Getting It Wrong, Part II

The sad news of the Obergefell v. Hodges ruling came out on Friday.

Normally on controversial rulings, I go through the opinions in this blog and consider the legal ramifications. But we’ve been through much of this already. Kennedy’s opinion ignored the law and came down to something about him personally not wanting homosexuals to feel lonely--not kidding. (He ignored his own recent ruling that marriage law was up to the states, not the federal government.)

The irony of the day was Chief Justice Roberts’ dissent about the majority ignoring the law—after he had done exactly that the day before on the King v. Burwell decision. All four dissenting judges wrote their own dissents—all worth reading. Again, Justice Scalia’s is the essence of clarity and truth.

Justice Kennedy is at fault—moreso than Breyer, Ginsburg, Kagan, and Sotomayor—because the others are partisan hacks, but Kennedy swings, so the decision was his. He is like the independent voter, going by some personal list of criteria mysterious to those of us with real principles, with the hubris to believe that his mind workings are more evolved than the rest of us.

That single unelected person in a black robe decided for all of America that there is, somewhere hidden in the 14^th Amendment, a heretofore unknown right for homosexuals to marry. Because he knows more than God.

He doesn’t actually know more than God. Reactions to the ruling seem to forget that.

The people's house, with a small sub-group's flag
superimposed on it, photo from WhiteHouse.gov

The White House cheered by changing the white lights to be a rainbow. They were able to accomplish that lighting change that very day. One might think that was planned for way ahead of time, almost as if they had control over the ruling. Author Brad Thor pointed out that this was practically the first time the White House wasn’t surprised by the news; practically everything else they claim to learn about as we did, on TV news broadcasts. 

We might note that the White House is the people’s house, not the Obamas’. Their “gay pride” in the face of more than half of Americans is intentionally offensive. No other flag has been represented in colored lights on the White House—not even red, white, and blue on the 4^th of July. The LBGT flag gets special privileges, just as homosexuals insisted on special privileges concerning marriage.

In addition, the president gave a speech (also likely prepared well in advance of the ruling, as if he knew the outcome). Apparently forgetting that he deceptively campaigned in 2008 as a supporter of traditional marriage, he said,

Opposition in some cases has been based on sincere and deeply held beliefs…. All of us who welcome today’s news should be mindful of that fact. Recognize different viewpoints. Revere our deep commitment to religious freedom.

But today should also give us hope that on the many issues with which we grapple often painfully real change is possible.…

Shifts in hearts and minds is [sic] possible…. And those who have come so far on their journey to equality have a responsibility to reach back and help others join them.

Let me translate: “You bitter clingers need to give up your religious beliefs; we’re right and you’re wrong, and we’ll force you into compliance. We might go easier on you if you submit to our superiority now.”

Here’s the thing: the president of this country is not more powerful or more all-knowing than God. Neither are any black-robed judges.

Contrary to popular belief, marriage—real marriage—didn’t change on Friday. Real marriage is older than all earthly governments, and it won’t change because people change their opinions.

It predates this earth. But on our planet it was instituted by God to our first parents. He gave Adam and Eve a covenant—between each other and the two of them together with Him—to sanction the behavior that they would need to experience (and hopefully enjoy) in order to multiply and replenish the earth, so that they would experience the joy of having posterity.

Marriage was a blessing to them from the beginning, and to all of us who have come after. Saving that sexual act until it is sanctioned by covenant offers many blessings: knowing who a child’s parents are, committing both parents to the raising of their children, economic stability, absence of sexually transmitted diseases, and more. There is nothing instituted in any culture at any time that is better for building civilization.

Marriage provides care for children during the years before they are productive. It provides support for women during childbearing and raising small children when they would otherwise struggle to be self-sustaining. It motivates men to more productivity in order to meet their family obligations. And it connects men and women permanently, to work together for the economic and social well-being of their family unit.

There is a detail about this that has been ignored in today’s society. Marriage is to sanction the procreative sexual act—before it takes place. It legitimizes no sexual act other than the procreative one. And it is understood that extramarital participation in that act is illicit: i.e., outside the law, not sanctioned by law.

In religious terms, any sexual acts outside of marriage is a sin. It is outside the covenant. God has not approved it. That’s why the terminology includes phrases like “illegitimate child,” “living in sin,” or “making an honest man (or woman) out of me.” 

