Freedom of religious speech

By John M. Templeton Jr., M.D.

Pittsburgh Post-Gazette

Saturday, June 10, 2006

In this important article, John Templeton has unwittingly disclosed why the aggressive supporters of the Pennsylvania Marriage Protection amendment are actually hastening the arrival of same-sex marriage in Pennsylvania.

Let me explain, piggybacking on insights gained in the May 14 post below, which discusses Maggie Gallagher’s Banned in Boston.

Based on Templeton’s essay, it appears that Pennsylvania may be following in the footsteps of Massachusetts.

Recall that the first step towards same-sex marriage in Massachusetts was the law prohibiting discrimination on the basis of sexual orientation over a decade ago.

Then in 2003, the Massachusetts Supreme Court ruled that it was discriminatory to restrict applicants for marriage to those of the opposite sex and allowed that same-sex couples be permitted to marry.

According to Gallagher’s report, “the majority [on the court] ruled that only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently.”  Apparently they read the will of the people correctly as represented in their legislature, because the state representatives did not pass any countervailing legislation when they had opportunity to do so.

It is common among conservatives to consider this Massachusetts ruling the result of an “out-of control judiciary.” James Dobson’s Focus on the Family does so and used this as a primary justification for supporting the Federal Marriage Protection Amendment.  Charles Krauthammer also considers this case to be “judicial overreaching,” but he cautions - “The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment.  Where does it end? Yesterday it was school busing and abortion. Today it is flag-burning and gay marriage.  It won’t end until the Constitution becomes pockmarked with endless policy amendments. The Constitution was never intended to set social policy.”

However, I cannot agree that the Massachusetts case was judicial overreaching.  I admit I am not looking at it in a technical, legal sense, and do not know all the facts of the case; but I get the impression that most other commentators do not have a legal scholar’s perspective either, since I have yet to hear any reasons for that opinion.  The accusation of “judicial overreaching” just seems to be a forceful way of saying one does not agree with the opinion.  It seems to me that the only sensible approach that would avoid this accusation is the one proposed by Chief Justice John Roberts as described by E. J. Dionne (i.e. the less a court decides in a case, the better; therefore a court’s decisions should be based on the broadest possible agreement among the justices; cf. Romans 12:17).  It seems to me, moreover, that if you try to empathize a little with the Massachusetts judges, who were making decisions in a highly charged partisan environment, you can begin to imagine why they might have come to their conclusion.

If Massachusetts was anything like it is in Pennsylvania, then the main objections being vehemently argued against same-sex marriage were made by religious people.  And the types of arguments used are often not very sound (as illustrated in the May 21 post below) and therefore suggest a source in irrational bias. Religious people face a huge problem communicating their worldview in modern society, and it does not translate well when the topic of communication is such an emotional one.  Given the legal requirement of equal opportunity for homosexuals, judges in such circumstances would reasonably conclude that “only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently.” It’s as simple as that, and that is a reasonable conclusion since what appears to be shallow reasoning to deprive someone of what they want will naturally appear to be motivated by animus against them.  The legal prohibition against sexual discrimination had established the social policy of equality for gays; and the case was specifically about their requests for same-sex marriage, so it was not unreasonable for the judges to reach their conclusion given a lack solid arguments against it.  They found no basis in the law for denying those requests. 

It is this loophole in the law that marriage protection advocates are attempting to fill; but they are going about it by castigating the judges who made honest decisions as far as we can tell.  And they are further exacerbating the discrimination against homosexuals by all their emphasis on the “homosexual agenda” and the threats posed by social change in this area.  In other words, they are providing the documentation for a judicial judgment that there is animus against gays in Pennsylvania, and that it is only discrimination against homosexuals that deprives them of the benefits of same-sex marriage!  Since there is already a Pennsylvania law disallowing same-sex marriage, the only effective purpose of the proposed “marriage protection” amendment is to disallow civil unions or their equivalent - to deny gays any family or marriage related rights at all!  So for the most part the marriage amendment campaign is perceived as directed against homosexuals.  And some seem to wonder whether the angry focus against judges is actually a substitution to allow covert venting against homosexuals.

In Pennsylvania we have already started going down the same road that Massachusetts has taken, but we are making it easier for judges to reach the same conclusion they reached there.  All you have to do is carefully examine who is supporting the Pennsylvania Marriage Protection Amendment and who is not - AND notice what arguments they use and the tone of the arguments they are using.  A representative sampling of significant contributions readily available online is listed on the sidebar of this blog.

A truly Christlike approach to this social conflict would not focus on just one side of the conflict or the other, but would attempt to meet the needs of ALL the people involved, including the many children who are dependent on the social environment that the political order supports - children in both traditional and nontraditional families.  Jesus could not have been more explicit:

You have heard that it was said, `Love your neighbor and hate your enemy.’ But I tell you: Love your enemies and pray for those who persecute you, that you may be sons of your Father in heaven. He causes his sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous. If you love those who love you, what reward will you get? Are not even the tax collectors doing that? And if you greet only your brothers, what are you doing more than others? Do not even pagans do that? Be perfect, therefore, as your heavenly Father is perfect.  Matthew 5:43-48 NIV

This might well be called political action principle #1 according to Jesus.  The phrase “He causes his sun to rise” may be seen as alluding to the rule of God over all creation, which was established when God created the sun and appointed human beings as regents; and the phrase “sends rain on the righteous and the unrighteous” is a reminder that after the destructive rains of the great Genesis flood, God promised to never again enact such devastating judgment by that method.  Jesus specifically taught that his message was to instruct and to construct, but not to condemn - that a final judgment would come at the end of the age.  In God’s kingdom the good and the bad would be allowed to grow together until that judgment. His call to love is actually a call to model the love God demonstrates in relation to all of creation - it is a demand that we demonstrate love to both “the righteous and the unrighteous” in fulfilling the creation mandate.

Jesus said that he came to bring God’s truth and that God’s truth would make us free.  But at the same time he instructed that we should be attuned to maintaining good relationships with our fellows and should proactively restore relationships with others as part of our obligation toward God.  God’s truth should make us free to love others, even those who are opposed to us.  This ethic underlies the Apostle Paul’s instruction to his readers who were living in a pluralistic environment even more hostile than ours: “as far as it depends on you, live at peace with everyone.”  The Apostle Peter also said Christians should “show proper respect to everyone.”  Jennifer Moses describes how this lifestyle can look from an appreciative non-Christian perspective, but she also notes how Christians have been misunderstood and manipulated by political leaders.

When you see Christianity from this perspective, representing both the truth and love of God, it is very difficult to see people who publish “a newspaper ad citing Scripture verses condemning homosexuality” as representing the Gospel of Jesus Christ.  John Templeton holds these people up as exemplars of the right to express their religious convictions, but they can just as easily be viewed as people who are creating social agitation.  They may be exercising legal rights (which are now being understandably questioned), but they are not acting in Christian character.

Now, our society normally allows for a great deal of conflict and social agitation, but when widespread prejudice against a minority group becomes intense enough, then that group will receive protected status.  Unfortunately, enough prejudice against gays has already been sensed that in Pennsylvania they have been granted that status for their protection.  People who purchase newspaper ads against them create the need for that protection.

John Templeton warns:

Pennsylvania’s Hate Crimes Law is now a loaded revolver in the desk of any district attorney who wants to attempt to bring to Pennsylvania the sort of prosecutions we have seen in Sweden and Canada.

Templeton seems to be mainly worried about religious speech. But ironically, given the ardent advocacy against homosexuality by so many of the groups advocating for the Pennsylvania Marriage Protection Amendment, the more ominous threat for them is not so much that any of them will face prosecution by a district attorney, but that they are ensuring that someday judges will come to the same conclusion they did in Massachusetts - that only deep-seated prejudice would deny gays equal rights to marriage.  They are their own worst enemies!

