Proposition 8 and Same-Sex Marriage

Why are people so anxious to go to war?

So much harm has been done on both sides because of a failure to understand what Prop 8 is really about. I am so deeply saddened by the events of the last few days. In my honest opinion, Prop 8 never should have been proposed – and the CA Supreme Court’s In Re Marriage Cases decision shouldn’t have been what it was. Both were rash and reactionary. I don’t blame anybody for being angry about the passing of Prop 8, but I am sad that the LDS church has been targeted as a scapegoat toward which all the fury of the last days has been launched.

There are two intertwining pictures (moral and legal) of the situation that we need to see separately before we can see the whole scene clearly.

The moral picture:

The unfortunate truth is that, on a moral level, the LDS worldview is an affront to the queer worldview, and vice versa. There doesn’t seem to be any getting around this. We would all like to downplay this and instead emphasize the love that we have for all people regardless of their sexuality, but when you get down to brass tacks, the LDS doctrine of eternal marriage is so foundational, so central that there is no chance of changing it without entirely distorting the entire LDS worldview. This doctrine is that marriage is a covenant between God, man, and woman. All three elements must be there for it to work. This covenant, if the couple is faithful to it, will extend their relationship past death and into the next life, for eternity. And just as we are the spiritual children of God, this couple will spend the rest of eternity creating spiritual offspring and working to lift them and bring them joy. But creating offspring requires a man and a woman. Where do gay people fit into this picture? They have been given a particularly difficult test, and must fight against their natural attractions, hope and work for change, and trust in God. It isn’t a sin to be attracted to the same sex—but it is a sin to act upon this attraction. According to the LDS worldview, what doesn’t sound fair in this life will always be weighed in the balance by God.

The queer worldview obviously doesn’t recognize any reason to not pursue romantic relationships with those of the same sex. There is no reason to think that gay attraction is different than straight attraction, speaking in terms of intensity, richness, and power to motivate. The love two gay people have for each other is equally life-defining, and their commitments are just as meaningful. These are plain facts, and most thoughtful LDS folks recognize this. But to ask the LDS church (or any other church) to accept these facts as an argument that they should allow gays to be married within their temples and chapels would be nothing less than asking them to render their entire belief system meaningless.

I’ve focused on the LDS as an example (since the LDS church seems to be the primary target of demonstrations lately), but much of what has been said about the LDS can be said about many other Christian religions, even if they don’t share the doctrine of eternal marriage. There are many worldviews, most of them religious, that are simply incommensurable with the queer worldview.

These are the foundations of the so-called “culture war” in its present incarnation. Above all, it is a battle for a certain moral status. Nobody wants to have their most precious beliefs and practices labeled as immoral. If a gay lifestyle is moral, then it is immoral for religions to exclude them on the basis of what makes their lifestyle qualify as gay. On the other hand, if such exclusion is moral, it is because a gay lifestyle is immoral.

This leads to embarrassing and inflammatory exchanges. A common one that I see goes as follows: A Christian strikes a simile between homosexuality and, say, pedophilia. This is the worst possible thing to say to someone who is gay. The Christian is clumsily trying to make the point that, according to the Christian view, a gay lifestyle is a kind of sexual sin. Meanwhile, the gay person has just been compared to a pedophile, and can’t help but perceive the Christian as immorally intolerant.

On the other hand, here is another common exchange: A gay person mocks the Christian for the outdated, unenlightened, and dangerous belief that correct standards of moral conduct come from a God. The assumption—sometimes explicitly stated--is that the Christian cannot think independently. Meanwhile, the Christian can’t help but find confirmation that the moral pathway the gay person has chosen is a result of self-absorption; a result of being distanced from God. As these sorts of exchanges become more common (and they are, thanks to the ubiquity and the anonymity of the internet), the framing of the issue becomes solidified and the opposing views become mutually reinforcing.

Now, some gay people will be fine with the Christian position. They will see their orientation as just one more effect of mortality; as something that can and must be resisted; as something that can change through the power of God. On the other hand, some Christians (gay and straight) will be fine with the queer position. They will see no reason for gays to change, and no reason for the church to exclude gays from religious ceremonies and practices. I feel like we need to listen closely to these people who are managing to live in both worlds. They may have something to teach us about how to defang a discourse that is becoming increasingly militant.

The legal picture:

I’m no legal expert, but I’ve tried to study and understand the layout of the legal issues surrounding Prop 8. This is my limited understanding of it. Skip to the end if you just want my analysis of it.

· 1999. CA State Legislature enacts legislation that creates a statewide domestic partnership registry. Domestic partners are defined as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring” (Family Code 297). There are numerous requirements for registration: age, living situation and expenses, must be same-sex or over 62 yrs old, unrelated by blood, not married or part of a domestic partnership, etc. This legislation grants to same-sex domestic partnerships most of the legal rights and protections enjoyed by civil marriages. Some substantive rights (state health benefits for partners and hospital visitation rights, for example) remain only the rights of civil marriages.

· March 7, 2000. The electorate passes Prop 22, which adds a bit of language to the California Constitution’s Family Code (section 308.5): “Only marriage between a man and a woman is valid or recognized in California.” Since 1992, Family Code section 300 (and prior to that, the Civil Code section 4100) has stated: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).”

