopefully people aren’t _that_ stupid.

Or are you saying we have no reason to fear because our fears of the harms of redefinition are like fears of Friday the 13th — imaginary?

Brent on February 7, 2004 at 9:50 am

Greg, you calling it “my movement” is exactly what I am talking about as being so exasperating. What happened to the unity of the faith? This isn’t just some trivial legal matter either. I really believe we are dealing with issues that will affect the every facet of our society.

Adam Greenwood on February 7, 2004 at 11:13 am

Greg and others,
‘Our’ movement has everything to fear. We are here among that small minority of the population that knows that gay marriages are wrong, an offense to the very God, and we find ourselves a minority even here. How can ‘we’ fight the rebels when the copperheads outnumber us?

The public support is there, but soft. The opposition to gay marriage is largely founded on the remembered husks of the old morality. It can’t long stand against concentrated assaults. Arrayed against us are the opinion-making elites and the courts. Time is against us, and our own friends are against us. Sometimes I despair.

But God is with us, and if He will not assure the victory, He will assure us glory that we fought. Why not, if you find the evidence uncertain, resolve it in favor of the revelations? If you find the fight distasteful, find the defeat more distasteful. Reflect that the truths you know are true for everyone.

I do not know what else to say. You have fought every argument, and resisted every reason.

Greg Call on February 7, 2004 at 12:19 pm

I certainly did not mean to minimize the concerns of those actively opposing same sex marriage. These are huge issues, and much is in flux. I was just trying to cheer up Brent a bit by pointing out that by all measures, there is overwhelming support for permanently prohibiting same sex marriage. (I only said “your movement” because as I understand Brent was active in pushing for the Ohio amendment.)

Adam Greenwood on February 7, 2004 at 12:35 pm

OK, Greg.

Ta-lor on February 7, 2004 at 2:51 pm

Lyle said:
“Fine, homosexuals have the right to engage in homosexual behavior and the state shouldn’t prohibit that…unless a constitutional amendment was passed (not a bad idea, come to think of it).”

I am glad that Lyle said this. Adam and Brent have both said things similar to this in the past. I must say, this is a huge part of my hesitancy to join the ranks of SSM opponents. I would really rather not ally myself with those whose agenda is really to regulate the sexual behavior of consensual adults. I am extremely reluctant to believe that there are negative externalities of homosexual behavior that are unique to such behavior. And thus, the hypocrisy of it all is so revolting. Though some here have advocated criminalizing fornication, adultery, masturbation, and other sexual sins for the sake of consistency, I somehow doubt the sincerity behind such statements. In my view, heterosexual deviancy is a much greater threat to the traditional family, and the amount of political, emotional, and blogging energy devoted to rectifying these harms is comparatively infinitesimal. I think that if I saw more consideration and respect for homosexuals (frequently SSM opponents here and elsewhere characterize homosexuals as sexual predators, pedophiles, and a social burden), I would be more sympathetic to their supposedly real concerns about the family. I don’t see discrimination against homosexuals as a prerequisite to opposing SSM, but it would be hard to glean that from much of the discussion here. Though I disagree with the morality of homosexuality, I feel compelled to stand with them against prejudice and discrimination, and hope that they would do the same for me as a Mormon. I seems that for many what is really behind the opposition to SSM is prejudice, rather than a real concern for family values. I don’t see this in the official statements of President Hinckley, but many members of the church aren’t listening to the message that closely.

Brent on February 7, 2004 at 3:14 pm

Taylor, Kaimi and other pro-SSM folk. The issue of homosexuality and same-sex marriage has been discussed over and over. I think many rational and doctrinal based arguments have been posited for opposing the same-sex marriage and for establishing the sinfulness of at the very least homosexual acts. I do not believe that I have written and I have not read anything from anyone on this site that evidences any lack of consideration or respect for homosexuals, to the extent such consideration and respect can be given. What is likely viewed as prejudice and discrimination is merely standing up for moral principles. While we have discussed various legal and other social issues in much greater detail than President Hinckley, I do not think that any of what has been said has been inconsistent with President Hinckley’s message. Gospel principles of love, charity, forgiveness, etc. have been and will be shown, but they do not override the principles of teaching and upholding morality. Honestly, on what basis can you possibly claim that what is really behind opposition to SSM is prejudice? What does that even mean? From many discussions with people on this, your position undoubtedly makes it impossible to not be “prejudiced” because the definition usually put forth by the homsexual rights crowd is that any negative views about homosexuality and any opposition to the homosexual rights agenda equals prejudice. Thus there can be no real debate.

Besides even if you think there is something problematic with the position of commentators here and/or other pro-traditional marriage advocates, why not side then with President Hinckley, Elder Ballard and the remaining apostles? Are they also prejudiced and wrong?

Ta-lor on February 7, 2004 at 4:40 pm

Brent,
I am frustrated that you seemingly deliberately ignore what I have just said. I have repeatedly stated that I am not “pro-SSM” as you characterize me. Also, I just said that I don’t see President Hinckley as weilding the same sort of prejudice that others have weilded here. Nor have I ever disputed the sinfulness of homosexual acts. I think that your caveat about respecting homosexuals to “the extent such consideration and respect can be given” is what I see as a problematic statement. Try reading back your statement pretending that it is writen by an evangelical christian, and substitute “Mormon” everytime you say homosexual or same-sex. Perhaps you will see my hesitation to accept your sentiments.
Let me repeat, and I hope that this time I will not be misunderstood…I am sure that there are arguments that are very good ones for preserving the current definition of marriage. However, to the extent that these are mingled with what seems to me moral judgements that are so extreme as to desire to arbitrarily criminalize the sexual behavior of one group of society, I think that they loose their appeal. Perhaps I am just speaking for my own personal preferences, but I have always found arguments more compelling if they honestly consider the other side’s point of view.

Adam Greenwood on February 7, 2004 at 5:27 pm

Taylor,
Mormons are not homosexuals. If you didn’t start from a position of artificial neutrality you’d realize that. Like things can be treated alike, and unlike things unlike.

Second, you do us no favors by claiming that our opposition to gay marriage is just a front for our real agenda of regulating consensual sexual behavior among adults. What, we don’t really care about marriage? You do us no favors by revealing that our disgust with sex outside of marriage is actually only a front for homosexual prejudice that has nothing to say about heterosexuality. What, I wander down to the divorce courts to cheer in the intervals between my condom distribution business? Accusing us of hypocrisy and deceit, you do us no favors.

Taylor, I assure you that you have completely misunderstood us, from beginning to end. You have no more idea of our real motives than the Man on the Moon.

And, oh, the horrors. Opposition to consensual sex. We must be religious bigots or something. We must have some weird fundamentalist ideas about sex outside of marriage. Think of the autonomous Zion of maximized preferences in which humanity could all be living in, if it weren’t for us knights of woeful ignorance.

Brent on February 7, 2004 at 5:29 pm

Ta-lor, it may be we are just talking in circles, but let me also try to clarify a couple of points. First, I still don’t think people here have wielded any prejudice, unless you are talking about opposing same-sex marriage or having moral qualms about homosexuality and its acceptance by society through legal structures.