In a March 2006 report on the tax implications of the religious activism for the Pennsylvania Marriage Protection Amendment, the New York Times reported that “Pennsylvania appears to be the sole state where advocacy groups are pouring so much into working with churches so early. The outcome of the effort, and the way the tax agency responds, could have an influence far beyond the state.”  The high level of political activism in Pennsylvania churches therefore appears to be a unique phenomenon, but like all human endeavors it is subject to the law of unintended consequences, and it is beginning to look like some of those consequences are self-defeating.

Pennsylvania Senator Bob Ronola and Representative Scott W. Boyd wrote in the Pittsburgh Post-Gazette (6/21/06) -

No one can legitimately claim that Pennsylvania’s Defense of Marriage Act will not be challenged in court. The testimony of gay-marriage advocates in Harrisburg confirms it is not a matter of if, but when.

These elected officials want the decision about gay marriage to be made by a public vote, not by judges.  The problem, as we have noted, is that the way the Christian political action groups are organizing their public campaigns is actually contributing to the perception of bias against homosexuals.  At root this misperception is occurring because so many politically active Christian leaders are taking one side in a polarized discussion rather than making proposals to solve the very real social problems that are involved in this conflict. They incessantly deny that gays have any legitimate problems to gripe about by countering with the repeated mantra that the proposed amendment will not take away any rights the gays already have. By emphasizing use of the alienating tools of political campaigns to appeal to fear and uncritical thinking, these campaigns end up resembling the crusades of the middle ages rather than the holy war the conservative Christians supporting them believe them to be.

John Templeton has put the advocates of the Pennsylvania Marriage Protection Amendment on notice: Pennsylvania has a law against discriminating against homosexuals (who are already legally denied the right to marry).  So the way they have been aggressively advocating for the amendment heightens the perception that only animus against gays would deny them the right to same-sex marriage.

If Pennsylvania judges reach the same conclusion the Massachusetts judges did when the challenge finally comes to court, it will be hard to say they are wrong given all the opposition against gays generated by this Christian political action. Such a ruling would appear even more outrageous here since it would go against an already established Pennsylvania law specifically outlawing gay marriage, whereas there was no such law in Massachusetts. But the louder that Pennsylvanians push for even stronger restrictions on gays than already exists, the more they are making the case that the underlying social dynamic is discrimination against them. It’s too bad that God’s truth has not yet made so many Christians free to love homosexuals, judging by the way they’ve been acting lately. 

Islam and the West

– we can work it out

By Sheikha Mozah bint Nasser al Missned

Pittsburgh Post-Gazette, Sunday, May 28, 2006

This article is an excerpt of a recent commencement address at Carnegie Mellon University.  My reason for commenting on it here is that it is an articulate expression of what I believe appeals to the values of most Americans, and which the older generation of conservative Christian leaders are clashing with when they promote polarizing legal solutions to social problems rather that seeking cooperative resolution of social conflicts.  Here we see someone from the Middle East who understands how Americans think better than some Americans leaders seem to acknowledge.

Sheikha Mozah bint Nasser al Missned is the wife of the emir of Qatar.  She makes her case well considering that this is a commencement address, but I am not concerned here with evaluating her arguments.  I primarily want to highlight the structure and assumptions underlying her argument, because that is what makes her case so appealing to the contemporary American mindset.  Her attempt to communicate with us can help us better understand ourselves.

1.  Paradigms focusing on conflict between opposing viewpoints may be artificial rather than real

 “We are told that the West and Islam are at war, that the ideologies of the West are incompatible with Islam, and that each civilization is trying to destroy the other. Depending on which side you stand, one or the other is the villain.”

“It is clear that the basic assumptions underlying the current narrative of confrontation is an engineered crisis, not an attitudinal one shared by most people in the world. The challenge lies upon young generations, critical thinkers like you, to deconstruct this faulty narrative before it becomes a prophecy.”

2.  A paradigm of cooperation is more beneficial to pursue when desired by all parties involved

“So I ask you to think outside the confines of the clash narrative and replace it with a narrative of cooperation. And surely there are many examples of cooperation between our societies.”

She gives several examples to show the support of large numbers of individual Muslims for cooperation.  “In short, we cannot blame the contemporary deficits in freedom and democracy in the Arab world on Islam. The blame is to fall squarely on the shoulders of governments in the region, often supported by foreign powers, whose interests in governing are not in the interests of the people.”

3.  Individuals must oppose pressures to maintain invalid conflict paradigms and pursue measures for cooperation

“You have a responsibility to do this and the first step is to deconstruct the stories that are pushing us into a state of panic and confrontation.

“Second, in the fine Carnegie tradition, think critically for yourselves.

“In the Muslim tradition we have a concept we call ijtihad, which means using fresh and imaginative thinking to forge innovative solutions. I invite you all to engage in a global ijtihad, Muslims and non-Muslims alike, to forge a new narrative of hope.

“And in the more blunt words of Andrew Carnegie himself: ‘He that cannot reason is a fool. He that will not is a bigot. He that dare not is a slave.’”

My point here is not to critique the assumptions, which I have paraphrased non-technically in my own words and numbered, but to simply note them, because I believe as a mindset they represent a social reality that leaders must face.  The primacy of cooperation is a natural outgrowth of globalization and the effects of the electronic networked environment as described by such commentators as Thomas Friedman in THE WORLD IS FLAT.   The emphasis on cooperation can be placed in an even broader historical context, as Thomas Cahill in THE DESIRE OF THE EVERLASTING HILLS argues that the worldwide tendency to support human rights and the struggle for peace is a long-reaching effect of the ministry of Jesus

What is especially noteworthy in this address is that the appeal is NOT to assume that cooperation is always the appropriate model, but to ONLY accept the conflict model when it is based on reliable facts.  Conflict may be necessary, but it must be based on well-established facts.  Cooperation is probably the default mode that appeals to most people, or the speech would fall on deaf ears. The optimistic appeal to rationalism to solve human problems is remarkable in an age many consider hopeless.

THIS CONTEMPORARY MINDSET EMBODIES A CRITIQUE OF THE MARRIAGE PROTECTION AMENDMENT MOVEMENT

We have already noted in a previous post that polls indicate that most evangelical young people differ from their elders on the politics of homosexuality.  They agree on the moral disapproval of homosexuality, but they basically express a “live and let live” philosophy toward homosexuals themselves.   This university commencement address suggests that our broader intellectual environment also embraces this more inclusivist approach to resolving social conflicts.  The specific problem it addresses is not really the issue.  One could substitute several different social problems into the same basic thought structure, and as long as the facts of the situation were valid, the appeal would be the same.  We live in age where people are aware that to define a problem is to begin to solve it, which is essentially the task of “deconstruction.”  Therefore, there is always a need to evaluate exactly what the issues are, and the approach presented in this speech is dominant today in making those evaluations:  Look for the power struggle. Look to see who is trying to oppress another group rather than let them share equally with everyone else.  People want to find “win-win” solutions whenever possible.  And sometimes they want to punish those they perceive to be the oppressors.

1. The imposition of truth onto others creates an adversarial posture when translated into social action

According to Aristotelian logic, something is either true or not true.  We are aware of the demise of absolutism in public discourse, but as witnessed by this address, there is still a valid appeal to be made to the standard of objective facts, which serve as a kind of absolute standard, however minimalist and debatable.  The Christian holds God’s Word as revealed in the Bible to be truth, and it too, like other “facts,” is subject to interpretation.  The basic problem for the Christian, however, is how to relate the truths of God’s Word in shared civil life with people who do not share a belief in God’s Word.  Do Christians limit their discussions to only the natural facts that all participants can observe?  Should they try to persuade non-believers of the wisdom of God’s Word?  Should they primarily keep their beliefs to themselves and vote for (1) what is closest to the “truth” as they see it, or (2) what appears to currently be best for the peace of the community, even if it does not represent the ideal?  Should they more aggressively seek to impose God’s Word on society? 