Governments, which usually support the covenant, refer to the specific procreative act. This procreative act requires a male and a female. If you don’t believe this, your biological education is sorely deficient. A marriage isn’t consummated until the man and woman engage in the act. Failure to engage in it is grounds for annulment.

Homosexuals never, ever, world’s without end, engage in that act with someone of the same sex. It isn’t a physiological possibility. What they do is sexual, but it isn’t what is required for marriage. The Supreme Court can’t make it so; all SCOTUS can do is confuse the law, and take away the honor from real marriage that it has always had because of its benefit to society.

Furthermore, homosexuals are not entering marriage in order to place within the law any sexual act they have been refraining from; you may not find, in the entire history of homosexuality, a couple that keeps themselves pure and virginal up until the moment their government deems them married. They aren’t insisting on their alignment with God; they are insisting that society ignore what marriage is and honor their sexual act as equivalent to the procreative act—just because they want the honor.

Society has been duped.

This has been the result of a media campaign. If truth were given even half as much media, beliefs wouldn’t have been manipulated.

The issue has been framed as about fairness and tolerance. There may have been times, a century ago, when people were prevented from making a living or getting housing because of their homosexual lifestyle. That mostly disappeared long ago. Long before judicial activism stepped in to “help.” But the media campaign has portrayed anyone who points out the obvious—that real marriage is best for children, families, and societies as a whole—as bigoted homophobes. Name calling. As well as some sticks and stones in the form of ostracism and business ruin intended to instill fear.

What we’ve seen on social media this past weekend is a lot of bandwagon jumping. People want to pat themselves on the back for not being bigoted, so they put a rainbow on their profile photo. They think they’re meaning, “I’m open-minded; I’m a good person. Because I don't hate gays.”

But they’re actually falling into the trap of another meaning: “I don’t want to be seen as something the loud media calls bad, so I’m labeling myself the way the media wants. And I think we media-go-alongers know better than God. Those people who don’t go along with us will be labeled negatively and will be persecuted, as they should be, for not giving in with us.”

If you’re a go-alonger, you seem to have fallen for some things that are not true. Such as, homosexuality is a genetic reality; a person is made homosexual and cannot change or even refrain—and shouldn’t.

Let’s look at what this means to a Christian, since actual Christian believers are to be the target of the persecution. You go-alongers are saying that, while God requires obedience to His commandments for all heterosexuals, He made homosexuals exempt to His law, because no homosexual should be expected to refrain from sexual acts God’s law forbids. You are saying God must have made a mistake—because science (not real science, but pseudo-science) says homosexuality is natural, and inborn, and unchangeable—and that means they have no free will to control their behavior.

You are saying, either God has to change His law, or else He is unfairly excluding an entire group of people who haven’t done anything to keep themselves out of heaven except that sexual sin thing that you think shouldn’t apply to them. So God is just a big unfair meanie. According to you. Because you know better than God.

Can a real Christian be wrong on such an issue? Yes, we can all be wrong on a lot of things. But God is not wrong. So if you’re out of harmony with God, it is up to you to correct yourself. Christians who are in harmony with God on family and marriage will not persecute you; we will use persuasion, example, and patience. That’s what Christians do. That is what tolerance looks like. Not giving in, not celebrating sin. But with love trying to persuade all people to come unto God.

Tolerance does not look anything like coercing Christians to use their talents and abilities to celebrate what God has clearly declared to be a sin. So if you’re one of those who says, “Just go ahead and bake the cake already, you troglodyte bigot,” you’re on track to support tyranny. We’ve seen it before. Everywhere there has been tyranny.

Taking the side of tyranny for temporary safety from persecution might seem like a good idea to you now, but you will answer for it before God.

I call you to repentance, with gentle invitation, but firmly. I’ve taken a stand. And experience tells me I’m better off siding with God than with Obama, or Justice Kennedy, or even friends who put pro-homosexual flags on their profile photos.
______________

PS: Son Political Sphere reminded me of an additional point. Justice Scalia has pointed out that every time Kennedy writes that something is safe, the next ruling he writes endangers that very thing. This time his opinion assured us that our First Amendment guaranteed freedom of religion is safe. That means the next thing you can expect from Justice Kennedy will be his explanation of why we do not have that right. We'll be watching.

Millennia of Marriage, Part II

In Millennia of Marriage, Part I, we covered the first several points of Question 1, of oral arguments before the Supreme Court last Tuesday. The main concern was whether the many nations and cultures that have defined marriage as between a man and a woman did so out of animus toward homosexuals or because of some other rational reason.

