As almost anyone not living in a cave is aware, the California Supreme Court recently ruled that the statute which limited “marriage” to a man and a woman was in violation of the state’s constitution, thus opening the door for thousands of gay people to enter into legally sanctioned marriages.
Even more recently, a voter petition to amend the California constitution was approved in California and will be on the ballot this fall. If approved, the constitution will be amended to state that marriage in California is between a man and woman. It would effectively override the ruling of the California Supreme Court.
The LDS Church has issued a letter to the Saints in California, seeking their active participation in getting the amendment approved by the voters. The letter represents a real threat to supporters of same sex marriage in California because, as was the case a few years back when a similar voter initiative was on the ballot, LDS members in California are numerous, organized, and have to the potential to swing the vote in favor of the amendment.
Enter Mr. Jeffrey S. Nielsen. I do not know Mr. Nielson except that he was a professor of some sort at BYU a year or two ago. I know that he published some remarks in the local paper which essentially took LDS leadership to task for their stance on the issue of gay marriage. He then feigned shock and surprise when his superiors at BYU informed him that his services were no longer needed or desired.
Now, Mr. Nielsen has returned, issuing an “Open Letter to California Mormons” which he hopes will be published in California papers on the same Sunday the letter from the First Presidency is scheduled to be read. Quite frankly, the sum of his letter doesn’t really interest me. It represents nothing more than familiar, emotion-based arguments that I’ve seen many times before. Long on feelings, short on facts. However, as I read the letter, one sentence caught my eye. Mr. Nielsen states: “If anyone could give me a single reasonable argument against marriage equality in our civil society, which doesn’t make fallacious appeals to tradition, misplaced appeals to religious authority, or make some ridiculous claim about nonhuman animals, then I would like to hear it. So far, no one has been able to present me with even a single justifiable reason.”
I find this assertion highly interesting on several levels. First, it seems to me to exhibit an exceptional arrogance, as if the arguments which he espouses are unassailable. I am lawyer by profession, and I learned early on that few, if any, positions are unassailable. Second, I am concerned at the way Mr. Nielsen simply rejects certain argumentative foundations out of hand. “Fallacious appeals to tradition?” I’m not sure what that means. Certainly, an argument cannot be won on the basis of an appeal to tradition. However, it should be recognized that traditions usually become ensconced as “traditions” because they have passed the test of time and we humans, by trial and error, have learned that certain traditions serve a valuable protective role for society.
Be that as it may, I will indulge Mr. Nielsen and refrain from such appeals.
Before I begin, it is probably best that I state my personal stance on the issue of same sex marriage. I am a “TBM,” and as such I obviously have several deeply held moral objections to homosexual conduct. That being said, I do not believe that homosexuality represents a “choice,” rather, I believe that homosexuality is caused by a complex interaction of genes and environment which we, at this point, do not understand. I do not favor same sex marriage. However, it is my stated belief that if the citizens of a certain state feel that they wish to extend the benefits and privileges to same sex partners, that is their legal right, and while I think it makes for poor public policy, the right to enact bad public policy rests with us all. I do, however, vehemently object to imposition of same sex marriage on a populace via judicial fiat.
On to the argument then. The fundamental question, as I see it, is this: Does a state have the right to favor one type of relationship over another? I believe the answer is unequivocally “yes” and I shall explain why. I believe that there does exist a valid and legally defensible argument that refusing to grant public/governmental sanction to same-sex marriages is in the public interest. My argument is based on principles of law and sound public policy and makes no reference to “morals,” “tradition” or “religious authority.”
The argument essentially goes like this:
There is no question that the state (meaning a democratically elected government) has the right to try to encourage behaviors that are beneficial to the state while simultaneously trying to discourage behaviors that are not. This fact is so ingrained into our governmental fabric that no one even notices it any longer. However, some concrete examples are called for.
It is an established fact that home ownership is good for the community. It has been shown that home ownership (versus renting) provides benefits to the family, children and the community, such as increased education for children, lower teen pregnancy rates, a higher lifetime annual income for children, lower crime rates, etc. [See several studies located at http://www.realtor.org/library/library/fg302. Also see William M. Rohe, Shannon Van Zandt and George McCarthy, The Social Benefits and Costs of Homeownership: A Critical Assessment of the Research, Joint Center for Housing Studies of Harvard University, October 2001 (stating that “Strong and consistent evidence indicates that homeowners are more likely to: a) be satisfied with their homes and neighborhoods; participate in voluntary and political activities; and c) stay in their homes longer, contributing to neighborhood stability).]