Second, analogizing homosexuality and Mormonism just doesn’t work. If an evangelical Christian were to make the same statements I made while substituting Mormon for homosexual I am not sure that I would be overly concerned, in light of the fact that we are have been talking about laws involving homosexuality. Some evangelical Christians do harbor negative feeling or prejudice toward Mormons–so what. That is their problem, not mine. Because of the Constitution, such persons are not able to have their prejudice play out in the law. Thus, Mormons can practice their religion, marry, etc. Homosexuality on the other hand enjoys no such Constitutional protection, nor should it. Remember, we supposedly all agree that homosexuality (or at least homosexual acts) is/are sinful and immoral. Being Mormon is not. Thus, we can (and indeed should) promote morality and decency by opposing same-sex marriage, and being extremely wary of other attempts by homosexual rights activists to gain legal and societal approval of their lifestyle. I had to qualify my statement about consideration and respect solely because voicing an opinion that SSM should not be allowed and/or citing valid arguments to support that opinion are deemed by some to show a lack of consideration and respect. I am not willing to show the type of consideration and respect required by the SSM proponents (i.e. accept their arguments and position). I will and have spoken with respect. I attempt to be kind, loving, patient, longsuffering, etc., but some things have to be said. I cannot pretend to understand how difficult it must be for someone struggling with same-gender attraction. Such persons likewise have to struggle with the same things we all do–acceptance, self esteem, etc. on top of this other difficulty. I am not unaware of that. I simply don’t think we serve our fellow man well, by refusing to discuss or support truth because it might make some of our friends and acquaintances uncomfortable.

I do not know what desire exists among commentators here with respect to criminlizing sexual behavior, but to the extent there is any, I would argue that it certainly is not arbitrary. In any event, that is really a moot point, as fornication, adultery and sodomy laws are very unlikely to obtain any societal approval at the present. (Note that I have posted on my blog previously that I think one reason we are in the position to be debating SSM is because so many in society want complete license to engage in sexual activity whenever they want. It thus becomes difficult to argue that there is something immoral about homosexuality when so many are engaging is sexual intercourse and the like outside of wedlock.) I am also not sure by what you mean by “extreme moral judgements”. I thought we had agreed that homosexuality is sinful (i.e. immoral). Again, because we have only been talking about SSM, you cannot claim that anyone is only singling out homosexuals and is not concerned about other problems affecting traditional marriage and the family. I would imagine most here are concerned about no-fault divorce, pornogrophy, adultery, premarital sex and the like, but the issue on the table is SSM. The reason for the emphasis is not an extreme moral judgement or arbitrary singling out. Remember law suits have been brought by homosexual rights advocates to compel society to recognize SSM, to put homosexuals in the BSA, and myriad other areas. They are the ones who have made this a leading issue in our society, not conservatives. I am trying to be honest here. I think everyone else has too. As far as I can gather, no one seems to be hiding any prejudice or ill will toward anyone.

Kathryn Stout on February 7, 2004 at 9:27 pm

The SJC decision was based on equal protection. Read it, before you try to explain what it was based on. Denying marriage rights to individuals who wish to marry someone of the same sex is unconstitutional discrimination based on sex, the same as denying marriage rights to individuals who wish to marry someone of a different race was unconstitutional discrimination based on race. The SJC cited Perez v. Sharp and Loving v. Virginia, both decisions made long before Massachusetts passed the ERA. Those decisions were based on the 14th amendment, and so is this, in addition to many other laws that have revised the three hundred year old common law definition of marriage. The SJC pointed out that marriage has evolved into a gender neutral institution; marriage laws do not define women as legal inferiors or legal nonentities as the common law once did. (Blackstone’s Commentary: Marriage makes man and woman one, and that one is the man. Women lost all legal identity upon marriage, and could not do anything without their husband, though a husband could, without his wife). Those laws have long ago been struck down and changed, most by application of the 14th Amendment. (The federal ERA was defeated, three states short, in 1982). Courts have recognized that the 14th Amendment prohibits sex discrimination–also discrimination based on sexual orientation. The U.S. Supreme Court struck down Colorado’s Amendment 2 based on equal protection.

If we interpreted the Constitution based on the “original intent” of the founding fathers we would still have slavery, since they wrote it into the Constitution. The law is meant to be flexible enough to adapt to changing times. I suppose we are supposed to ban all laws concerning telephones, cars, air travel, computers, and interstate highways–because the founding fathers’ intent did not foresee them? The USA had 13 states when the constitution was ratified.

However the founding fathers did explicitly state: Congress shall make no law concerning the establishment of religion.

If Gordon Hinckley wants to state that gay marriage is a moral issue, bully for him–in his church. But his church has no right to legislate morality for the rest of America. There are over 200 million Americans who are not Mormons, compared to about 5 million who are. Many of us in other churches and synagogues, or free thinkers (like the founding fathers), don’t think too highly of Mormon morality. What’s with the polygamy, the Masonic temples, the cultish death threats, the unquestioning obedience, the
excommunications of anyone who dares to think and speak their mind?? I could go on, but that’s enough. We cherish the freedom of religion in this country–the freedom NOT to follow the Mormon church.

Matt Evans on February 7, 2004 at 9:32 pm

I’m still waiting for someone who is ambivalent about SSM, or thinks opposition to SSM stems from prejudice or animus, to explain the reasons they oppose allowing people born with familial or polyamorous attraction to marry.

Matt Evans on February 7, 2004 at 9:42 pm

Hi Kathryn,

Welcome to Times & Seasons. You seem like a free thinker who’s not afraid to speak her mind.

I won’t go into your perspective on equal protection (the court doesn’t treat gender like race, that’s why gender-distinctive bathrooms are acceptable, whereas race-distinctive bathrooms are not), nor the canard that you can’t legislate morality (all laws legislate morality), nor the strawman arguments against a particular interpretation of the constitution, nor the implication that President Hinckley thinks the Mormon church has a right to legislate morality or anything else (it is the vast majority of your fellow Americans who want to prohibit gay marriage, not just the Hinckley Mormons).

I will, however, invite you to explain the constitutionality of Massachusett’s laws that prohibit those born with familial and polyamorous sexual orientations from marrying.

Kaimi on February 7, 2004 at 9:47 pm

Matt,

I think we’re all bored with that line of reasoning, which you keep bringing up.

A few random thoughts:

-Neither “group attraction” nor “familial attraction” strikes me as a feasible designation.

-Groups, in particular, strike me as highly unstable.

-Let’s keep the group, family, etc. discussion in one thread.

Matt Evans on February 7, 2004 at 10:05 pm

Bored? How can they be bored? They’ve never even addressed it, let alone exhausted the line of reasoning.

The question should be asked of every person who alleges that opposition to gay marriage is based on prejudice, and to everyone who thinks Loving v Virginia is relevant.