Throughout medieval Europe the church had the opportunity to impose Christian values on society to some extent, although not in a pure form since there was much amalgamation and adaptation, which was one of the ultimate motivators of the Protestant reformation.  So while Protestants were seeking to return to a more pristine earlier church purity, parallel efforts of renaissance thinkers were seeking to return to the more “pure” pagan origins of western culture.  The interaction of these two trends in the European Enlightenment gave birth to America, and today we see the offspring. 

The bottom line for politics in a pluralistic democracy such as America is compromise, not the imposition of truth by one group onto another. That is the ethos that the founders attempted to build into the U.S. Constitution, with all its checks and balances on power. When Christians in a democracy insist on more than their own right to proclaim and practice the truth as they see it, they will ultimately end up polarizing large numbers of people who do not agree with them. They are attempting to accomplish what the medieval church could not accomplish without becoming compromised, despite its privileged position in relation in society.  Law cannot ultimately be effective unless it is broadly accepted.

2. The indiscriminate use of natural law to defend the traditional value system invites “deconstruction”

In order to avoid the appeal to the Bible and religious arguments, Christians have used various forms of natural law logic to justify advocacy of marriage protection amendments, such as when they appeal to the natural instinct that male and female sexual relationships are the natural course of human development.  Natural law is seen as what every normal person recognizes as the normal state of nature. Since people may have an instinctive natural reaction against homosexuality, appeals of this type may be effective, but they may just as easily provoke homophobic reactions as justifiable reactions, once they are evaluated. The complexities of defining homophobia have therefore led one group to clarify it functionally as, “engaging in a behavior aimed at restricting the human rights of persons who have a homosexual orientation and/or who engages in homosexual behavior.” 

As I pointed out in a previous post, appealing to “nature” can just as easily be used to advocate for recognizing homosexuality as a natural option based on the persistence of this behavior throughout history when people become aware of this fact.  At the most basic level that can be shared by both believers and nonbelievers, natural law is simply the “law of reason” - the ability of humans to use their unique mental endowments to make judgments about what is right and good for life on earth. Making those judgments collectively is what politics is all about.  To try to set one group against another solely on the basis of natural law will ultimately lead to an analysis that concludes that one group is trying to suppress the other, and is therefore an unprofitable political strategy.

3. The inaccurate use of data to stereotype homosexuals undermines truth claims

Defenders of the marriage protection amendments usually do so as a means of opposing same sex marriage; and they oppose same sex marriage because of the danger posed by homosexuals.  It is here that they attempt to present objective facts that are open to public scrutiny.  It is also here that their case seems to be so open to criticism, as exemplified in a previous post.  Homosexuality can indeed be correlated with a great number of social problems, but that does not establish a valid cause-effect relationship. 

Christian leaders at the national level seem to have become so caught up in the conflict model that they demonstrate no interest in taking a broader, more objective  perspective.  They are apparently so enamored by the successful tactics of the larger conservative movement in winning elections, that they are hyper-focused on the goal of passing legislation to “protect” marriage, as if the one accomplishment must automatically be followed by the other.  One has to wonder if they still maintain the ministry of reconciliation as their highest priority.   

The Apostle Paul’s approach to what some now call the “culture wars” was to “take captive every thought to make it obedient to Christ” through reasoning accessible to the unbelieving mind.  His ministry style was to persuade.   His appeal was always to what could be recognized by any reasonable person.  That is how effective Christian ministry is performed according to Paul.  This suggests that any claim about the dangers of homosexuality should be made in a forum where they can be publicly critiqued and not simply promulgated without significant credible evidence.

4. Promoting social conflict rather than cooperation can only possibly be justified by widely shared values

This principle should be obvious, assuming that Christians take seriously the apostolic injunction, “Be careful to do what is right in the eyes of everybody. If it is possible, as far as it depends on you, live at peace with everyone.” Advocates of marriage protection amendments like to point out that the majority of the American public agrees that marriage should be limited to a relationship between a man and a woman.  They fail to note that the majority also believes that homosexuals should have some degree of marriage rights, and also believes that homosexuals should be protected from discrimination.  An average member of the public may vote for a marriage amendment because they are not aware of all the intricacies of its meaning when they see it on the ballot.  It may seem a lot simpler than it really is.  But when it comes to working it out in legal practice, the way the public actually views it will eventually hold sway.

5. Promoting cooperation rather than conflict is the preferred method of resolving social conflicts

In 2005, The Council on Family Law proposed that no new laws affecting the family be made for five years.  They suggested that government commissions be appointed to study the issues and make proposals.  This would allow for input from many diverse viewpoints and would constitute a more cooperative approach to resolving the conflicts over marriage rights.  People advocating the marriage protection amendments are claiming that their way is the only way of protecting marriage in America, when this proposal from this study group demonstrates that there really is another approach that could be pursued.  And their suggestion is much more in keeping with the way most Americans would approve that solutions to conflicts should be sought.

There is a great deal of polarization in the debate over same-sex marriage.  The need is find a way to creatively resolve the conflict in a way that meets the needs of individuals, communities and the nation.  Christians should be known for their efforts toward the peaceful resolution of the conflict.  Unfortunately, at present they are primarily known for accelerating the conflict.

Questions and Answers:

What’s Wrong With Letting

Same-Sex Couples “Marry?”

Issue No.: 256

by Peter Sprigg

Family Research Council

The Family Research Council was founded in 1983 with founding board members including James Dobson,  Armand Nicholoi Jr., and George Rekers, to help “drive the national debate on family issues.”  This article by one of the Council’s Vice Presidents, Peter Sprigg, is presented as a unified thesis in question and answer format.  This allows it to hold together with some coherence while at the same time being segmented into “talking points” that readers can use in separate sound bites for political purposes.  The opening paragraphs present a clear thesis, but the twelve-page document takes many tangential side paths that sometimes obscure the clarity of that focus.

My intent here is to focus clearly on the main points in the presentation that support its thesis.  I have reworded the thesis below to give the intent of the title.  Even though the title is worded as a question, it is clearly intended as a declarative statement.  I will select out the main parts of the text that develop the arguments and then analyze each element of the argument and evaluate its effectiveness.  This method will allow us to stay focused on the thought structure of this text rather than being distracted by its myriad of detail.

THESIS = It is wrong to let same-sex couples “marry”

ARGUMENT #1  = Homosexual relationships are not marriage

ARGUMENT #2 = Homosexual relationships are harmful

“Either argument, standing alone, is sufficient to reject the claim that same-sex unions should be granted the legal status of marriage.”

Argument #1 - Homosexual relationships

are not marriage

1^st POINT - “Marriage is a fundamental human institution that predates the law…  Laws relating to marriage merely recognize and regulate an institution that already exists.” — This is a potentially misleading statement, but actually exposes the worldview conflict with many of those who support same-sex marriage. On the one hand the statement is trivial since any fundamental human institution would be expected to predate all  human laws, since laws of necessity have been formed by legal bodies that each began relatively recently, whereas humanity has been around for a very long time.  What can be misleading, however, and makes this statement so significant, is that the concept of “marriage” around the globe was not uniform before the creation of formal laws in various civilizations began to appear.  The variety of family arrangements that predate legal developments was much more diverse than what we experience today.  So any definition of marriage that tries to limit itself to one particular formula will be questionable to the modern mind. 