However, the state cannot force people to buy homes rather than rent. Therefore, in order to encourage this type of behavior, the state has granted to home owners a whole series of financial “benefits” designed to encourage people to buy and own homes. For example, there is the mortgage write-off on your taxes and there is also the fact that the sale of your first home is exempt from capital gains taxes up to half a million dollars.
Of course, this raises the question: is this fair? I did not own a home for the first 13 years of my marriage. I was unable to claim to the same tax and financial benefits as others who owned homes. This was due mostly to my financial situation: I was simply unable to claim those benefits. Nevertheless, there is no question that the state had every right to encourage home ownership in the form that they did, despite the fact that it appears to discriminate against large section of the society.
Another example: Military service. The state long ago learned that conscripted military service is simply not very efficient and the soldiers it creates are not nearly as reliable or dedicated as those whose service is gained via voluntary sign ups. So, in order to encourage voluntary enlistment, the state began to offer a whole series of benefits to those willing to join. Thus, veterans get free life-time health care at VA hospitals, access to low-rate loans for college, subsidized housing, vehicles, etc.
None of this is available to the public at large. In fact, in my case, even if I wanted to access it, I could not since my poor eyesight alone would disqualify me from military service. Thus, the government is again granting benefits to a certain segment of the population which are not available to the vast majority.
So, the question is, does the government have a vested interest in “promoting” heterosexual marriage over “same sex” marriage. The answer is, clearly, yes.
Why? What does heterosexual marriage provide the state that same-sex marriage does not? Well, that question is easy to answer. In fact, heterosexual marriage provides a full range of primary and secondary benefits to the state that same sex marriage does not.
The most obvious benefit is that heterosexual marriages provide the state with a steady supply of new citizens. This may sound odd, but it is not. In fact, recently commentators have noted that several European countries are now facing severe societal problems due to the fact that their citizens simply aren’t reproducing at sustainable rates. (See Robert Samuelson, “The End of Europe,” The Washington Post, Wednesday, June 15, 2005; Page A25.)
This fact alone would justify the state in favoring heterosexual marriages over same-sex marriages. Not because same sex marriages are inherently “bad” or “evil” but simply because same sex marriages do not provide the same benefit to society and the community that heterosexual marriages do.
The obvious objection is that some heterosexuals who cannot reproduce are still allowed to marry (young couples who chose not to have children, infertile couples, post-menopausal women, etc). My response is that in the case of a couple who simply choose not to have children, they can (and almost invariably do) change their minds. In the case of infertility, science is advancing so rapidly in this area that women who only 5 or 10 years ago couldn’t dream of bearing children now have a very realistic hope of doing so. Science is also pushing back the age of menopause, making it possible for women to bear children well into their 40’s, and in some cases even into their fifties and sixties. (See http://www.msnbc.msn.com/id/13801920/).
Furthermore, the “exceptions” to the general procreational rule cited above represent what in legal parlance is termed an “argument from the margins.” Such an argument occurs when a general rule is stated (the state sanctions marriage because it wants people to procreate). Those who oppose this view then seek to find any “exceptions” to this general rule (infertile couples, post-menopausal women, etc.) and then claim that since such people are also allowed to “marry” the general rule is invalid. However, this “argument from the margins” assumes a sort of argumentational purity and consistency which are simply foreign to public policy arguments and which are not required by Equal Protection jurisprudence. In short, the “exceptions” do not swallow the rule.
Second, this objection doesn’t recognize that heterosexual marriage itself, apart from its procreational aspects, offers other benefits to the state which same-sex marriages, especially male/male marriages, do not. It has long been recognized that “marriage” has a domesticating effect on heterosexual men that makes them less “wild” (for lack of a better word, perhaps “undisciplined” would be better) and more responsible. Men are, by nature, programmed toward promiscuity. Heterosexual marriage tends to greatly lessen the tendency (and it is only a tendency) for promiscuity in heterosexual men, a great benefit to the state. However, same-sex marriage (especially male/male relationships) do not receive this same benefit. As has already been noted, male homosexuals are known, as a general rule, to be highly promiscuous. [See, for example, H. Meyer-Balburg et. al., “Sexual Risk Behavior, Sexual Functioning and HIV-Disease Progression in Gay Men,” Journal of Sex Research 28, 1 (1991): 3-27; G. Rotello, Sexual Ecology: AIDS and the Destiny of Gay Men (New York: Dutton, 1997).]