Brent on February 7, 2004 at 10:42 pm

Kathryn, just to add to what Matt has already said, I think most of us who have been commenting are familiar with the SJC’s analysis. Indeed, we have been critical of it. It is a joke. None of the court decisions of laws cited by the SJC or by you “revised the three hundred year old common law definition of marriage.” The SJC construed the law in a manner so that it could arrive at the result it wanted. Furthermore, it did so in the most arrogant and condescending way. Rather than apply intermediate scrutiny as is ordinarily done in equal protection cases involving gender, the court applied a rational basis test. The majority said that there are no reasonable or rational reasons for keeping the age old definition of marriage. This is just laughable. Furthermore, homosexuals were not denied the right to marry. They were just denied the right to marry someone of the same sex. Although some courts (few) have viewed sexual orientation as some kind of lesser suspect classification, it has not achieved the same status as gender or race. Again, I am fully aware of what the SJC said and did, I just happen to believe it’s analysis was a complete distortion of the law to achieve a result it wanted.

Additionally, your comments about the Mormon church evidence a complete lack of tolerance that contributes nothing to the debate. Like it or not, as Matt noted, the Mormon church and its members, are only a small portion of the many, many other people (some religious some not) who oppose SSM. Both religious and secular arguments have been posited here. Some were directed at members of the LDS faith who claim to follow President Gordon B. Hinckley as a prophet of God, like unto Moses, Abraham, Noah and others. Some were directed to anyone interested in the issue. Religious people, last time I checked, still had the right to be involved in public debates about legislation in this country. There are other portions of the First Amendment guaranteeing freedom to exercise one’s religion and to speech and assemble as one desires. Whether a person objects to same-sex marriage on religious, moral, psychological, sociological, legal or other grounds, each person has a right to voice their opinion and attempt to persuade others to his or her side.

Kaimi and other bored individuals, Matt has raised a legitimate question. If we take the arguments posited by SSM proponents, on what basis may we deny marriage to any of a myriad of other consensual arrangements? These other arrangements may not strike you as feasible designations, but that is not really an argument, is it. If so, then can I just say that it doesn’t strike me as feasible to designate marriage in any manner other than between a man and a woman.

Kaimi on February 7, 2004 at 11:32 pm

Matt, Brent, et al,

I have responded to Matt, on the appropriate thread. See http://www.timesandseasons.org/archives/000293.html#003416

Taylor on February 9, 2004 at 2:54 pm

Reverend Peter Gomes of Harvard wrote an interesting piece yesterday:
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/02/08/for_massachusetts_a_chance_and_a_choice/

Brent on February 9, 2004 at 3:44 pm

Reverend Gomes raises the same claims all SSM proponents do, none of which are convincing. He analogizes the current situation to racial and gender discrimination without providing any justification for the analogy. Further, his tone is condescending and he belittles the views of those who oppose SSM.

Sci on February 9, 2004 at 4:00 pm

From Rev. Gomes editorial:

“The way to the future is always paved by extending, not restricting, liberties, especially to those who heretofore have been excluded.”

To what logical end? At what point have these liberties gone too far? Is there a balancing force, or should we always pursue more liberties?

Further, this piece is entirely based on the analogy between racial civil rights and sexual orientation. There may be some reasons to believe that the analogy may break down.

Matt Evans on February 9, 2004 at 4:05 pm

Ouch. Why does Gomez have to go devalue my Harvard education like that? Surely there are people Harvard could hire who realize that not everyone who opposed the Warren court’s decision was a racist, and are smart enough to know that selectively looking for past examples when the majority was wrong says nothing about whether the majority is wrong now.

I noticed he didn’t bother to address the constitutionality of Massachusett’s laws that prohibit those born with familial and polyamorous sexual orientations from marrying.

How could he forget that “The way to the future is always paved by extending, not restricting, liberties, especially to those who heretofore have been excluded. The health of a republic may well be determined by its capacity to adapt itself to the extension of its own privileges and responsibilities to those whom it would be easy by custom and conviction to ignore”?

He wrote it just this morning.

Brent on February 9, 2004 at 4:39 pm

The meaning of the term “liberty” has been swallowed by “license”. Gone are any real appreciation for responsibility and good citizenship. Gone are concern for the community. Instead, these have been replaced by elevating each person’s wants and desires into Constitutional rights, regardless of the negative impact such wants and desires on the rest of us.

Kristine on February 9, 2004 at 4:51 pm

Brent, give me a break. How is it going to hurt you or damage the possibility of good citizenship if the gay couple down the street is allowed to marry? They can’t be responsible citizens, or they’ll prevent you from being one? C’mon!

There are plenty of good arguments to make either in support of or against Reverend Gomes’ piece. But spare us the overwrought rhetoric.

And Matt, you’re making everyone question the value of a Harvard education with your relentless nagging about polyamory. (Not to mention with your misspelling of Gomes’ name–didn’t you just read it?)

Matt Evans on February 9, 2004 at 5:06 pm

Thanks for pointing out the mis-spelling, Kristine.

Harvard would not have served me well if I’d been taught to swallow trite rhetoric about liberties and equality without expecting advocates distinguish their “anti-liberty” positions.

According to Gomes logic, people who oppose sibling marriage make company with those who “hanged witches” and “embraced the fugitive slave laws.” You think people who, like myself, relentlessly challenge those denying the demands of liberty and equal justice should be tepid? ;-)

Kristine on February 9, 2004 at 5:12 pm

Matt, it’s in the nature of a 500-word editorial that its author must selectively choose examples for their persuasive value. In the extended dialogue here, we have a chance to lay off the inflammatory rhetoric and be a little more subtle and rigorous. Try it, you might like it!

Brent on February 9, 2004 at 5:55 pm

But, Kristine, the persuasiveness of such examples is lacking when looked at from a logical perspective. Such arguments are only offered to inflame passions, to paint the pro-traditional marriage individuals and groups as bigoted, out-of the mainstream, discriminatory and hateful.

Every point in Gomes piece has been addressed and refuted previously in this thread and others here. As for SSM affecting all of us–how easy do you think it will be to prevent the indoctrination of our children on homosexuality in the public schools if SSM is allowed? How might SSM affect society use of the terms spouse, wife, husband, etc? As to good citizenship, I will use Mosiah as an example. He proposed a new government system designed so that each citizen “might bear his part” in promoting, obeying and upholding the moral laws of the Nephite kingdom. Homosexuality, in my view, is immoral. It should not be given preferred status in the law. America, it was said historically, was great because it was “good.” You can cite, undoubtedly where there were moral failings on the part of American society and America, but we have improved in a good many areas. However, we have been slipping in the area of sexual morality and we see rather dramatic consequences. The proliferation of children out of wedlock, sexually transmitted diseases, deaths, abortion, etc. are all a direct result of this. Society flourishes to the extent societies families flourish. We need our traditional families to bear and raise good responsible children. We should not normalize immoral behavior and expect there to be no additional negative consequences. I am not saying that homosexuals cannot be honest, hardworking or otherwise obey laws, and thus be good citizens, but attempting to force society to accept a new morality, which is nothing more than an old immorality, is not, in my opinion being a good citizen. My “overwrought rhetoric” is just the frustration having to stand up for moral principles, even among those who are supposed to share the same moral principles. It is frustration at seeing, daily, a lifestyle that I view as immoral thrust upon society in every area, in movies, TV, music, schools, government, in the courts, etc. I still stand by my statement that people are more concerned today with their own rights than they are on doing what is right and good.

clark goble on February 9, 2004 at 6:00 pm

“However, we have been slipping in the area of sexual morality and we see rather dramatic consequences. The proliferation of children out of wedlock, sexually transmitted diseases, deaths, abortion, etc. are all a direct result of this.”