2^nd POINT - What is marriage, and what is the purpose of marriage?  Two scholars quoted here demonstrate that social recognition and social reinforcement of obligations are essential to the emergence and definition of legally sanctioned marriage:

“‘Because heterosexuality is directly related to both reproduction and survival, … every human societ[y] has had to promote it actively . … Heterosexuality is always fostered by a cultural norm’ that limits marriage to unions of men and women.” (quoting Paul Nathanson)

“Marriage across societies is a public sexual union that creates kinship obligations and sharing of resources between men, women, and the children their sexual union may produce.” (quoting Maggie Gallagher)

The main point here is that legally sanctioned marriage is the universal method “to ensure the reproduction of a healthy, successful society.”  The problem this creates in a society such as ours is that a great many social benefits have accrued to marriage because of that reproductive benefit to society, and now that reproduction has been made manageable to the point that couples may choose not to have children, the very basis for these rights is in question.  Furthermore, unmarried couples may have child-rearing functions for which it would benefit society if they had a higher degree of social support in terms of these same benefits. 

Sprigg explains that, “Admittedly, society’s interest in marriages that do not produce children is less than its interest in marriages that result in the reproduction of the species. However, we still recognize childless marriages because it would be an invasion of a heterosexual couple’s privacy to require that they prove their intent or ability to bear children.”  He demeans the importance of adoption - the care of the fatherless and orphans, to put it in biblical terms - by saying, “There is no reason, though, to extend “marriage” to same-sex couples, which are of a structural type (two men or two women) that is incapable–ever, under any circumstances, regardless of age, health, or intent–of producing babies naturally.”  He is saying, in effect, that supporting gay families with these fatherless children and orphans is not a worthy social objective.  One must keep in focus the argument that “marriage rights” by definition, are specifically intended, not to endorse or support individual sexual or social functioning, but “to ensure the reproduction of a healthy, successful society.”

3^rd POINT -  Reasons why homosexuals should be denied the right to same-sex marriage

REASON #1 - “Homosexual individuals already have exactly the same “right” to marry as anyone else.  … the fact that a tiny but vocal minority of Americans desire to have someone of the same sex as a partner does not mean that they have a “right” to do so”

This “tiny but vocal minority of Americans” who desire same-sex marriage rights is actually an international phenomenon.  The reference to homosexuals as a small minority group brings to mind the biblical charge to care for the needs of aliens, the strangers in one’s country - because as a non-integrated minority group they are in need of special protection. When laws are directed against a particular group such as homosexuals, they only serve to alienate them and isolate them rather than integrate them into society.

Sprigg does rightly recognize that “the entire ‘gay liberation’ movement has been but a part of the larger sexual liberation movement whose fundamental tenet is that anybody should be able to have sex with anybody they want any time they want.”  And it could be added that “sexual liberation” is just part of the larger movement toward individual freedom that began with the Enlightenment and also spawned the birth of the United States.  This is the world we live in, and coping with it cannot be “fixed” with legislated solutions such as marriage amendments. 

Another important dimension of Sprigg’s answer from the Christian perspective is the growing sensitivity at the popular level that “the winners write history.”  This means that all appeals to the legitimacy of precedent are suspect and are not automatically assumed to be right and just.  Just because the law says only men and women can marry does not make it right in the eyes of most thinking people.  Using this kind of argument in today’s world demonstrates the arrogance of the “winners” mentality to most people.  Arguments such as this invite conflict rather than speaking the truth with love.

REASON #2 - “Society grants benefits to marriage because marriage has benefits for society–including, but not limited to, the reproduction of the species ….  Homosexual relationships, on the other hand, have no comparable benefit for society, and in fact impose substantial costs on society. The fact that AIDS is at least ten times more common among men who have sex with men than among the general population is but one example.”

This argument is more an assertion than an argument, and seems to imply that a cost-benefit analysis would settle the question of whether homosexual relationships would benefit society.  Homosexual relationships where partners do support each other financially would benefit society, and homosexual families that raised children could, in principle, help with the “reproduction of the species.”  In Africa, AIDS is more a heterosexual than a homosexual problem, so I wonder if Sprigg means to imply that in Africa heterosexual relationships should not be granted the benefits of marriage?  

REASON #3 - “The benefits of marriage do not flow simply from the presence of two people and government recognition of their relationship. Instead, they flow from the inherent complementarity of the sexes and the power of lifelong commitment. The first of these is rejected outright by homosexuals, and the second is far less common among them.”

Here Sprigg introduces two entirely new elements into what was otherwise a carefully reasoned thesis: (1) the inherent complementarity of the sexes, and (2) the power of lifelong commitment.  Both of these demonstrate that the core of Sprigg’s argument is rooted in the Judeo-Christian tradition.  The first element is an appeal to the traditional Christian doctrine of natural law. The second is the Christian belief that marriage is intended to be a lifelong commitment.  Neither one is explained or defended, but simply asserted.  The natural law argument is important, but would need separate treatment to deal with it adequately.  For Sprigg’s thesis it must be minimized here, however, because he does not explain what he means, makes no case to defend this proposition, and the issue is too complex to accept the statement at face value.

It is worth noting in passing, however, that his appeal to natural law can lead neutral observers into directions biblically based Christians would not approve.   As Sprigg says, nature precedes law - we just recognize reality and regulate it for human good.  The sexual attraction between men and women is one of those realities, and that leads to marriage laws.  But given this framework, the persistence of homosexual practice over the centuries also argues that there is something “natural” about it.  Using this kind of “natural law” framework, then, one should expect to see all kinds of aberrant behavior since homosexuals have not been allowed to develop mainstream lifestyles over the centuries.  This way of thinking is the result of the Enlightenment mindset and is an important part of the American mindset, and it must be addressed.  Simply countering it with the opposing biblical statements does not change this worldview.  But as I said, this is too big a topic to discuss meaningfully here.

The second element regarding the power of a lifelong commitment being one of the two driving forces which result in the social benefits of marriage for society is more significant because it is more immediately transparent how this core belief relates to current political reality.  John Witte, Jr., reports that “a typical state statute in the nineteenth century defined marriage as a permanent monogamous union between a fit man and a fit woman of the age of consent, designed for mutual love and support and for mutual procreation and protection.”   Marriage patterns today no longer demonstrate that commitment.

It is in this context that we see the proposed Federal marriage amendment, which reads as follows:

“Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

Given the Christian roots of marriage law and the recognition of the permanence of marriage in so many state laws, the absence of this concept here means this proposed Federal amendment actually represents a step backward, and undercuts Sprigg’s case for the benefits of marriage for society.  Since marriage is no longer proposed to be a permanent union, it is no longer valid to assume social rights and benefits due to this characteristic of marriage, which he claims is one of the two driving forces that yield the benefits of marriage for society.  Even if this amendment is not passed, the fact that it has been proposed without the concept of the presumed permanence of the marriage bond is testimony that marriage has indeed changed significantly in the United States.

Argument #2 - Homosexual relationships

are harmful

PROPOSED EVIDENCE - Homosexual men and women experience higher rates of many diseases that are often transmitted sexually.   “Much of the reason for high rates of sexually transmitted diseases among homosexuals lies in their higher rates of promiscuous sexual behavior.”  

No actual evidence is presented for this claim that homosexuals are more promiscuous than heterosexuals. It is assumed that their infection rates demonstrate this fact, but that is not a valid assumption.  One thing is certain though - homosexuals don’t commit adultery in most cases, since they have not been allowed to marry.  Rates of premarital sex are fairly high among heterosexuals, so it might be difficult to contrast them to homosexuals.  Rates of extramarital sex are declining though, perhaps due to the rise in the divorce rate, which frees heterosexuals for other relationships. The claim that homosexuals are more promiscuous than heterosexuals is obviously an unsubstantiated accusation.