Moreover, the data from countries where gay marriage has been sanctioned for some time shows that marriage has no appreciable effect on this. A recent study from the Netherlands (where gay-marriage has been the norm for several years now) showed that in the first year of “marriage” alone, both partners had, as an average, eight extramarital “affairs.” Indeed, many gay-activists groups have freely admitted that promiscuity is simply part and parcel of the “gay” lifestyle. [See Maria Xiridou, et. al. “The Contribution of Steady
and Casual Partnerships to the Incidence of HIV Infection Among Homosexual Men in Amsterdam,” AIDS 17, 7 (2003): 1029-1038; David P. McWhirter and Andrew M. Mattison, The Male Couple: How Relationships Develop (Englewood Cliffs: Prentice-Hall, 1984).]
Of course, part of the argument in favor of same sex marriage is constitutional, i.e., that the state is required to give gays access to marriage under both the “Equal Protection” clause and also under the “Due Process” clause. These arguments are highly flawed, however. Legally, the state is under no obligation whatsoever to offer sanctioned marriages to anyone. In other words, if the state decided tomorrow that state-sanctioned marriage had simply become too much of a burden and was draining too many resources, it could, theoretically, discontinue ALL civil marriages and simply state that, “The state will no longer sanction marriages of any sort. Period.”
The state could do this, and some states (notably Wyoming) have even toyed with the idea of doing so.
What prior federal court cases (notably the Loving decision) have stated is that If the State is going to offer sanctioned marriages, it cannot deny that privilege on the basis of color since such a demarcation is irrational.
This is exactly analogous to current welfare programs. The state is not required in any way to offer such “safety net” programs as food stamps, WIC, and Welfare, and, if they wished, they could completely dismantle the whole system tomorrow. However, the courts have held that, if the state is going to offer such programs, then they cannot discriminate on who benefits from them on the basis of irrational criteria (such as race). This does not mean, however, that the state is not allowed to “discriminate” in other ways. For example, in order to receive food stamps there is usually a requirement that the person be working at least 20 hours a week. Thus, someone working 15 hours a week, or someone not working at all, are discriminated against. Nevertheless, it is allowed because the line drawn is rationally related to the goals of the program.
The rationale for discriminating between a same-sex couple and heterosexual couple is based on the potential for procreation, which is not irrational in any sense. Thus, the limiting of the “program” to only heterosexual couples is a rational distinction that the state is allowed to draw. The lynch pin of equal protection jurisprudence is the notion that the two parties must be “similarly situated.” In the case of same sex couples vs. heterosexual couples, they are not similarly situated because one can procreate and the other cannot. In Loving, the mixed race couple was indeed “similarly situated” to the same-race couples because they could still procreate just as the others could, thus the limiting of marriage on a racial distinciton was irrational. That is not the case here, therefore drawing the line on marriage at that point is “rational” and thus not a violation of Equal Protection.
The due process (substantive due process) argument is even weaker. There are essentially two tests which the Supreme Court has laid out to determine if a newly claimed “right” is actually a right protected under the constitution. The first, is the newly claimed right “implicit to the concept of ordered liberty?” The second, is the newly claimed right “deeply embedded in our nation’s history and traditions?”
Is same-sex marriage “implicit in the concept of ordered liberty?” The answer is an obvious no. We’ve had ordered liberty for well over two hundred years now and same-sex unions have played absolutely no role in it. Heterosexual marriages, on the other hand, have played a pivotal role, providing new citizens to the republic and providing a stable environment for the rearing of those children. It has also played a significant factor in stabilizing and creating responsible men to govern that republic. Same-sex marriage has not and, indeed, cannot provide any of these.
Next, is same-sex marriage deeply embedded in our history and traditions? No, it is not. In fact, its rejection is deeply embedded in our history and traditions. On the other hand, heterosexual marriage has been a part of our history and tradition since the dawn of civilization.
Thus, a brief due process analysis to determine whether or not same-sex marriage is a “right” shows that it obviously is not. For a much longer treatment of this subject see the decision in Standhardt v. Arizona here: http://www.cofad1.state.az.us/opinionfiles/SA/SA030150.pdf.
Mr. Nielsen’s premise is plainly false. Whether you agree or not, the fact remains that rational reasons exist for limiting marriage to men and women. If the state chooses to ignore those reasons and extend marriage to same sex couples, the state has that right, but it is simply wrong to assert that same sex marriage is a “right” and to have it foisted upon us by judicial fiat as occurred in California.