Brent, while I think we are increased in those compared to say the 50′s, we have been decreasing in all those figures relative to the early 90′s. (Actually I think there has been a recent resurgence in certain kind of STDs – but all the others are down)

Tied into my earlier comments on transgressions vs. sins, I note that prior to latex condemns and birth control pills, the consequences of sex were far more significant. So I halfway wonder if, in the 1890′s, the relative sexual activity of America was due to righteousness or fear. (One could say the same in the 90′s due to AIDS, but I think people are becoming far more responsible after the excesses of the 70′s)

Matt Evans on February 9, 2004 at 6:31 pm

Kristine, I deliberately didn’t respond in kind to your ad hominem comment that questioned my education. What did you feel was inflammatory about my response?

Brent on February 9, 2004 at 6:51 pm

Clark, I might dispute somewhat your claim that “people are becoming far more responsible after the excesses of the 70′s.” I would argue that elicit sexual activity itself is irresponsible, whether protected or not. The emphasis on sex in society is ridiculous. Similuated orgasms are used to sell shampoo. Janet Jackson’s top gets ripped off during the Super Bowl. Sexual immorality is more rampant today than at any time in our nation’s history. Some of the negative consequences I didn’t mention might be oversexualization of our children. Two 11 year old boys raped a 10 year old girl last week in an elementary school bathroom. A stepfather impregnated his 8 year old step daughter. 7th and 8th grade girls in Canada are engaging in oral sex as a rite of passage. I could go on and on. To me being responsible in this area is not merely finding ways to minimize the negative consequences of what is irresponsible behavior. There are no condoms that shield one’s spirit from the harm caused by immorality. There are no pills that prevent or control sexual addiction or emotional bankruptcy caused by illicit sex.

Kristine on February 9, 2004 at 6:58 pm

Brent, the examples you mention are ghastly, but what do they have to do with gay marriage?

clark goble on February 9, 2004 at 7:05 pm

Brent, certainly I’m opposed to the examples you gave. However the statistics on pre-marital sex by teenagers shows that the message of abstinence is working.

http://www.heritage.org/Research/Family/em872.cfm

The declining out of wedlock birth rate is due to abstinence and not simply condom use.

I’m also leery of saying that immorality is more rampant today than at any other period. From what I’ve read of American heritage, the era just before the second great awakening was rather liscenious. Also even in the latter 19th century, while public discourse was far, far more conservative, the sexualization of children was far more common.

Kristine on February 9, 2004 at 7:57 pm

Matt, in your response you equated gay marriage with marriage to one’s siblings AGAIN. You insult everyone’s intelligence by continuing to bring this up–it was (a month ago) a slightly clever bit of satire, with a very strained legal point. We’re done with it. People have repeatedly told you that it’s not worth discussing anymore, and you won’t drop it. That’s inflammatory. (Not to mention sophomoric, annoying, and irksome).

brayden on February 9, 2004 at 8:19 pm

I’m not sure that many sexologists or social scientists would entirely agree with Brent’s characterization of today’s morality crisis. Putting Mormon morality aside for a moment, sexuality among teens actually appears to be on the decline. The link provided by Clark is just one study that seems to suggest that this is a trend. Just because anecdotal evidence thrives in the press does not mean that more teens are having sex now than they were ten years ago.

I think the real difference may be in the way sex is treated in public in the modern day. In the Victorian era, sexuality was largely a private matter. I guess I should say that sex between a husband and wife was a private matter. But that doesn’t mean that men weren’t having sex outside of marriage. Prostitution (the world’s oldest profession ;)) was much more rampant in the nineteenth century than it is today. Proper Victorian women tended to be undereducated with regards to sex. Many did not understand the basic workings of reproduction. From an economists’ perspective, there was clearly information asymmetry in sexual relationships (unless we’re talking about prostitution). This meant that men were more capable of deviating sexually without getting the wife’s attention.

My point is that it is not a fact that sexual immorality is worse today than it ever has been. If you think otherwise, I’d like to see your evidence.

greenfrog on February 9, 2004 at 8:31 pm

So…let’s focus this debate on what has been suggested:

A. i.e. what are the positive externalities create for male-female father-mother two-parent families that makes them the basic building block of society?
B. What are the negative externalities that homosexual relations imposes upon everyone else, including themsleves?
************

These are the questions one would pose if one were looking to write a brief in opposition to same sex marriage.

It seems to me that if one were interested in understanding the impact of same sex marriage, the questions would be reformulated to something like this:

A. What are the positive and negative externalities created by male-female father-mother two-parent families?
B. What are the positive and negative externalities created by male-male or female-female two-parent families?
C. What positive or negative effect, if any, would allowing same sex marriage have on society as a whole? On homosexuals? On heterosexuals?
D. What positive or negative impact, if any, would allowing same sex marriage have on familial stability?

Asking these questions would allow one to understand more about the effect of SSM. Answering the entirely one-sided questions posed earlier in this discussion thread would not advance knowledge, but only advocacy. And candidly, advocacy that disregards effective countervailing arguments tends to be pretty ineffectual advocacy.

clarkgoble on February 9, 2004 at 8:35 pm

Bayden, perhaps you could comment on this. But I wonder if cries of immorality in the community reflect *not* actual measurements in the nation as a whole, but changes in the communities of the white middle class.

i.e. it may well be that the nation as a whole is improving, but the communities middle class Christians find themselves in are getting worse… This may lead to a myopia of how we judge events.

Note that I’m not saying this is the case, because clearly in certain minority communities there was a breakdown of the family with (in my mind) huge social effects. But from what I read of 19th century lower class society, it was far worse than it is now. I’m just not sure how to quantify it so as to be able to make a judgment.

I also wonder how 18th century America viewed such matters. I’ve been reading the Franklin biography and it seems like he and many founding fathers were extremely sexually active and that the community tolerated it in a fashion that they didn’t merely 100 years later – mainly due to the second religious awakening I mentioned.