PROPOSED EVIDENCE - “Various research studies have found that homosexuals have higher rates of alcohol abuse, drug abuse, nicotine dependence, depression, and suicide.“

Assuming this report to be accurate, are these problems due to their sexual orientation, to the lack of social models to guide homosexuals into successful living, or to the stress of being discriminated against or living with the fear of discrimination?  These are matters of dispute.  After much controversial debate, the American Psychological Association removed homosexuality from the category of psychological disorder because the professional consensus was that homosexuality itself could not be assumed to be the originating problem for the mental heath issues of homosexuals.  As with any organizational decision, not every professional agreed, but we need to respect the professional consensus that these are the kinds of social problems that call for deeper study, and that one should not make hasty generalizations and casually conclude that homosexuality itself has caused these problems.

PROPOSED EVIDENCE - “If ‘discrimination’ were the cause of homosexuals’ mental health problems, then one would expect those problems to be much less common in cities or countries, like San Francisco or the Netherlands, where homosexuality has achieved the highest levels of acceptance.  In fact, the opposite is the case. In places where homosexuality is widely accepted, the physical and mental health problems of homosexuals are greater, not less.”

This statement reflects a profound lack of insight into the effect of the social environment on the development of human personality.  For example, how long has homosexuality been “widely accepted” in San Francisco?  How many generations?  How many gays who have grown up their entire life in a totally accepting San Francisco environment have been studied for their mental health status?  Would knowing that they would face discrimination in other cities affect their outlook on life?  Does Sprigg think they should be happy in their conclave there while all other Americans are free to move about wherever they want without fear?

PROPOSED EVIDENCE - “Homosexual men are far more likely to engage in child sexual abuse than are heterosexuals.”

Here Sprigg shows his oversimplification of statistical data and again makes us mistrust his judgment in such matters.  He says in support for the above statement that, “The evidence for this lies in the findings that: 

1. Almost all child sexual abuse is committed by men; and
2. Less than three percent of American men identify themselves as homosexual; yet
3. Nearly a third of all cases of child sexual abuse are homosexual in nature (that is, they involve men molesting boys)”

Sprigg concludes that this final fact verifies “a rate of homosexual child abuse about ten times higher than one would expect based on the first two facts.”   Sprigg apparently does not believe that heterosexuals ever commit homosexual acts.  In response to claims “that men who molest boys are not usually homosexual in their adult sexual orientation,” Sprigg quotes a study of convicted child molesters that found that “86 percent of offenders against males described themselves as homosexual or bisexual.”   Here Sprigg makes the questionable assumption that the characteristics of a group of convicts accurately represent the total group of people who have molested children.  Furthermore, the convict group includes both bisexuals and homosexuals, so it does not support his argument that it is homosexuals who are the ones more likely to engage in child sexual abuse.  To follow Sprigg’s logic, it might actually be that most child molesters are bisexuals.  The facts are that research does not support a causal connection between homosexuality and child abuse.

PROPOSED EVIDENCE -

1. Children of lesbians are less likely to conform to traditional gender norms.
2. Children of lesbians are more likely to engage in homosexual behavior.
3. Daughters of lesbians are ‘more sexually adventurous and less chaste.’
4. Lesbian “co-parent relationships” are more likely to end than heterosexual ones

The significance of the first point is ambiguous, since this result might have more to do with lack of contact with fathers, in which case it could also occur when the mother is heterosexual.  The second and third points may be true and if so would be consistent with the Christian understanding of life without God.  But from the non-Christian viewpoint that must be respected in a pluralistic society, the first three points are simply behavior from a different value system, and the fourth point, as we have seen above, has already been surrendered by the public at large, since the permanence of marriage is no longer a contested point.  It is not clear either where the comparison is made when comparing lesbian “co-parent relationships.”   The only valid comparison would be between unmarried heterosexual co-parent relationships, not with married relationships.  Married relationships, by definition, are enforced by a social contract in which there are potential penalties if one leaves, so that helps preserve them.

CONCLUSIONS

 1^st CONCLUSION - “And now there is social and political pressure to redefine what constitutes marriage itself. What grounds does anyone have for thinking that the consequences of that radical social revolution, unprecedented in human history, would be any more positive than the consequences of the much less sweeping changes already described?” [the divorce revolution;  the sexual revolution; the lost concept that childbearing should be confined to marriage;  the pornography revolution]

As a Christian, I find it impossible to object to the sentiments expressed here since we are witnessing the wages of sin in real time.  There are no grounds for optimism on the basis of human behavior apart from God.  That is the essential message of the Bible.  However, we need to recognize that creating restrictive laws is not necessarily the best solution to human problems.  The Apostle Peter’s guidance in a similarly morally hostile environment was: “it is God’s will that by doing good you should silence the ignorant talk of foolish men. Live as free men, but do not use your freedom as a cover-up for evil; live as servants of God. Show proper respect to everyone: Love the brotherhood of believers, fear God, honor the king.”  This law-abiding approach to pagan civil life in which respect is demonstrated toward everybody, regardless of their moral behavior, is consistent with the Apostle Paul’s instruction that “requests, prayers, intercession and thanksgiving be made for everyone–for kings and all those in authority, that we may live peaceful and quiet lives in all godliness and holiness. This is good, and pleases God our Savior, who wants all men to be saved and to come to a knowledge of the truth.”  As will be seen in the larger context, these Apostles are suggesting that when Christians are free to live godly lives, then others will have a better chance to come to know God because of their faithful witness.  This further suggests that religious freedom should be the highest legal priority for Christian political action in governments where citizen participation is possible.  But the Apostles are also counseling that developing a reputation for respectful treatment of unbelievers is foundational to the Christian witness.  How this translates into modern literary and political culture is the challenge we face today.  We do recognize, however, that if we want freedom for our values, we must grant it for others, as well.

2^nd CONCLUSION - “Since homosexual behavior is directly associated with higher rates of promiscuity, physical disease, mental illness, substance abuse, child sexual abuse, and domestic violence, there is no reason to reward such behavior by granting it society’s ultimate affirmation–the status of civil marriage–or any of the benefits of marriage.”

This statement uses guilt by association to appeal to emotions rather than to reason, and thereby functions in an inflammatory and destructive fashion rather than being informative and serving to edify readers.  As we have seen in the evaluation of the evidence presented in Sprigg’s article, the case presented there is quite flimsy, and certainly not strong enough for these vehement remarks and this extensive conclusion.

The Christian moral message apparently is getting through to evangelical young people, according to a “Hamilton College Gay Issues” nation-wide poll of high school seniors released in 2001, but they do not seem to adhere to the political agenda of their elders if one reads the results-

“The survey found that 30% of the students, mainly “highly religious” evangelical Christians, could be characterized as “anti-homosexual.” One professor who conducted the survey said: “Their views are firmly rooted, and unlikely to change real [sic] soon.” However, even among the evangelical Christians, 80% supported hate crime legislation and half said homosexuals should be accepted by society.”

We look at the religious leaders who opposed Jesus in the Gospels and wonder how they could be so obtuse, but  then we see see remarks like this one by Sprigg and we realize that we are all subject to these same human foibles.  The challenge to our spiritual mettle is to question whether we are open to God’s leading or are really pursuing our own will, an ongoing evaluation process that demands regular self examination.  The Apostle Paul said, “he who loves his fellowman has fulfilled the law. …love is the fulfillment of the law.”    Part of fulfilling the law of love is speaking the truth about one’s neighbor, and doing it in a way the promotes peace and the good of the community.

The kind of rhetoric used here, and which has been used in countless other forums in promoting the marriage protection amendments, can only provide fodder for the claim that homosexual orientation needs legal protection against discrimination.

3^rd CONCLUSION - “Amending the Constitution now appears to be the only way to achieve two indispensable goals:

• preserve a uniform national standard for something so fundamental to our civilization as the definition of marriage; and
• prevent the imposition of same-sex civil “marriage” or marital benefits through acts of undemocratic judicial tyranny.”

