Courts and Public Opinions

The Supreme Court reversed its October decision, wherein it decided not to rule on states’ being required by circuit court judges to change their definition of marriage to include same-sex couples.

Maybe you saw what I did there; I did not say states were being told it was unconstitutional to ban gay marriages—for several reasons: 1) the Constitution is silent on that issue, which leaves it to the states; 2) keeping the definition as it has been in most cultures during all the millennia of human history is not a ban, which would require taking something existing away; and 3) people need to be aware that a change in definition of terms for a particular contract is what’s going on, such that marriage would no longer include permanence, exclusivity, and the sexual act required for procreation, but would simply “honor” anyone in any sort of sexual relationship at the current time, regardless of society’s interest in such a relationship.

Anyway, the SCOTUS changed because there is now a split among circuit court rulings, which gave them impetus to rule sooner rather than later. We can expect a decision by late June.

I never like putting matters of basic right and wrong ordained by God into the hands of a few judges (mainly appointed for their leanings). But we can pray that a good decision on their part might be helpful. As president of the Family Research Council, Tony Perkins, said, “Lower court judges have robbed millions of people of their voice and vote on society’s most fundamental relationship—marriage.  There is nothing in the Constitution that empowers the courts to silence the people and impose a nationwide redefinition of marriage.”

So, this decision for SCOTUS to get involved happened Friday, January 16^th. The previous Friday, January 7^th, the 5^th Circuit Court heard oral arguments on the cases before it, relating to Texas. An interesting group of amicus briefs was presented—against same-sex “marriage,” from adults who had been raised by same-sex parents. Their complaints ranged from sexual confusion, to fear of disagreeing with the same-sex “marriage” promoters (risking ostracism from family relationships), to subjugation to sexual predation—apparently unprotected by the parents, and possibly even enabled by those parents.

I find some of what these people suffered to be horrifying. Their testimonies are anecdotal. However, they represent much larger numbers who have feared to come forward. Going against the culture they were raised in puts at risk the relationships they have reason to value.

The prescribed claim being made about “same-sex families” is that children raised by same-sex couples differ in no particular way from those raised by heterosexual couples. It might look like a pleasant claim, but it’s unsupportable. Studies have generally compared such children to children raised by heterosexual unmarried parents—which have significantly poorer outcomes than children raised by their married mother and father. More evidence is coming out that, not only are these children not better off than other children lacking a mother or father; these children also have the addition of sexual confusion and other sexual-related problems (overly sexual at a young age, inappropriate sexual relationships with much older adults, promiscuity, prostitution).

If the question is what is best for the children, there is nothing about same-sex parenting that satisfies society’s interest.

I listened to a good part of the oral arguments [here]. The plaintiffs’ claim that there is a Constitutional right to same-sex “marriage” fails to identify what marriage itself means. Their claim is that a minority group cannot be discriminated against by denying them marriage. This argument fails, because marriage laws do not prevent any homosexual person from getting married to a person of the opposite sex. Many homosexuals do that very thing; it’s the main way children come to exist for homosexual parents (adoption and in-vitro fertilization from a non-parent sperm donor being the other ways, because obviously a homosexual couple cannot produce offspring together).

So the argument further claims that there is a fundamental right to marry the person of your choice. But that simply isn’t so—and the different limitations are determined by the states. No state allows persons to marry someone already married, or someone under the age of consent without the consent of a parent (and then within a limited age range), and each state determines the level of consanguinity allowed (i.e., no states allow brother/sister marriage, and most disallow first cousins from marrying, maybe even second cousins). While the plaintiff’s law team made a show of reason and case law, their argument boils down to, “You have to call homosexual relationships equivalent to heterosexual marriage, because they want that, and you’re just being mean.” It’s emotional, not logical.

Some of the questioning of the defense dealt with various past cases and what each had contributed. Mostly they dealt with the question of whether and how marriage had been defined. A case concerning whether inmates could marry didn’t determine, for example, whether there was an inviolable right to marry, but related somewhat to whether a marriage could take place if there was no chance that the couple could consummate the marriage. Which really leads to a germane question that gets danced around: is it marriage if the couple does not intend to—and indeed cannot—consummate the marriage with the act that marriage is concerned with? You know the one—the particular kind of sex that can lead to procreation.

Some of the questions related to cases in which there is infertility or age impediments to procreation. But those are old, and answered; the law assumes that a man and wife with the appropriate genetics have the theoretical possibility of being fertile, and so the law does not interfere on that basis. However, failure to participate in the procreative sex act has been grounds for annulment or divorce pretty much universally; it’s a breach of the marriage contract.

What should be asked of same sex couples is, do you intend to behave as a married couple? i.e., engage in the required type of procreative act? And is it possible for you to do so with one another? If it isn’t possible, genetically, then what they are asking us all to do is pretend something is marriage that is not marriage. Our agreeing with them and proclaiming it so will not make it marriage; that will only disregard the underlying purpose of marriage.

Marriage may be much more than simply the sex act, but it must be at least that. Love is not required, but that particular behavior is. So to suddenly come up with a definition of “marriage” that excludes one of those basic essential details of what marriage means seems imprudent at best—and a hundred years hence will look foolhardy. There will not be (cannot be) progeny from same-sex couples, so the progeny of that generation will ask, “What were they thinking?”

Elder Dallin H. Oaks
photo from MormonNewsroom.org

In the wake of these marriage issues, there was a news conference this Tuesday, a relatively rare thing for The Church of Jesus Christ of Latter-day Saints, asking for protections for freedom of religion. The whole twenty are worth hearing in context, but I’ll try to summarize the three parts. Sister Neill Marriott represented Church Public Affairs, and talked about respecting each other’s views and working together to understand one another. Elder Dallin Oaks, who has been a state supreme court judge, talked mainly about issues related to same-sex marriage—and the persecution that has come upon those who stand for traditional marriage. He pointed out that a people should be granted basic rights, and he enumerated things like being able to find employment and housing. But he also asserted the right for individuals to disagree on belief issues, and we should respect rather than stifle the freedom to believe differently. He was followed by Elder Jeffrey Holland, who spent much of his time concerning the larger questions of religious freedom, such as being able to choose whom to hire or what services to perform as a business, without coercion by government or pressure groups.

I thought they all three sounded reasonable and kind—extremely kind. There was no hate speech there. Nor was there any new doctrine or shift in policy. There was simply a declaration that the doctrine is what it is, and while we can respect that many people don’t believe the same way, we request, and firmly insist, that we have the right to our beliefs as well. We have been kind and respectful, and we ask for that in response.

Whatever the Courts decide, God will still have His will, and it’s up to us, in our personal ways, to go about aligning ourselves with that. Let’s pray that the Courts don’t make things harder for any earnest believers.