Brent on February 9, 2004 at 8:37 pm

Let me see if I can answer your question to me and try to address your comment to Matt at the same time. All in the three minutes my wife has alloted to me prior to FHE. First, I think the examples I gave, homosexuality and SSM are all interrelated, and I was responding to the claim that people are more “responsible” in their sexual behavior today than in the past. All of these things are part of the elimination of “sex only within marriage” as THE appropriate sexual societal more. Homosexuality is nothing more than someone wanting to express himself or herself sexually with a member of the same sex, which expression is immoral and contrary to God’s intended purposes for sex. What is more, we are now debating whether to grant special rights to such persons because of such immoral choice, based on this form of sexual dysfunction. We have people identifying themselves solely by their sexuality. I just don’t understand how we have fallen this far. In light of what the Lord has revealed about the seriousness of sexual sin, we should work to counter sexual immorality in all its forms. We see the abuse and misuse of the procreative power God gave to men and women to enable them to participate with the Divine in the creation of human life. We see this in the homosexual rights arena and elsewhere. If we continue to divorce ourselves from the idea that sex has an appropriate role only within the bonds of marriage (man and woman) then we will continue to see inppropriate sexual activity in all of its forms. How can we tell young people not to do what they think feels “natural” when we have an entire segment of society basing claims to Constitutional rights based on what they claim is “natural”?

Which leads me to a defense of Matt. His repeated questioning is due to the fact that everyone has dismissed his questions out of hand without an adequate response. (And yes I know Kaimi and others have given some responses.) What no one has dealt with is the real possibility that other sexual orientations may exist, especially due to the large amount of self selection inherent in such matters. If the APA and others got behind people with familial attraction and classified them as having a special sexual orientation, and if well paid lobbying groups formed around such an orientation, there is no real difference between what the homosexual rights groups say and what familial orientation rights people would say. I don’t believe Matt is simply being inflammatory, sophmoric, annoying or irksome. Instead he is identifying where our society will head once we eliminate God’s standard for sexual conduct as the guiding principle for a good, decent and civilized society.

clark goble on February 9, 2004 at 9:39 pm

Actually I thought Matt had an excellent point. However it only makes sense in a kind of strict legal constructivist framework. If the court looks at context (as it almost always does) then it’ll see a difference between sibling marriage from homosexual marriage. But I’m no lawyer and I may just be cynical after reading too much Holmes this weekend.

The other issue is, that unlike gay marriage or polygamy, incestuous marriages aren’t likely to be appearing before the court. There is still *far* more societal pressure that would keep such people from “coming out.”

But I think Matt’s point is well met.

The problem is that our views of “equal rights” have certainly changed and I’m not sure there is a way to be consistent with our current views and eventually avoid the problems Matt brings up. Short of a constitutional ammendment. And I have my doubts that is achievable.

brayden on February 9, 2004 at 10:53 pm

Clark, You may be right that sexual freedom existed to a greater degree among the lower-class throughout the history of the U.S. and only recently has promiscuity spread into the middle-class. A couple of things make me question that interpretation though. The first is, as you mentioned, there was clearly a great deal of permissiveness for many in the middle-class as evidenced by Franklin’s sexual exploits. Curiously, he seems to treat his disregard for chastity as a trivial thing. It makes me wonder what kind of parties the founding fathers had after drafting important documents.

The second is that the upper and middle class in Europe seemed to be much more open about their sexuality than those in the U.S. Are we to assume that Europe had extremely different moral standards? Perhaps.

Another interpretation, and one that I favor, is that there was always a great deal of promiscuity/marital infidelity in the U.S. but the strong Puritan strain in U.S. culture caused people to deal with these behaviors privately rather than publicly. Sexual promiscuity was fine as long as you didn’t flaunt it in front of your neighbors and preacher.

This is an interpretation and purely speculative. The facts though seem to suggest that the thing that has changed the most in the post-60′s U.S. is that sex is now more open to public debate and discussion. I’m not saying that pre-marital sexual activity hasn’t increased some (clearly it has – probably due to the tendency for young people to postpone marriage), but we may drastically over-estimate those trends and attribute too much blame to a depreciation of morality.

Matt Evans on February 10, 2004 at 12:54 am

Hi Kristine, I’m sorry I irritated you by asking you to explain why you oppose polyamory and sibling marriage. It wasn’t intended as clever satire, but from a genuine desire to know the reason you and others who are supportive or ambivalent about gay marriage oppose letting consenting adults marry who they want to. I’m still not sure why you haven’t explained your position.

When you refuse to answer the question, I assume it’s because you don’t have a good answer. That reinforces my presumption that it is a good question to ask.

For people who are still interested in the debate about alternative forms of marriage, William Saletan engaged the issue at Slate.

On cousin couples:
http://slate.msn.com/?id=2064227

On incestuous couples:
http://slate.msn.com/?id=2081904

More on incestuous couples:
http://slate.msn.com/id/2082075/

The advice columnist from CousinCouples.com responds to a “married” half-sibling couple here:
http://cousincouples.com/ask/152.htm

It’s interesting to note that gays distance themselves from cousin couples who distance themselves from from sibling couples, while every group down the chain claims to be analogous. Given the trend, most interracial couples probably oppose gay marriage, too.

lyle on February 10, 2004 at 1:09 am

Hm…So, Matt…what does the Church think of these other relationship types?

I noted the following on one of these sites:

Isaac married Rebekkah, his first cousin once removed. Genesis24:12-51
Jacob married two of his cousins , Rachel & Leah. I love this story! Genesis chapters 28-29)
Zelophehad’s five orphaned daughters were commanded by God to marry cousins. Numbers 36
Eleazar’s daughters each married first cousins, as they were instructed. I Chronicles 23:22
In the 18th chapter of Leviticus, the Bible provides a lengthy list of forbidden relationships. These laws are the scriptural definition of sexual impurity. Not one mention of cousins, of any degree, is made.

Matt Evans on February 10, 2004 at 1:19 am

I don’t know that the church opposes cousin marriages. Besides those you mention, Lehi’s and Noah’s grandchildren would have all married cousins, and of course Adam and Eve’s children presumably married siblings!

If you go to http://www.cousincouples.com/index.shtml?./pages/states.htm you will see that quite a few states allow cousins to marry. Utah allows cousins to marry if they prove they can’t bear children.

Brent on February 10, 2004 at 9:54 am

Clark and Brayden, I am not sure Franklin was as promiscuous as you suggest, or that he viewed chastity as a trivial thing. There is also no reason to suppose that, even if Franklin was promiscuous that such promiscuity was common among his peers. Washington was devout to Martha. His example influenced LaFayette who was ridiculed by his French peers for not having a mistress. Your point, however, about he private nature of promiscuity historically is the point that I was making generally. There always has been sexual immorality, but today it seems that it is celebrated in ways not even possible in the past. TV, movies, the internet open up new possibilities in flaunting the immoral and introducing our children to things previously only dealt with in private. An entire generation was exposed to oral sex by a sitting U.S. president. I would say times have changed.

Kristine on February 10, 2004 at 10:35 am

Matt, in theory I don’t oppose letting consenting adults marry whomever they want to, in the absence of some evidence that such marriages will harm children.

Sibling marriage has a very high yuck factor–I’ve heard anthropologists suggest that this is because it’s evolutionarily disadvantageous to mate with a sibling. Cousin marriage might also be worth prohibiting on grounds of the genetic problems that result; it might not. Besides demonstrable harm to children or a significant increase of genetic defects in the offspring of certain marriages, it’s hard for me to see a compelling state interest in regulating marriages between consenting adults.