· 2001, 2002. Legislature slightly expands the rights of domestic partnerships.

· 2003. Comprehensive domestic partnership legislation with the California Domestic Partner Rights and Responsibilities Act, the provisions of which “shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.” (Italics added.) (Stats. 2003, ch. 421, § 15.) . In short, the only difference between a marriage and a domestic partnership is the name by which it is called. (There was a lingering discrepancy in the way taxes were filed, but legislation eradicated this with an amendment in 2006. Later, nine other legal differences—not necessarily in terms of imbalanced rights—were enumerated by the CA Supreme Court in In Re Marriage Cases (2008, pp. 42-43). These were largely seen as technicalities by both sides of the debate.)

· 2004. In Lockyer v. City and County of San Francisco, the CA Supreme Court decides that SF public officials acted unlawfully by issuing marriage licenses to same-sex couples. This was appealed. The Court of Appeals upheld the decision. This decision was challenged, bringing the case to the CA Supreme Court.

· 2008. In In Re Marriage Cases, the CA Supreme Court (in a 4-3 decision) rules that marriage is a fundamental right guaranteed to all citizens by the privacy, free speech, and due process clauses of the California Constitution. To justify sidestepping the current definition of marriage (as defined in the Family Code), two steps were necessary: (1) they established precedent with Perez v. Sharp, in which the CA SC ruled that the failure to recognize interracial marriages was a breach of the constitutional right “to join in marriage with the person of one’s choice” (at the time, the CA Constitution stated that marriages of a white person “with negroes or mulattoes are declared to be illegal and void”), and (2) homosexuals seeking same-sex marriage were found to meet the requirements for quasi-suspect classification, which allowed the court to apply the strict scrutiny standard. This standard is applied when a category of people are deemed to be discriminated against by existing legislation. Dissenting opinions questioned not the moral trajectory of the decision, but the judiciary propriety of it.

· 2008. Proposition 8 is passed by a 52% to 48% majority. It amends the state constitution with the following language: “Only marriage between a man and a woman is valid or recognized in California.”

The most basic summary of the situation I can muster is this: the California Supreme Court entered the fray of the culture war by granting same-sex couples the right to marry because of the validation and sense of approval that it would bring to the union of same-sex couples. Proposition 8 is largely (but not entirely) a response by the other side of the culture war to deny that affirmation. It is also a response to what many perceive as judicial activism on the part of the CA Supreme Court.

Now, my personal view: In light of the fact that the most recent research has shown that children raised by same-sex couples show no deficits in any of the relevant categories by which society measures the success, value, and contribution of one of its members (http://www.apa.org/pi/lgbc/policy/parents.html); in light of my opinion that, in the vast majority of cases, sexual orientation is not something that is consciously chosen; in light of my expectation that, while scientific research isn’t presently conclusive with regards to the hormonal or neuro-anatomical foundations of homosexuality, it will be in the near future; in light of my conviction that the moral and religious beliefs of one group—even if it is the majority—should not dictate the rights and freedoms of another group (so long as those rights and freedoms do not impinge upon the rights and freedoms of anybody else, and I don’t see why they need to in this case); and in light of my conviction that the historical and cultural values associated with marriage can only make spouses better people, I support the right of same-sex couples to be married.

Many members of the church will disagree with me, and may even think that I’m displaying a lack of trust in the direction of the Prophet. I certainly don’t see it that way. The reasons for which the Prophet and Apostles urged Californians to vote ‘yes’ on Prop 8 have not, in my view, been articulated as having originated from a desire to exclude gays and lesbians from any sort of state-offered right or validation. The doctrine of the church is clear on this point: we should not seek to impose our moral or religious views on other groups by legislative means. Since this is largely what Prop 8 is about, I can only assume that the motivation to vote ‘yes’ rather originates from an effort to protect the interests of the Church.

At any rate, I can envision a situation where secular society affirms the value and validity of same-sex marriages, while the rights and privileges of religious institutions are untouched—most importantly in this case, the privilege of making moral distinctions based on sexual conduct.

This is why I voted “Yes” on Proposition 8. Let me explain. I sincerely want marriage to be extended to same-sex couples, but not like this. There are plausible arguments that if Prop 8 hadn’t passed, a number of churches and religious institutions would have been forced to drop any distinction between a same-sex marriage and a heterosexual marriage. There is no fear that this would, say, force churches to marry same-sex couples. However, there is a fear that, for example, the adoption agency run by LDS Family Services would lose its state licensing and would be forced to shut down (something like this happened to a Catholic agency in Massachusetts). Many religious schools may have lost tax-exemption. There are other fears, but it this category of side-effects that seems most likely and most unacceptable to me. And then there is the original In Re Marriage Cases decision. Much of the reasoning was sound, but I tend to agree with the dissenting opinions: the court overextended its reach and engaged in judicial activism.

I fully expect same-sex marriage to happen in the next 10 years. It will happen. I hope it can be done with an eye towards protecting religious freedoms. I hope it can be done through the legislative branch, not the judicial branch. The culture war has boiled over and become a legal battle. These differences in moral judgment won’t go away soon, and we need to be expertly careful in how we go about securing the rights of all people to hold and express these moral judgments. In the meantime, I hope we can all agree that this is just a sad situation, and that we should all work to understand each other a little more, and be angry with each other a little less.