The answer was clear that there are rational reasons for limiting the definition of marriage to man-woman relationships.

That question covered most of Ms. Bonauto’s portion, but not US Solicitor General Verrilli’s portion, nor the defense. So the rest of today’s post will cover those portions. It may take a third post to cover Question 2. 

Starting where we left off, the next question is brought up by Justice Alito:

JUSTICE ALITO: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?

The point here is that, if a marriage is just a governmental recognition of any two people who love each other, then how can you limit the criteria to two people, or any of the other limitations? In all the debates on this I’ve heard over the years, the same-sex “marriage” advocates always avoid this question. They say, “we’re not talking about polygamy,” or whatever. No, they’re not talking about it, because they have no answer.

Ms. Bonauto says it’s questionable whether a state would even call that a marriage. Hmm.

Polygamy, she claims, brings up all kinds of questions about consent and deceit. Justice Alito presses her, with good humor:

JUSTICE ALITO: Well, what if these are 4 people, 2 men and 2 women; It's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. (Laughter.) What would be the ground under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

She steps into the trap. She claims that the number two is fundamental to marriage. She offers her personal opinions on the disruption to family that could be caused. But she has nothing to explain why the number two must be fundamental to marriage but the combination of man and woman is not.

Questions about the social science. Concerning same-sex parenting, she claims it’s all settled:

MS. BONAUTO: These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there's nothing about the sex or sexual orientation of the parent, is it is going to affect child outcomes?

Not so. This statement is repeated later by General Verrilli:

GENERAL VERRILLI: Right now, today, hundreds of thousands of children are being raised in same-sex households. That number is only going to grow. All of the evidence so far shows you that there isn't a problem, and what the and the States' argument really is quite ironic in this respect that it's going to deny marriage, the State…  I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and

JUSTICE SCALIA: Well, I think some of the some of the briefs contradicted that.

It is the purpose of the plaintiffs—and the federal government in defending circuit court rulings—to shut down debate by claiming there is consensus. That all the social science of, what, almost a decade in a few places that have had same-sex “marriage” for that long, agree forevermore that children’s outcomes show no differences. And yet the briefs clearly show that consensus is not the case. In fact, the most recent, and mounting, evidence shows a number of negatives for children raised by same-sex parents.[i]

Back to Ms. Bonauto’s testimony, Chief Justice Roberts points out that the length of time for study has been very short, and, “closing of debate can close minds.”

Justice Scalia then expressed concern with declaring something constitutional law, when there’s a lot of disagreement, including for religious reasons. When states form the laws, they can carve out exceptions, but once something is declared a constitutional right, there are no exceptions. What would happen to ministers who perform marriages? Ms. Bonauto said no state forces clergy to perform marriages against their conscience. But that’s the point; state law is able to allow exceptions, while constitutional law cannot.

Furthering this discussion, it was admitted that, while a clergyperson couldn’t be required to perform such a marriage, refusal to do so could lead to government refusing to grant him marrying authority altogether. And justices of the peace or other officials with marrying authority would not be granted religious freedom exemptions.

This issue is bigger than it was made at this point in the discussion. Justice Sotomayor claimed that the First Amendment would protect religious freedom. But it already hasn’t. Everywhere same-sex “marriage” has been imposed, religious freedom has been abrogated. Small business owners have been the most common target. The persecution has been vicious.

This same question arises again during General Verrilli’s testimony. And this was one of the more newsworthy moments of the day.

CHIEF JUSTICE ROBERTS: We have a concession from your friend that clergy will not be required to perform same-sex marriage, but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same-sex couples?...

GENERAL VERRILLI: The first [point] is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment. And the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well you know, different states could strike different balances.

CHIEF JUSTICE ROBERTS: What about Federal? It's a Federal question if we make it a matter of constitutional law.

GENERAL VERRILLI: But the question of what how States use their enforcement power is up to the States.

CHIEF JUSTICE ROBERTS: Well, you have enforcement power, too.

GENERAL VERRILLI: Right. And, well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out. And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same-sex marriage, where there are and, in fact, they have arisen many times. There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers.

JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

GENERAL VERRILLI: You know, I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is it is going to be an issue.

Let me summarize that: Clergymen might lose their right to marry if they are unwilling treat same-sex couples the same as man-woman couples, regardless of their religious beliefs. People in service industries related to weddings can be forced to offer their services, regardless of their religious beliefs—and possibly regardless of whether or not same-sex marriage is called constitutional. And religious schools will be affected—lose tax-exempt status, lose accreditation, etc.— if they teach their religious beliefs about marriage.