I think it’s perfectly reasonable for the state to limit the number of people it will extend marriage benefits to, so that group marriage, or even simple polygyny or polyandry could be prohibited on grounds of economic fairness (or some tiered system could be set up so that one can claim only one spouse for tax or insurance purposes, while subsequent spouses can be legal but without state-provided benefits).

In short, society has an interest in stable family units that are good to children. The state shouldn’t have much interest in the gender composition of those families.

And yes, before you ask, I think gay couples can be great parents. Heterosexuality just isn’t very high on the list of necessary parenting skills. I’m reasonably up to date on the sociological data that exists on children raised by gay parents, and I see no evidence that they’re on the whole worse off than children raised by heterosexual parents, and there’s some evidence that gay parents, who have to go through so many hoops to become parents, are likely to be highly committed and thoughtful parents. However, I confess that my opinion is based more on anecdotal experience than on statistical proofs, which Brayden is undoubtedly more qualified to discuss.

I haven’t said this up to now because I can easily envision the ensuing furor, and I don’t really want to participate in it.

Brent on February 10, 2004 at 10:53 am

Just two questions:

1. Do same-sex couples provide a child with both a mother and a father?

2. Do same-sex couples teach their children that sex and marriage are to be confined to marriage with someone of the opposite gender?

The answer to both of those questions is no. I would argue that that is demonstrable harm. Thus, heterosexuality is in fact a necessary component of good parenting (although I wouldn’t call it a skill).

Furthermore, from the reports I have read, there is not a lot of good research on same-sex parenting, but what is known is that children in such households show a greater propensity to experiment in homosexuality and to be more sexually active generally–also two demonstrable harms in my book. Also, ordinarily we don’t make decisions based on whether something will cause demonstrable harm to children. Instead the legal question is generally what is in a child’s best interests. Looking at the issue from that perspective, the best place for a child is to be raised in a home with two parents (mother and father) in a stable environment. We should do what is best for children, and that is to support and hold up traditional marriage as the societal ideal.

Matt Evans on February 10, 2004 at 11:58 am

Thanks Kristine. I won’t address your argument substantively because you’re not interested in pursuing it.

But two quick points:

First, it’s important for people to see that if we don’t hold the line at traditional marriage, the line really will slide down the slippery slope. Sibling marriages and polyamorous marriages will follow gay marriage within a matter of years (I think the reasons you state for your hesitation on group marriage are easily surmountable).

And once marriage can mean basically anything, it will ultimately mean nothing.

Second, I’m not sure why you’d accept the yuck-factor as a principle for prohibitin sibling marriage since you probably deny the factor’s validity as a basis for prohibiting gay marriage. Further, the fact that 24% of married couples in Ptolemaic Egypt were siblings suggests that our yuck-factor is at least partly socially constructed. http://www.touregypt.net/historicalessays/lifeinEgypt8.htm

(Additionally, whereas most people show sexual olfactory revulsion to siblings, just as they do members of the same sex, it is likely that some people are sexually olfactory *attracted* to siblings, just as some people are members of the same sex. This is why I believe there’s probably a genetic component to familial attraction — the normal olfactory revulsion is “backwards”.)

clark on February 10, 2004 at 1:18 pm

Matt, my understanding was the Washington had a reputation as the “Stalion of the Ptomic” because of his sexual escapades.

The biography of Franklin seemed to suggest that what he did wasn’t that different from his peers. What seemed to have limited him in his youth was his lack of money. However clearly at the same time there were many Puritans and religious people around. It seemed an era with a similar polarization as today.

Brent on February 10, 2004 at 1:41 pm

Clark, I have read several biographies of Washington and nothing I have read suggests he was anything other than a sexually moral man. Indeed, most of the founders were. I have also read conflicting reports about Franklin. Over the years there has been a good deal of historical revisionism, a good amount of which took place or was brought out during Clinton’s impeachment scandal to try to provide a air of legitimacy to what Clinton did with Ms. Lewinsky.

clark goble on February 10, 2004 at 1:53 pm

I did some checking and it appears you are right. That appears to be some revisionism to defend Clinton. Indeed one book mentioned how Washington broke with the tradition of the time and didn’t take a mistress when his wife “began to sag.” However, to the discussion at hand, what is interesting is that Washington was defended as being unusual for the times…

I confess that I’m simply not well enough versed in the history of the times to be able to establish what the sexual mores were like. Is there a particular study well thought of that discusses this? Certainly violence, racism and most other banes of society were greater. I’m curious about sexual mores.

Nate Oman on February 10, 2004 at 3:59 pm

“of course Adam and Eve’s children presumably married siblings!”

Matt: I would not so blithly dismiss the possiblity of pre-Adamites ;->…

Kristine on February 10, 2004 at 5:25 pm

Matt–yup, I’ll be Exhibit A of your evil liberals sliding down the slippery slope argument.

clark goble on February 10, 2004 at 5:29 pm

Matt, you wrote “And once marriage can mean basically anything, it will ultimately mean nothing.” I’m not sure that is a fair comment though. For instance to *me* it will always mean the same thing. I’m sure it will to most religious people. Further marriage, even in your slipperly slope worry, will still entail a kind of commitment and joint entity.

That’s not to say that I way this expansion of the meaning of marriage. I don’t and I do think it will have a negative effect on society. But I don’t think it will mean the end of marriage. That seems a bit too much hyperbole.

Matt J on February 10, 2004 at 6:14 pm

“1. Do same-sex couples provide a child with both a mother and a father?

2. Do same-sex couples teach their children that sex and marriage are to be confined to marriage with someone of the opposite gender?

The answer to both of those questions is no.”

I would agree with the answers, but I cannot seriously take it as an argument against same-sex marriage when these same litmus tests fail in a large percentage of heterosexual marriages (single-parent families and families with sexual teachings different than my own). Do we really want the government to only allow marriages that fulfill these two points? Maybe the slippery slope of doing the best for children would lead us to only allow heterosexual non-smoking even-tempered gainfully-employed college graduates to get married?

(Actually these questions are aimed more at homosexual couples adopting than at same-sex marriage, although they’re not unrelated.)

On a related point, on my way to work yesterday I listened to a morning radio show discussing same-sex marriage. They were asking people opposed to it to call in to explain why they want to ‘force’ their views on others. Needless to say, the callers were pretty shallow “That’s what marriage means” and “It’s a religious institution so religions should define the meaning” and they got ridiculed. It was embarrassing really. I longed for more thoughtful arguments along the lines I’ve seen here.

Brent on February 10, 2004 at 6:19 pm

But Clark, if marriage means, after SSM and the slippery slope come into play, just a “kind of commitment and joint entity” between two or more persons, have we not ended marriage as we know it. No more will marriage be “the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family.”

clark goble on February 10, 2004 at 6:37 pm

Brent, doesn’t that entail a view of universalism? I mean just because some see it that way surely not all will!