This conclusion challenges readers to make at least three important decisions, which I respond to as follows–

1. Preserving the definition of marriage is worth pursuing on the purely pragmatic grounds of promoting the reproductive functions of marriage presented in Sprigg’s presentation.  If one takes a broader historical perspective from the Enlightenment on, we can see that in the area of marriage and family Europe has experienced the negative effects of modernity earlier than the USA.  That means we can predict that if events evolve “naturally,” we can expect that the USA will eventually also experience declining or even negative birth rates as they are in Europe.  It might therefore be prudent to develop national policies that encourage the growth and support of families capable of reproducing themselves.  Note that this does not imply excluding other types of families from any and all types of marriage rights.

2. Preventing homosexual couples from obtaining marriage rights and benefits should not be a social objective. When laws and amendments are presented in this fashion to the American people–that they are intended to exclude a certain group of people–then those laws will be rejected.  Most Americans support the definition of marriage as a relationship between men and women, but they will not knowingly exclude homosexuals from legitimate rights needed for equal standing with others in similar situations.  By adding in the “exclusion of rights factor” in marriage protection amendments, Christians are not only endangering the definition of marriage if these laws get overruled, they are also building the case for anti-discrimination laws protecting homosexual orientation.  It becomes quite obvious that if so many people are intent on passing laws aimed at excluding a certain group of people from certain rights, then that group must need protection.

3.  The need to amend the Constitution “NOW” is not desirable and is probably counterproductive.

Maggie Gallagher is referenced a number of times in this report.  She also helped produce The Future of Family Law: Law and the Marriage Crisis in North America (2005).  This study was a joint project with other scholars who together found some disturbing and conflicting trends in family law in the United States and Canada, including the following–

The Current Directions of Family Law

1. Equivalence Between Cohabitation and Marriage

2. Redefining Marriage as a Couple-Centered Bond

3. Disestablishment, or the Separation of Marriage and State (getting the state “out of the marriage business”)

4. Why Just Two?  (Challenges to the two-person definition of marriage are only a matter of time. Legal scholars are now publishing articles that make this case)

Children: The Missing Piece

What is missing in new proposals in family law is any real understanding of the central role of marriage as a social institution in protecting the well-being of children.

Clashing Models of Marriage

1.  The Conjugal View 

Theorists of liberal democracy from John Locke to John Rawls have underlined the important, generative work that conjugal marriage does for society. This normative model of marriage is under attack in these recent reports.

2. The Close Relationship Model

This competing vision of marriage has emerged in recent decades. In it, marriage is a private relationship between two people created primarily to satisfy the needs of adults. If children arise from the union, so be it, but marriage and children are not seen as intrinsically connected.

Conclusion

Family law today appears to be embracing a big new idea. The idea is that marriage is only a close personal relationship between adults, and no longer a prochild social institution. 

The finding of this report that particularly affects our discussion here is that the reproductive purpose of marriage has now lost its preeminence in marriage law.  Yet that was the main foundation supporting the thesis of Peter Sprigg’s paper.  If law simply reflects the practices of the people as Sprigg pointed out, and if marriage is no longer viewed as based on procreation, then most of the case for preserving the definition of marriage as a relationship between men and women has already been changed in actual practice.  To try to change the highest law in an attempt to stem the groundswell at the grassroots is not only undemocratic, it is ultimately doomed to failure since it will be undermined in actual practice. Attempts to foist laws onto the unwilling can only lead to misunderstandings and ill will.

This same report from the Council on Family Law also includes the following recommendations-

A minimum five-year moratorium should be placed on any changes to the laws affecting the definition of marriage. The purpose of the moratorium is to allow for informed democratic consultation and deliberation.

Governments should foster more democratic consultation and deliberation on the question of the role of marriage in society. Broad-based representative commissions should be formed to explore public interest concerns in the area of marriage and family life. These commissions should consist primarily of those affected by changes to the institution of marriage: ordinary citizens, cultural communities, marriage and family life associations, and religious communities, rather than lawyers and academics.

It seems to me that these are the kinds of prudent efforts that Christians should be promoting to address the marriage crisis in our society.  Forums such as these could help promote more reasoned discussion of the issues facing both traditional and non-traditional families.  Promoting marriage protection amendments is only fostering polarization, greater misunderstanding, and the greater likelihood of restrictions on religious freedom due to complications from the consequent need to protect homosexuals from so much negative stereotyping.

Banned in Boston

The coming conflict between

same-sex marriage and religious

liberty

by Maggie Gallagher

THE WEEKLY STANDARD 05/15/2006, Volume 011, Issue 33

Here’s the problem in a nutshell:  “Massachusetts law prohibited ‘orientation discrimination’ over a decade ago.”  Then in November 2003, in the Goodridge case, the Massachusetts Supreme Judicial Court ruled that it was discriminatory to limit “marriage” to just opposite sexed partners, and ordered that same-sex couples be permitted to marry.  “From there, it was only a short step to the headline ‘State Putting Church Out of Adoption Business,’” because Catholic Charities could not find a legal way to maintain its religious conviction that children in their care should only be adopted by heterosexual couples.

This led Maggie Gallagher, president of the Institute for Marriage and Public Policy to ask the question which her article seeks to answer, “Is the fate of Catholic Charities of Boston an aberration or a sign of things to come?“  To find answers, she reviews the responses of ten diverse scholars who participated in a recent forum on the likely impact of gay marriage on religious freedom, sponsored by the Becket Fund for Religious Liberty. The forum sponsor summarized their conclusions by saying: “All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming.”

There is no point in rehashing the scenarios presented by these scholars.  Anyone can see what they have to say by reading Maggie Gallagher’s article. My concern here is to extract what we can draw from these scenarios to evaluate the current movement by many religious conservatives to pass state marriage protection amendments in an effort to preserve traditional morality as the law of the land.  All quotations referenced here are from this article.  Readers should consult Maggie Gallagher’s article to view them in their original context.

The situation in Massachusetts is unique in that discrimination against sexual orientation was prohibited before same-sex marriage was permitted.  At the national level civil rights are protected by the Bill of Rights, and sexual orientation is not currently a protected category.  Marriage law is generally assigned to the states.  But states also can assign other rights, although this article does note that, “Even the Massachusetts supreme court… declined to rule explicitly that orientation is a protected class.”  Although the problems experienced in Massachusetts reflect their unique situation, the principles discussed by these scholars are applicable to the entire nation.

One of the reasons that state marriage protection laws are ultimately tenuous is that they will be trumped by any Federal law or amendment that grants “protected status” to sexual orientation.  These state amendments are specifically designed to prevent homosexuals from obtaining the rights associated with marriage. “Counting the cost” of enacting these amendments must include the likely outcome in terms of public opinion and sentiment. When the Massachusetts Supreme Court ordered gay marriage, “The majority ruled that only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently.”  The more that organized groups earn their reputation by fighting against rights for gay couples, the more they are reinforcing the public perception of a need for “protection” of gays from such people.

“To get to the point where the law prohibits discrimination, Feldblum [a gay rights scholar sympathetic to religious rights] says, ‘there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do. There has to be enough outrage to bypass that basic default mode in America.’”

Back in the days of Jerry Falwell’s Moral Majority, there was the genuine belief that most Americans held to a common set of moral beliefs.  But the devil is in the details, and when it comes to political agreements, there is precious little political moral majority.  Polls have recorded how most people think on gay rights issues - there is strong support for at least some marriage-related rights, but most also think gays are not entitled to marriage.  Any reasonable person looking at the details of these poll results can predict which way this values conflict will eventually tilt in a pluralistic society if the debate is framed as only about whether gays can obtain rights via same-sex marriage, which is the way it will have to be dealt with by government under our Constitution if no compromise proposals are forthcoming - and these marriage protection amendments prevent such compromises.  Many cohabiting couples are not married, so the institution of marriage is not as valued as it used to be.  The primary concern of the public is really about rights, not marriage.  But polarizing campaigns are forcing the legal debate to be about gay marriage rather than about rights.