If you're wondering how granting same-sex "marriage" affects me, there it is.

Is there any possibility that anyone thinks the founders who wrote the First Amendment expected that amendment to be thrown out because same-sex couples want to change the definition of marriage?

The two sides define what marriage is differently. Ms. Bonauto referred to “intimate and committed relationships” to “provide mutual support.” Justice Alito asks for a definition directly from General Verrilli:

JUSTICE ALITO: What do you think are the essential elements of marriage as it exists today?

GENERAL VERRILLI: Well, I think the essential elements of marriage are the ones that are that the the obligations of mutual support and responsibility and the benefits surrounding marriage that State law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life. And that and with and and, certainly, childrearing is bound up in that.

So, it’s a relationship of mutual enduring support. And, as an afterthought, the two people might rear children that don’t necessarily result from the relationship—and in the case of same-sex couples absolutely cannot result from the relationship.

Justice Alito challenges this assertion with a situation that seems to strike the Solicitor General as random and unrelated, even though it’s right to the point:

 JUSTICE ALITO: Well, let's think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They've lived together for 25 years. Their financial relationship is the same as the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently?

This question came up some years back when some states were considering civil unions; some people on the side of preserving real marriage were willing to compromise on civil unions—provided that elderly siblings and other non-sexual unions could be included. But General Verrilli has some internal definition of what marriage is supposed to be that wouldn’t allow it:

GENERAL VERRILLI: But, of course, marriage is something more fundamental than that. It is an enduring bond between two people.

He doesn’t answer what the difference is. But what he’s avoiding saying is, you can’t have marriage without a sexual relationship—and we’re all going to ignore the fact that it’s a different sexual act that separates real marriage from same-sex “marriage.”

The defense counsel was John J. Bursch. He pointed out that there is this difference in definition.

MR. BURSCH: The marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology…Now, the marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that's important, but the State doesn't have any interest in that. If we're trying to solve that social problem I just described, where there's no marriage, we wouldn't solve it by saying, well, let's have people identify who they are emotionally committed to and recognize those relationships.

Marriage, then, is a social institution intended to bind mothers and fathers to each other so that they will be bound to their offspring.

Most of the interrogation of Mr. Bursch related to how laws deal with procreation. What several of the justices seem to be unaware of is the way courts have historically dealt with fertility. It has always been the assumption of the state that a man and woman who marry may be fertile.  The women on the court seemed especially unable to grasp the concept that if you change what marriage is, you change the outcome to society.

MR. BURSCH: Justice Kagan and Justice Ginsburg, it has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. And when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences….   

Justice Sotomayor was too obtuse to grasp the connection. Traditional marriages end, and some parents leave their children; therefore there is no connection created by marriage between mothers, fathers, and their children. He tried again:

MR. BURSCH: Justice Sotomayor, there's all kinds of societal pressures that are already delinking that reason that the State, again, is for marriage, keeping kids and their biological moms and dads together whenever possible.

That last point was something he does not need to prove, Justice Scalia reminds us. The side of traditional marriage does not need to prove there is harm by allowing same-sex couples to “marry”; they prevail if they show they have a rational basis for the definition of marriage.

Mr. Bursch drew this connection between mothers, fathers, and children again and again. And the justices kept asking questions about fertility—ignoring that individual homosexuals are not typically infertile; it is their coupling that is infertile. Biology makes the difference.

When talking about the long-term consequences of changing the definition, he gave this clear explanation:

MR. BURSCH: I want you to think about two couples that are identically situated. They've been married for five years, and they each have a 3-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together.

A reasonable voter, which is what we're talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.

Mr. Bursch refers to the argument as a rational basis for keeping the definition, which is the requirement of the case. But that’s not what Justice Sotomayor is going to judge on. She says,

JUSTICE SOTOMAYOR: But the problem is that even under a rational basis standard, do we accept a feeling? I mean, why is why as and I think Justice Kagan put the argument quite clearly, with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense, control our decision-making?

She seems ignorant of the fact that she is considering imposing same-sex “marriage” on the entire country based on her feeling that it’s more fair to honor homosexual couples’ feelings, rather than the rational basis standard.

The weirdest line of questioning came from Justice Kagan, about the possibility that a state could limit licenses to only those couples who will procreate.