Put it an other way. Who will view marriages that way? After all the meaning of terms is defined socially. And attempt to control their redefinition almost always fail. That’s not to say that terms are static. Far from it. Simply that atempts to control the fail due to the way connotation controls linguistic evolution.

Will the meaning change? Certainly somewhat. But then I think that the meaning of marriage has changed. The meaning of marriage in a victorian context is quite different than the meaning in the 90′s which is quite different from it in a Mormon context.

I think that the meaning will change, in the wider public arena, for the negative. I’m just extremely doubtful it will change as much as some suggest.

Kaimi on February 11, 2004 at 3:49 pm

I have always been a little puzzled by the assertion that allowing gays to marry will damage “the institution of marriage.” Umm, what exactly is this “institution”? How exactly is it related to actual marriages?

If gay marriage becomes legal tomorrow, I won’t say to myself,

“Wow, gay people can marry. I guess that means I will go cheat on my wife.”

In fact, any legal determination about whether gay people can or cannot marry will have no perceivable effect on my marriage. None whatsoever. And I have a hard time thinking it will have an effect on anyone’s marriage. Come on, people, marriage is a covenent between two people — it doesn’t depend on politics, or law, or sports scores. So “marriage is under attack” — well, who exactly are the people whose marriages apparently depend on the inability of gays to marry (and how messed up of a life is that)?

Matt Evans on February 11, 2004 at 4:40 pm

Kaimi, you and I didn’t just wake up one day and decide to get married. We’d been raised our whole lives with the expectation that we will one day get married. You received that signal from the church and the culture. The culture is drifting from the church on the significance of marriage already — the number of out-of-wedlock births show that marriage isn’t as essential as it once was. I fear that as marriage is shown to be a social construction — something men can alter and modify as they see fit — it will lose some of the unquestioned allegiance it’s had for generations. If gay marriage passes, it won’t be the last time the definition will be modified to satisfy an interest group. (There are lots of groups who want to redefine marriage.) Eventually government will get out of the marriage business altogether — what business does government have regulating consensual romances with a default template? That will further damage the institution of marriage, creating more unmarried “families” and placing an even higher percentage of children in less-than-ideal circumstances.

Greg Call on February 11, 2004 at 4:49 pm

Matt,
Do you think having civil unions, but not gay marriage, will prevent these problems, or just slow the trend?

Kaimi on February 11, 2004 at 4:51 pm

Matt,

Who cares what the government thinks of my marriage? I didn’t get married to get social security benefits. Some people do, and I don’t see that as a good thing.

If the government chose not to recognize any marriages, that would have no effect on my decision to get married and stay married. Would it affect you? (I hope not!). And if there are people who would not get married without government approval, I’m don’t see why they need to be married at all — it’s clearly not a very important issue for them.

(Remember, the church has a lengthy history of diverging from government-recognized marriage rules.)

The government can call marriage whatever it wants to. I will treat my marriage the same; the church will teach marriage the same, and life will go on.

clarkgoble on February 11, 2004 at 5:50 pm

Kaimi, the issue is less what people like you think than how people who are perhaps more on the borderline think.

I think when people ask “how does it affect me” they are thinking of it in purely legal terms. However the opposition really has very little to do with the legal influences but the semantic influences.

It would be akin to if the Congress passed a law stating that Mormons are stupid and ignorant. Legally it would have no effect on Mormons. However the effects of the words would have a societal effect.

Kaimi on February 11, 2004 at 6:00 pm

Clark,

I realize that there may be some people whose conception of marriage is sufficiently messed-up that they will run out screaming, saying,

“Oh no!! Gay people can marry!! I had previously planned to be a married, productive member of society, and raise a strong, healthy family, but due to this unexpected development, I will now embark on a life of hedonism and sloth.”

And they may even be dumb enough, or misguided enough, to actually make that change.

Let ‘em. If their belief in marriage is that weak, they aren’t doing the beloved institution any good anyway.

Kaimi on February 11, 2004 at 8:37 pm

As a recent news story points out, the Massachusetts legislature considered a constitutional amendment prohibiting gay marriage two years ago.

The proposal did not pass.

See http://news.yahoo.com/news?tmpl=story2&cid=694&u=/ap/20040211/ap_on_el_pr/kerry_gay_marriage_2&printer=1

clarkgoble on February 11, 2004 at 8:43 pm

Kaimi, the issue is less people consciously thinking like that. I agree that is ludicrous. However clearly these things can have a subconscious effect on how people view marriage and relationships. I recognize not everyone thinks this is significant. But clearly many do.

Exactly how to test the theory empirically is unclear. There are questions about say northern Europe. But as I mentioned those comparisons (or at least the ones I’ve read) have been flawed by a lack of a control measure.

lyle on February 15, 2004 at 5:16 am

Kaimi:

I recently took my two FHE/God children (Kevin 14, Salina 12) to a same-sex marriage debate sponsored at UPenn. At one point, fairly early on…lol, Salina said:

Salina: This is boring! How long do we have to say?

Lyle: Salina, will it be boring in 15-25 years when you have a little girl who comes home from school crying because: (a) another little girl at school was trying to kiss her/suggest inappropriate moral-physical actions…or (b) she is made fun of by all the other kids who have 2 “moms” or 2 “dads” because your little child has 1 mom and 1 dad? What will you say when (s)he asks: “Mommie, how come I don’t have two mommie’s like suzie? Can we get another mommie?”

Point: Salina got the message and afterwords, asked people leaving the debate to sign the United Families International Petition for more info/to support a federal constitutional marriage amendment, telling to the (mostly pro-gay supporters) people leaving:

Salina: “hi. will you please sign this petition so that kids can grow up in families with one mom and one dad?”

punchline: No one was rude or mean to Salina. A few even signed the petition. The Spirit was there like wildfire :)

Kaimi on February 15, 2004 at 11:19 am

Lyle,

Neither example works.

If a girl is trying to kiss her or be inappropriate, she should treat it the same way as if a boy is trying to kiss her or be inappropriate. If it’s not someone she approves of, she can and should say NO. (Come on — this is obvious).

As for teasing because everyone else is being raised by same-sex couples, that’s not supported by the statistics. Homosexuals are what, 10% of the population? Again — come on, let’s be serious here.

lyle on February 15, 2004 at 1:16 pm

Kaimi:

Come on — this is obvious.

Come on –, let’s be serious here.

Let’s not poison the well. Regardless of agreement or non-, an individuals fears and hopes for their children, are their own. Disagree as you will.

I for one don’t think the solution to societal approval/incentivization of immoral behavior nor current statistical trends mean that “neither example works.” They do for me. I do appreciate your partial solution to the first example though. Thanks.

Matt Evans on February 16, 2004 at 12:42 am

Kaimi,

Shouldn’t Lyle be concerned about the parallel you see between gay marriage and inter-racial marriage?

People who oppose inter-racial marriage today are ridiculed as being ignorant fascists. Shouldn’t Lyle worry that he and his children will be viewed as ignorant fascists 30 years after gay marriage is legalized?