In contrast to the Moral Majority approach, nowadays there is a more surreptitious tactic being employed by some right wing conservatives who are capitalizing on the social infrastructure of religious institutions.  Conservative Christians form an identifiable social network because of their association with various religious groups, so they are easy to mobilize with slick promotion and convincing position papers that do not encourage critical dialogue and interaction with divergent viewpoints within the Christian tradition.  They become a targeted market for political partisans; and local church leaders tend to either buy into the movement for a marriage protection amendment or are more interested in maintaining peace and avoid the issue publicly, thus allowing the more aggressive elements to become dominant.  Mobilizing these Christians to contact their legislators can give the appearance of widespread public support, but in reality these efforts do not lead to a representative sampling of the overall population.  A little less than half the US population claim to attend church any given week, and even those figures are questionably high; but in any case, the targeting method employed leads primarily to the most conservative segments of the churched public, which is far less than a majority of the population, and can only represent one segment of the wide range of public opinion.

Many Christians simply have never thought any deeper than the moral issue, and do not have a clear understanding of the function of government in our country.  The failure to make key distinctions at the grass roots - the failure of Christians to distinguish between the moral issue and the role of civil government in the United States - leads to the too facile conclusion by outside observers that Christians are obsessed with homosexuality and/or fearful of homosexuals.  That is not necessarily the case, although in some cases these political movements are actually fostering such fear.

Maggie Gallagher says polls suggest that the majority of Americans would support an anti-discrimination law at the federal level.  Among other effects, such a law would affect tax-exempt status.  “In 1971, the IRS issued a decision redefining the tax exemption as a public endorsement or subsidy. This meant that the IRS would strip an organization of its exempt status if its purposes, although legal, were ‘contrary to public policy.’”

“Right now, Turley [a First Amendment specialist] notes, there is no clear federal public policy against discrimination on the basis of sexual orientation. But such a policy is imminent, he believes, most likely within the decade. Once that occurs, he agrees with Robin Wilson [a family law and health care expert]: ‘Any organization that engaged in such discrimination as a matter of faith would be in a position similar to Bob Jones University.’” [i.e. they will loose tax exempt status]

It is just a matter of time before the less organized, general mass of Americans begins to have their viewpoints heard.  The aggressive conservative right may make headway now in getting marriage protection amendments passed, but it will be at the cost of generating sympathy for anti-discrimination laws at the Federal level later on.  Once they realize what is happening, most Americans will probably react like one of the scholars in this forum:  “He [Stern, a lawyer specializing in religious liberty cases] blames religious conservatives for adopting the wrong political strategy on gay issues. “Live and let live,” he tells me, is the only thing around the world that works.”  I do not mean to fully defend this attitude, but we need to face the fact that this is the general trend among Americans.  Despite its benefits in promoting appropriate diversity, when this attitude dominates in a mindless way, in a way that does not allow for truly conflicting options to coexist, it has the surface appearance of promoting tolerance for all viewpoints, but can simply reflect narcissistic self-centeredness and a lack of conviction and concern about the values important for thriving community development and national survival.  It can end up meaning you must not contradict what anyone else believes, especially if they are in a minority group.

“How much of the coming threat to religious liberty actually stems from same-sex marriage? These experts’ comments make clear that it is not only gay marriage, but also the set of ideas that leads to gay marriage - the insistence on one specific vision of gay rights - that has placed church and state on a collision course. Once sexual orientation is conceptualized as a protected status on a par with race, traditional religions that condemn homosexual conduct will face increasing legal pressures regardless of what courts and Congress do about marriage itself.”

Banned in Boston serves as a “red flag” to all those pushing marriage protection amendments.  For Christians involved in this movement, they need to consider their impact on society.  The conservative Christian movement has supported all kinds of social programs for the disadvantaged, but in relation to homosexuals they have primarily only focused on responding to the AIDS problem and efforts to assist gays who want to leave the homosexual lifestyle.  Conservative Christians do not appear to have made significant attempts to work with gays to achieve workable legislative options to meet their needs, and now it might even be too late for such efforts because of all the polarization. 

Granted that homosexual practice, like heterosexual practice, from a legal perspective is a “chosen” option; and granted that homosexual practice from the perspective of God’s intentions for human sexuality is out of bounds; there is still no reasonable basis within the framework of U.S. Constitutional law for denying rights needed by homosexual couples to function in our society as long as the religious rights of others are also protected. 

Furthermore, the way religious people are seeking to prevent homosexuals from achieving those rights is setting up a backlash that may make it impossible to build protections for religious freedoms in the future.  When conflict resolution is not sought in a win/win manner, but rather in a win/lose strategy, then there will be losers.  And as it stands now with the adversarial approach being taken by both sides - with “very few signs of a willingness to compromise on either side” - the prediction by all these experts is that religious rights are going to be endangered.  And it looks like the danger is not going to be so much from gay marriage at the state level as it is from the protection of sexual orientation at the Federal level.

State Representative shows how

the Pennsylvania Marriage

Protection Amendment will

victimize unmarried couples

Pittsburgh Post-Gazette, Wednesday, April 12, 2006

Why the Pennsylvania Constitution needs a Marriage Protection Amendment

By State Rep. Daryl Metcalfe, a Republican from Butler PA

In this advocacy piece in the Pittsburgh Post-Gazette, Mr. Metcalfe defends his role in promoting the following proposed amendment to the Pennsylvania Constitution.

“Only a marriage between one man and one woman shall be valid or recognized as a marriage in this commonwealth, and neither the commonwealth nor any of its political subdivisions shall create or recognize a legal status identical or substantially equivalent to that of marriage for unmarried individuals.”

The first clause just states the status quo and what most people instinctively believe: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this commonwealth.” 

It is the second clause that raises questions about the intent of this amendment: “neither the commonwealth nor any of its political subdivisions shall create or recognize a legal status identical or substantially equivalent to that of marriage for unmarried individuals.”

Mr. Metcalfe finally gets around to explaining the practical implications of this second clause when he states:

“House Bill 2381 does not take away any rights currently enjoyed by unmarried opposite-sex or same-sex couples, nor does it provide them with any new rights. These couples will still be able to pursue any legal protection currently available to them, such as a living will, a power of attorney, a last will and testament or a health care proxy for medical decisions. It also does not prohibit employers from being able to extend health-care benefits to cohabiting partners.” (emphasis added)

This makes it perfectly clear that the intent of this amendment is to make it difficult if not impossible for unmarried couples to obtain rights similar to those that married people enjoy.  To seek “a legal status identical or substantially equivalent to that of marriage” is entirely about being recognized as a social unit for the basis of being granted socially recognized rights and privileges, as well as being expected to undertake certain responsibilities.

It does not take more than five minutes on the internet to discover that hundreds of rights have accrued to marriage over the years.  In 1997 the Government Accounting Office made a complete list of 1,049 federal rights.  In 2004, this list was updated to yield “a total of 1,138 provisions in which marital status is a factor in determining benefits, rights, and privileges.”  Not every benefit on this list applies to every married couple, and most would, strictly speaking, not be considered “benefits,” but Federal law nevertheless does bestow a great number of important benefits to marriage.

By and large these rights accrue whenever qualified people marry and at any age, even when elderly, and whether or not they intend to have children.  There is no defensible reason why being married in every case benefits society in a way that justifies these carte blanche rights for the married AND does NOT justify them for those in ANY OTHER CATEGORY of permanently committed couple. But this proposed amendment excludes any other category of committed couple from receiving these benefits.