JUSTICE KAGAN: Suppose that there's a State with a very procreation centered view of marriage of the kind that you're talking about. And it you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. And so they say, Well, we're not giving marriage licenses to any to anybody who doesn't want children. So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?...

MR. BURSCH: Would it be constitutional?... I think it would be an unconstitutional invasion of privacy to ask the question.

Justice Kagan seemed shocked.

JUSTICE KAGAN: To ask if you want children is an unconstitutional invasion of privacy?

These are your justices, unaware of the assumption of fertility in marriage law, but thinking it must be constitutional to ask questions about not only fertility, but intent to procreate—in granting licenses And add in maybe judging whether someone is too old to procreate. But they think it’s definitely wrong not to alter the definition of marriage to include same-sex couples.

I wonder how they’d feel about asking the question of whether the couple plans to engage in the male-female sex act that can result in marriage. Because that is an assumption that applies to actual marriage. If one of the couple comes back later and says, “My spouse refuses to engage in marital relations with me,” that is cause for annulment.

Getting into some of the nitty-gritty, about fundamental rights, and how the Windsor case dealt with them, Mr. Bursch reminds Justice Breyer what his ruling said:

MR. BURSCH: In Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental.

Mr. Bursch was well-prepared and fended off the often oddball questions admirably. There were things he was prevented from saying, because of previous rulings of this Court. The Court previously bestowed upon us this unlaw-like and irrational standard: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”[ii] So, if a person wants to define homosexual behavior as meaningful, the rest of us are required to go along? Who gets to determine that my “concept of existence,” and so forth is not valid? It’s not a very exact standard.

I would have liked for Mr. Bursch to point out that no homosexuals are prevented from marrying. The closest he was able to come was to say that sexual orientation isn’t mentioned in marriage law. The basic fact is, homosexuals can marry—a person of the opposite sex, not already married, not too close a relative, and who is of the age of consent—just like the rest of us.

The plaintiffs are twisting facts when they say homosexuals are prohibited from marrying; they are not. They keep saying homosexual couples are prevented from marrying; that is so. Already married people are also prevented from marrying, and the plaintiffs seem perfectly content to discriminate against those possibly “bonded and mutually supportive” people.

It seemed to me that the plaintiffs’ counsel and the Solicitor General were unprepared for the questions that came to them. It’s possible that they live insular lives, surrounded by people who agree with them. All they would have needed was to read an article or two by Ryan Anderson[iii]; the arguments are well covered. Yet they seemed surprised by them. They thought they could get by with, gay couples have a right to marry, because, um, because they, um, want to marry, and they should get what they want.

The defense is required only to show that there is a rational basis for defining marriage as it has been done for millennia. The defense of marriage was strong, and clear, and fully aware of the law. Nevertheless, some of the justices seem to be unaware of their job, unaware of current marriage laws, and unaware of the very real dangers to society and religious freedom if they capriciously invent a new constitutional “right.”

If they paid attention, they must allow real marriage to prevail. But, while I was given hope by the oral arguments, I cannot predict what they will rule.

Question 2 assumes that the right to traditional marriage is upheld. Then what happens across state lines? We’ll look at that in Part III.

---

[i] Citations related to same-sex parents and children’s outcome:

• Parliamentary Report on the Family and the Rights of Children, January 2006.

• Douglas Allen, “Review of the Economics of the Household,” October 2013, described in “A Married Mom and Dad Really Do Matter: New Evidence from Canada,” by Mark Regnerus: http://www.thepublicdiscourse.com/2013/10/10996/ 

• Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American psychological association’s brief on lesbian and gay parenting,” Social Science Research, Volume 4, Issue 41, [  http://www.sciencedirect.com/science/journal/0049089X/41/4     ] July 2012, pp. 735-751.

• Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research, Volume 41, Issue 4, July 2012, Pages 752–770.

• Ana Samuel, “The Kids Aren’t All Right: New Family Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14, 2012, http://www.thepublicdiscourse.com/2012/06/5640/#_edn1. [See the footnotes as well.]

• Ann Bailey, “How do children fare when reared by same-sex couples?” United Families International Blog, June 11, 2012 [has an excellent graphic]: https://unitedfamiliesinternational.wordpress.com/2012/06/11/how-do-children-fare-when-reared-by-same-sex-couples/

[ii] 505 U.S. 833, 851 (1992) (plurality opinion of O’Connor, Kennedy and Souter, J.J.).