Which churches that refuse to perform or recognize inter-racial marriages today do you respect? Which churches that refuse to perform or recognize gay marriages in 2030 will you respect?

Kaimi on February 16, 2004 at 2:01 am

Matt,

Doesn’t work. Lyle’s example was of a child being teased because she did not have same-sex parents.

I might disagree with a church that won’t perform interracial marriages. But I don’t believe anyone is teased because their parents aren’t interracial.

SSM supporters, like proponents of interracial marriage, don’t believe that everyone should do it their way — they just want the freedom to do that themselves.

Matt Evans on February 16, 2004 at 9:27 am

Kaimi,

I realize that my example wasn’t Lyle’s example.

I’m asking if, as you’ve asserted, gay marriage and inter-racial marriage are parallel issues, how Lyle and the church should anticipate being viewed 30 years after gay marriage is accepted.

I’m not saying that people will be ridiculed for having heterosexual marriages, any more than they are today for having intra-racial marriages. I’m noting that churches that refuse to perform or recognize inter-racial marriages today are social pariahs and, if you’re right on the precedential relevance of inter-racial marriage, then Mormons can expect pariah status once churches that refuse to perform or recognize gay marriages are viewed the way those that refuse inter-racial marriages are now. For people who care about how the church is perceived by society, this is worrisome, and causes them to lament that people are closing their eyes to the status/action distinction.

Brent on February 16, 2004 at 9:33 am

Matt, you raise a good point. You also highlight a very real possibility if not likelihood. President Hinckley has indicated that we are not going to change our stand on this and other important moral issues, because they are the Lord’s standards.

Kaimi, if and when the Church and its members are relegated to pariah status, will you and others who appear to be questioning the Church’s public stance now stand by the Church when it is even more difficult to do so? I also wonder whether nonmember visitors to this site are getting the impression that same-sex marriage is a matter of great debate within our church, when it really isn’t from both an institutional perspective and from the likely views of most members.

Kaimi on February 16, 2004 at 10:34 am

Brent,

First, if the church is relegated to pariah status, my thoughts will be the same. So what? I don’t attend church because it’s what all the cool kids are doing. And the church has never had a problem taking stances that made us pariahs. Polygamy, anyone?

Second, same-sex marriage seems unlikely to ever attain consensus acceptance. At best, it might become as accepted as abortion is today — accepted by a large segment of the populace, and opposed by a large segment of the populace.

And third, I’m a bit annoyed at your statement and at the implication that anything we say in public should be designed to attract non-members to the church. I’m really not worried about the impression that anyone (non-member, other) gets from our site; if someone wants want to learn the discussions, they can contact the missionaries. This site has been (and I believe, will contibue to be) a forum for discussing issues that matter to the bloggers and commenters. We as members will lose the ability to communicate fully, and properly discuss some of these issues, if we’re looking over our shoulders and afraid to say anything that could be misinterpreted by a non-member.

Chris R on February 16, 2004 at 10:48 am

Already, in some ways, I know many non-members who do believe the church is behind the times. I think Matt’s observation is very perceptible and worth a serious discussion. Surely, though, we are taught that we will be rewarded for standing up for what is right despite what others think.

Remember, though, it was only a relative short time ago that all members became eligible for all temple ordinances. Would the church be “wrong” (for lack of a better term) before the revelation?

However, there remains the question of what is right for us should be imposed on society-at-large. Should individuals be able to exercise their agency and live lives without civil constraints? Or, should SSM (not homosexual relations, since that has been decided [Lawrence v Texas]),be placed in the same category as murder as an unlawful exercise of free will? I fully recognize that this example is not the best comparison of how society enforces morals, because for many proponents of SSM, the issue is about who receives benefits, not a fear of imprisonment.

The question remains as to what category civil government should tolerate same sex relations. I aver same sex relations is different than crimes against others in society. Perhaps I am too much of a libertarian, but crimes against others are different to me than “victimless crimes” (again for the lack of a better term).

lyle on February 16, 2004 at 11:31 am

Ok: So…i’ve replicated the Brent/Kaimi communication in mine to Chris as best as I can.
Point: Can we pleazzzzz all credit/accept others arguments/statements as being sincere and coming from the best possible light? i.e. as in accord with the best practices of a faithful saint?
sum:
1. Let’s credit others arguments with sincerity and as legitimate personal statements and or questions.
2. Let’s not jump to conclusions about what others say…maybe they did ‘say’ what we thought…maybe not.
3. Thanks for y’alls patience with me. I really really enjoy learning here. I have been influenced and learned from the posts of others here…especially those with views that I don’t initially agree with. Thank you.

Brent Said:

I also wonder whether nonmember visitors to this site are getting the impression that same-sex marriage is a matter of great debate within our church, when it really isn’t from both an institutional perspective and from the likely views of most members.

Kaimi heard:
I’m a bit annoyed at your statement and at the implication that anything we say in public should be designed to attract non-members to the church. I’m really not worried about the impression that anyone (non-member, other) gets from our site;

Chris said:
Perhaps I am too much of a libertarian, but crimes against others are different to me than “victimless crimes”.

Lyle says:
I’m a libertarian too; yet my political predilictions don’t serve as a touchstone for writing off society.

ATTN: Communitarians/Liberals on this site…um…where is the in-depth analysis on society as a whole re: victimless crimes. As I’ve mentioned before, this is really an argument about externalities, and what type of evidence and arguments are accepted to prove the existence of external costs/crimes imposed upon others by the immoral actions of the individual.

Matt Evans on February 16, 2004 at 12:48 pm

Kaimi,

Why should we look to abortion to see how churches who refuse gay marriages will perceived if it’s inter-racial marriage that’s analogous to gay marriage?

Kaimi on February 16, 2004 at 3:29 pm

Lyle, Brent,

Sorry if I’m a little grumpy. Long hours lately and little sleep (sigh).

Matt,

The analog to interracial marriage is far from perfect. I think the closest analog in terms of how it will be accepted (or not) by society may be abortion. But maybe I’m wrong.

Brent on February 16, 2004 at 3:43 pm

Kaimi, I understand how that goes. Throw on a little stress and sparks can fly. (I am speaking of myself–many late nights, busy days, getting up with a baby, and trying to prepare for another bar exam.) No offense was taken. I hope you, and anyone else for that matter, knows that I intend no offense in any of the comments I have made and will make in the future, even though I am aware that my more absolutist (black/white) approach to things may ruffle feathers from time to time. We don’t see eye to eye on several matters, but I do generally enjoy the discussion and debate.

Matt Evans on February 17, 2004 at 9:49 pm

Kaimi,

You’ve intrigued me. In what ways are inter-racial marriage and SSM different?

lyle on June 14, 2004 at 2:21 pm

well, i admit i was wrong. SSM started and:
1. the media promptly forgot about it
2. America promptly forgot about it
3. the world didn’t end (yet).

. on June 17, 2004 at 8:19 am

Anonymous on June 17, 2004 at 8:20 am

.

treatening on June 14, 2005 at 6:21 pm

http://best.artsculpture.org/f5hp76e/ availabledrugpumped

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