A more helpful summary of key rights at issue is presented from a gay perspective at:

http://scribbling.net/1049-federal-rights-depend-on-marital-status

Check out this link for the original version.  The annotated list that follows is reworded to generalize the rights issues as much as possible to all unmarried couples, because common law marriages have already been abolished in Pennsylvania.  Here are the especially difficult rights issues identified on this website–

Hospital Visitation Rights

Married couples have the automatic right to visit each other in the hospital and make medical decisions. Same sex couples can be denied the right to visit a sick or injured partner in the hospital.  They may have obtained some rights where they live, but when traveling to other areas they might not have those rights.

Health insurance

Many public and private employers provide medical coverage to the legal spouses of their employees, but most employers do not provide coverage to the same-sex partners of their employees. LGBT employees who do receive health coverage for their same-sex partners must pay federal income taxes on the value of the insurance. Same-sex couples cannot even buy a family health insurance policy on the open market.

Spousal Privilege

Spousal privilege, granted to married couples, is the right of a person to refuse to testify against their spouse in the court of law.  That means if one’s unmarried partner was sued, they could be called on to testify against them. And every email, phone call, letter, IM and conversation between them would not be protected by spousal privilege, and could be entered into evidence.

Inheritance rights

When a married person’s spouse dies, the survivor can automatically inherit a substantial share from the deceased spouse’s estate regardless of whether a will exists. Without marriage, a same-sex partner has no automatic right to inherit.  Only writing a will can guarantee that one’s partner will inherit from the other if one dies. How many people do you know under thirty who have a will?

Family leave

Married workers in many workplaces are legally entitled to unpaid leave from their jobs to care for an ill spouse but workers with same-sex partners have no right to family leave.

Pensions

After the death of a worker, most pension plans pay survivor benefits only to a legal spouse of the participant - so surviving same-sex partners get no pension support for their surviving partners. Any pension dies with the worker.

Nursing homes

Married couples have a legal right to live together in nursing homes. An unmarried and elderly same-sex couple does not have the right to spend their final days together in a nursing home.

Home protection

Laws protect married seniors from being forced to sell their homes to pay high nursing-home bills; seniors in same-sex relationships have no such protection. A non-married partner can be forced to sell his or her own house to repay a state lien for nursing home care. A non-married partner who lives in the home but does not own it could even be forced from the home to pay nursing home costs.

Retirement savings

While a married person can roll over a deceased spouse’s 401(k) or IRA funds into an IRA without paying taxes, surviving partners in same-sex relationships must withdraw the entire amount, pay income taxes on it and also lose the tax deferral benefits of these accounts.

Taxes

Estate taxes. A spouse who dies may leave an unlimited amount of property to the surviving spouse without paying any state or federal estate taxes. Without the benefit of marriage, any amount of property over the federal or state exclusion amounts is taxed.

Income tax. Every year, unmarried couples must file taxes separately, as “single” people, ineligible for the tax benefits afforded to married couples.

Social Security benefits

Married people receive Social Security payments upon the death of a spouse. Despite paying payroll taxes, surviving partners in same-sex relationships receive no Social Security survivor benefits resulting in an average annual income loss of $5,528 upon the death of a partner.

Now I am a Bible-believing Christian, and I believe that God intended marriage to be between a man and a woman, so I am in sympathy with the part of the proposed “Marriage Protection” amendment that states, “Only a marriage between one man and one woman shall be valid or recognized as a marriage.”   The fatal flaw at this point, though, is that it does not say that marriage is a lifelong relationship.  If it said that, then it would truly reflect the Christian ethic that shaped so much of our cultural tradition; but you would also get very little support for the amendment because divorce is so widespread in our society.

But it is important to recognize that only this tradition of understanding marriage as a lifelong commitment can explain the wholesale assignment of so many rights to the marriage status.  Furthermore, the ability to control reproduction was not always as effective, which meant marriage usually resulted in reproduction.  So the way things are now, many of the rights assigned to the marriage state do not make sense to be exclusively preserved for that relationship.  Traditional marriage as an institution will not fall apart because committed unmarried couples are granted at least some of the rights listed above, or because gay couples are allowed to marry or enter into legally recognized civil unions. 

Recognizing nontraditional unions would create options, however, and that would demand that parents and their associates actively exercise their responsibility to nurture and educate their children to make responsible choices.  The great fear is that as society adapts such a foundational principle, we will recreate a mandatory pluralism where Christians and others are not completely free to practice their beliefs.  Rather than risking their advantaged position, those supporting only the traditional concept of marriage would rather deny any consideration to others than to lose their privileges.  In submitting to fear of what social change might bring, rather than seeking justice for those adversly affected by the traditional system, the advocates of the proposed amendment are surrendering all claims to moral authority.

Let’s face it. This proposed amendment does not “protect” marriage.  Without it marriage will continue to exist.  All it does is ensure that the unmarried can never obtain the rights and benefits that have accrued to marriage over the years–and many of these benefits are now completely unrelated to the functional benefit of marriage to society.  This amendment is designed to prevent any other kind of sexual union from being socially recognized, and it is sacrificing the well being of everyone who does not live up to traditional standards to achieve that purpose.

It appears that a good number of religious but fearful people are promoting this amendment.  Even the much-maligned Puritans when they first came to America kept marriage in the secular sphere in their unsuccessful efforts to make a distinction between church and state.  Although they did not always do things right, they gave birth to a national system in keeping with the Puritan’s objectives – where churches would convince people of what they should do, and the state would operate independently from the church and by the will of the people, FOR THE GOOD OF THE TOTAL COMMUNITY.  One does have to admit that the Puritans would be shocked to see what has become of their offspring; but then again God gave birth to an even greater nightmare when he created Adam and Eve.

Just as the Bible demonstrates how God accommodated to the practice of divorce which it says God hated, so we must now wisely and moderately accommodate to other human choices that consistently reject God’s will as presented in the biblical record.  One part of the community should not impose its standard on the rest of the community when so many people are not actually following it. If we do not follow the divine example of accommodation, but instead impose an absolute standard to address the problem of unmarried cohabitation (both same sex and opposite sex) we will create a lot more problems than by letting solutions evolve through the more uncomfortable give-and-take of the democratic process.

Marriage happens to be one of the oldest recognized social arrangements, which has now become a legal entity.  We recognize many other legal entities for various purposes, and we call them corporations.  Commonly recognized and accepted practice becomes the basis for legal acceptance and legal rights, which is the basis for the legal recognition of common law marriage.  Just as there are different levels of corporate registration and identity, so also there could be different levels of marriage, if we so chose.  As the history of marriage shows, in which common law marriage predominated in the European tradition, the formalization of social practices into legal codes is related to correspondingly developing political structures.  Governments make laws governing marriage, and many if not most of them have been made in the modern period with the rise of the nation-state.  We should be free to develop laws that best serve the common good.

There is no good reason why we should not allow for same-sex couples who want to commit themselves to each other in a partnership to obtain the rights granted to those who have made the commitment of marriage.  One can even imagine non-sexual partnerships as a permissible arrangement if there was a demand for them.  The only real debate is whether we call these legal entities “marriages.”  Unfortunately, this proposed amendment goes way beyond the semantic issue and makes victims out of those who fail to conform to the one legally sanctioned option currently available.  Advocates of the amendment are attempting to accomplish with the sword what they could not accomplish with the word. They are seeking neither love nor justice, but “protection.”  The many Christians among them have abandoned a Christian approach to government and surrendered to fear.

——-

If you want to make a comment, report a broken link, or suggest an additional link for the sidebars, click the word “link” below and share your idea in the “comments” section.