[iii] Here is Ryan Anderson testifying in Indiana last year: https://youtu.be/3TNmKo5KcMY

Fourteenth Amendment and Marriage, Part II

Today is the second part looking at the questions to be answered in oral arguments before the Supreme Court on April 28^th. There are two questions being addressed.

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

We covered question 1 in Part I. Today we’ll cover question 2, plus take a look at the status of marriage laws in the states prior to a ruling.

Question 2 relates to Article IV of the Constitution, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Normally, a contract formed in one state is upheld in the other 49 states. But marriage isn’t a normal contract. A simple contract between two people—such as co-ownership of a boat—would hold up beyond state boundaries. But a marriage is more complicated. It’s more than just a two-person contract; government and society are involved in honoring the particular thing that marriage is. While the marriage remains intact, we offer joint ownership of property accumulated during the marriage—which allows for one spouse to stay home to care for offspring while the other spouse earns income for the whole household, and other arrangements particular families might find beneficial. Insurance is different for married and single people. Taxes are different for married and singles (sometimes choices can be made to do what is most beneficial, filing jointly or separately).

Then there are things the state is required to do when the participants choose to end the contract—to divorce. States differ in general rules for dividing property. And then there’s the more difficult issue of dealing with child custody—preferably in the best way possible for the children while not abrogating the rights of fit parents.

Note that states already differ in ways they handle divorce; the couple is subject to the laws of the state in which they divorce, regardless of what the laws were where they married. The Full Faith and Credit clause does not require a state to have its laws subsumed within some other state’s laws, just because the contract was formed there.

Things would be less messy if no same-sex “family” had child custody issues. No such couple can produce children, so if a child is genetically related to one or the other, the simple decision would be to allow custody to the biological parent. If laws had been maintained to allow adoption only by married husband and wife, there would be no messiness now, in which homosexual couples complain that we, society, have somehow marginalized their children by making it seem that their family forms were less valid.

We did not make it that way; nature made it that way. And so far these “parents” are failing to prove themselves equally valuable to children or society. More studies are showing that same-sex parented families have outcomes seriously inferior to married parent families.[1]  Among the amicus briefs offered to the 5^th Circuit Court in January came from a group of now-adult children raised by same-sex parents, declaring the problems they faced, ranging 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.

We do, however, have precedent for how to treat marriages formed in other states (other sovereign nations) that do not meet our basic definition. Various countries throughout history, and currently in our world, allow for multiple wives. Our government does not recognize more than one as a legal wife. Most of the time there is not interference with these people’s chosen family forms—unless they start requiring government recognition, such as in taxes, welfare, or child custody. It would be a simple thing to apply the same pattern among the united sovereign states in the US. If there are differences in what can be accepted as a marriage, then let the couple be aware of where they are going, as they do now concerning divorce.

No one is going to stop these people from traveling state to state and staying together. Nobody cares. But if they move to a non-recognizing state and then start requiring the state to determine their division of property and child custody disagreements, they shouldn’t expect the state to deal with them as their state of origin might. Nor should they expect the state’s tax laws to change just to satisfy them.

It shouldn’t be possible for a small state, like Massachusetts, which had same-sex “marriage” imposed on the people by its state supreme court’s misreading of their constitution, to suddenly by fiat go against the will and belief of the people in all the other states. That is not the intention of the Fourteenth Amendment, nor of the Full Faith and Credit clause.

Changes happen day-by-day lately. But I’ve attempted to find the current status of marriage in the United States and its territories. By my count, currently 25 states have had same-sex “marriage” imposed on them regardless of the state’s laws and constitutions to the contrary. Ten states plus the District of Columbia have had same-sex “marriage” imposed on them by state legislatures, with varying percentages of agreement from the people. Eight states have court rulings attempting to impose same-sex “marriage,” but these are under appeal and haven’t been imposed yet (or fully imposed in some cases). Seven states and the remaining five territories still have their original definition of marriage—so far.

If the SCOTUS ruling is that states have no right to define marriage in a way that doesn’t include same-sex couples, that would be at odds with the purpose of the 14^th Amendment, and it would reverse the Court’s most recent ruling.

If the ruling on question 1 is that states have the right to their own definitions, as was made clear the last time the Supreme Court looked at the issue, then it would allow any or all of those 25 court-imposed states to revert to their traditional definition of marriage. That would be a swing from 35states licensing same-sex couples to only 10 (plus DC). And it would move the number keeping the traditional definition of marriage to 40 plus the territories. If that is the ruling on question 1, then it is likely that individual state laws will be respected in question 2 as well.

An anti-freedom ruling on either question would face state sovereignty challenges in a number of states (Texas, for one).[2] But the ruling would be expected to go beyond the court cases at issue and apply to every state.

So the stakes are high. Certainly higher than anything court related was intended to be by the writers of the Constitution. We’ll be watching and praying that the justices understand the law and abide by it, for the sake of civilization as we know it.

While the questions address specifically whether same-sex "marriage" will be imposed generally, we should be aware that every time same-sex "marriage" is allowed, freedom of religion comes under attack. Civilization requires a religious people, self-governing according to codes of conduct based on the Ten Commandments, and protecting family as the basic unit of society. Same-sex "marriage" isn't just a question of whether homosexuals have an innate right to marry whoever they choose regardless of the definition of marriage; it is a question of whether we choose to live in a civilized society, along with freedom and prosperity--or the alternative of savagery with tyranny and poverty.

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[1] Citations related to same-sex parents and children’s outcome:

• Parliamentary Report on the Family and the Rights of Children, January 2006.

• Douglas Allen, “Review of the Economics of the Household,” October 2013, described in “A Married Mom and Dad Really Do Matter: New Evidence from Canada,” by Mark Regnerus: http://www.thepublicdiscourse.com/2013/10/10996/  

• Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American psychological association’s brief on lesbian and gay parenting,” Social Science Research, Volume 4, Issue 41, [  http://www.sciencedirect.com/science/journal/0049089X/41/4     ] July 2012, pp. 735-751.

• Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research, Volume 41, Issue 4, July 2012, Pages 752–770.

• Ana Samuel, “The Kids Aren’t All Right: New Family Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14, 2012, http://www.thepublicdiscourse.com/2012/06/5640/#_edn1. [See the footnotes as well.]

• Ann Bailey, “How do children fare when reared by same-sex couples?” United Families International Blog, June 11, 2012 [has an excellent graphic]: https://unitedfamiliesinternational.wordpress.com/2012/06/11/how-do-children-fare-when-reared-by-same-sex-couples/

[2] The Texas Legislature is currently considering a bill that would disallow officials from granting licenses to same-sex couples or any others that do not meet the requirements of the law, as written in the state constitution; it is a sovereignty issue. More on this bill in a Breitbart news item:  http://www.breitbart.com/texas/2015/01/11/texas-rep-introduces-bill-to-defend-traditional-marriage-and-state-sovereignty/ .

Fourteenth Amendment and Marriage, Part I

We’re within a month of hearing oral arguments before the Supreme Court regarding the question of re-defining marriage. On April 28, SCOTUS will be interested in arguments on two questions, related to several consolidated cases:

US Supreme Court
official photo, found on Wikipedia

1.      Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2.      Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

So our first step ought to be to look at the Fourteenth Amendment. It has five sections; Section 1 is the relevant one. It reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment passed in 1868, as part of Reconstruction, after the Civil War and the freeing of slaves. The purpose was to make sure that newly freed slaves would receive full citizenship rights throughout the United States, disallowing particularly the southern former slave states from abrogating the rights to vote, own land, own businesses, and otherwise fully participate as citizens equal before the law.

There were nevertheless “Jim Crow” laws relegating anyone with “black” appearance or known blood relation to second-class status in many southern states. Those were wrong, and took the mainly non-southern, Republican support in hand with Martin Luther King and other southern blacks to push through Civil Rights legislation in the 1960s, a full century after the passing of the Amendment XIV.

Neither the Fourteenth Amendment nor the Civil Rights movement would have been necessary if we had had a people committed from the beginning to the radical but self-evident truth that “all men are created equal,” as we declared in our Declaration of Independence. But, since it took a while to get a critical mass of racially neutral people, we had to restate the self-evident.

You may have noticed that the Fourteenth Amendment does not say, “All States shall be required to re-define marriage to include couples of the same sex.” What is being argued is that “couples” are being discriminated against because of their sexual orientation—and therefore the longstanding definition of marriage used in civilizations through the millennia of recorded history must be declared null and void and replaced with something new and more inclusive.

So first we need to ask, do all “couples” (or couplings, or joinings together) merit the same inalienable rights as individuals? And second, what new definition of marriage would be suggested to lead us further into civilization?

Are all couples (or combinations of two or more) created equal? Existing marriage laws say no. A couple eligible for marriage, traditionally and in written law, has been a man and a woman, of marriageable age or of an age that parental consent can be given lawfully (differing state to state), not too closely related (differing state to state), not married to any other person.

While that last one has differed from culture to culture, with some cultures allowing one man to marry more than one woman, each such marriage is between the man and the singular woman. And such marriages have never been allowed without full knowledge of the other marriages—marriage to another without knowledge is a deceit prosecuted as bigamy—nor have such marriages ever been legal in one of the United States. (Utah outlawed plural marriage in 1890, six years prior to gaining statehood.)

So, the standard definition of marriage has always required an eligible man and woman, joining together exclusively in a contract intended for life, consummated with a particular sex act that can lead to offspring—and offspring are a social good that society is interested in.

Marriage predates this nation’s laws, and any others’. Because it is a contract, we ask for enforcement and mediation, as we do for other contracts. As in any contract, terms have specific legal definitions. The purpose of the national DOMA (Defense of Marriage Act), signed by Pres. Clinton 1996, was to reinforce the definition that was commonly in use, to say that in contracts involving the Federal Government (some thousands at the time) would define marriage as between one man and one woman—as all the states up to that time did, with a temporary blip from Hawaii that was almost immediately reverted to the standard definition. But in 2013, the Supreme Court ruled (erroneously, in my opinion) that DOMA was unconstitutional because it had no rational basis except to discriminate.

DOMA did not discriminate; it reasonably defined a legal term commonly in use. But the ruling essentially made it so that there would be no definition of marriage in US law code; such definitions would come from whatever the states of particular citizens defined the term as.

It could be significant in the current cases that SCOTUS has already ruled that the federal government has no business either defining the term or forcing a federal government definition on the states.

The cases before the court now are related to federal circuit courts that have ruled that states do not have the right to define marriage—unless they change their definition to include same-sex couples. In other words, the courts have deemed it discriminatory for states to care about the forming of families as the best place for children to be raised by their mother and father in a permanent relationship. These courts have decided that states shouldn’t care about children, about permanence, about exclusivity, or even about the gender between those involved in producing children . But they think it is rational to force states to ignore all those things and define marriage as any sexual relationship between any two people who choose to announce their coupleness for the time being, whether or not it is exclusive or permanent, and with the certain knowledge that it cannot produce children, not for lack of fertility, but because of human biology.

The Fourteenth Amendment does require that the laws apply to all citizens equally. Persons with same-sex attraction are treated no differently under traditional marriage laws. There has never been a “ban” against homosexuals who choose to follow the law and marry. They can marry a person of the opposite sex, who is of age, who is not a close relative, who is not already married to someone else—the same as the rest of us. There is no discrimination.

When they want to “marry” someone who does not fit the requirements, they are requiring special treatment. They are claiming it is discrimination if all of society does not submit to changing the definition especially for them. How is their request different from someone who wants to marry someone who is already married? It’s love, they say. That’s what marriage is about! How can you be so cruel as to say no to people who love each other just because one of them (or both) is already married to someone else?

That won’t happen, you say? But it has. Have you heard the term “throuple”? It’s a “marriage” in which the number is not limited to two. Three homosexual men were “married” as a throuple in Thailand on Valentine’s Day. Not here, so not a worry? But it already happened here. In Massachusetts in August 2013. Two of the lesbian women were legally “married” two and a half years earlier. (Massachusetts was the first US state to recognize same-sex “marriage,” in 2004, when the state court imposed it.) Massachusetts does not recognize this new "marriage" form but will refrain from prosecution unless state benefits (taxes filed jointly, for example) are sought by the third woman. But this throuple had additional paperwork drawn up by a lawyer to equally divide their property, and one of them has since given birth to a child fathered by an anonymous sperm donor.

If a state cannot define the terms used in the contract, then it cannot be allowed to limit the number. It cannot limit the genetic relationship of the participants (i.e., you couldn’t prohibit a brother and sister from marrying). It might not be able to prohibit underage marriages. The Court would be saying you can’t discriminate against any persons who want to declare that their sexual relationship is a marriage. The definition would be new, unlimited, untried, and amorphous enough to be essentially meaningless.

So, the answer to SCOTUS’s first question should be no; the Fourteenth Amendment does not require the redefinition of marriage to suit the desires of people who do not meet the requirements of the contract.

That’s enough for one day. We’ll save the second question before the Court for Part II.

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.