Dustin here. I know I’ve posted about this before, but I keep feeling that this is incredibly important – that I need to get my voice out there. I’ve read a lot on both sides of the aisle about California’s upcoming Proposition 8. I am a strong proponent of Proposition 8 – a resounding “yes” from my corner! I believe this is one of the most critical historical moments of my lifetime. If this Proposition fails, I believe it will instigate a great social experiment that will negatively affect people on both sides of the debate. As I am not the most articulate person, I am referencing one of the best articles I’ve read about this. You can visit this person’s blog directly by following the link below. Please read and share your comments. And more importantly, urge anyone you know in California to vote “YES” for Proposition 8 this Tuesday!
By Brady Brammer
Does anyone else think that it is ironic that Mormons are seeking to defend traditional marriage so ardently? After all, 100-150 years ago the Mormons in Utah were criticized for their views on marriage to such an extent that the 1856 Republican party ran on the platform of “prohibit[ing] . . . those twin relics of barbarism, polygamy and slavery.” There are many differences along with some similarities between the two issues. Nevertheless, that is a discussion for another day.
As a background, I have been involved in this issue since 2004, working for the Marriage Law Foundation. I have also published a piece in the BYU Law Review entitled: The Religious Right and the Gay Rights Movement: Finding Common Ground. I do not believe myself to know all of the issues or all of the angles, but like many, I believe that I have some angles that may be persuasive, or at least helpful in understanding the issue.
Initial Admission: We (Religious Groups) are not without Blame
I know that you have all heard the line before that “this isn’t anti-gay, this is about protecting marriage.” For many I believe this is true. For others however, I fear that it is pretextual. I believe that to some degree anti-gay feelings exist. Not the anti-gay feelings of “I still love them, but I disagree with that aspect of their life” (which is sort of how I feel about my friends involved in MLM marketing or those driving minivans), but rather, there is an actual and a violent hatred for gays that still permeates both the religious right along with many other groups. I sympathize with my friends that are gay because I don’t think that they have been given a fair shake. I truly believe that God and Christ will have a level of mercy for them and the choices they make that far exceeds the bigotry and judgment that they have been dealt by religious groups and society in general.
Arguments
Different Goals:
Traditional marriage is a bestowal of rights. These rights are given in hopes of providing social good. In this instance, the social good that these rights are given are (to name a few):
- The right of a child to be brought up and know his/her biological parents,
- encourage the optimal situation for child rearing (social science consistently shows that this is a home with a mother and father),
- bridge the male-female divide,
- help children to develop the positive aspects of their respective genders, and finally,
- providing a socially acceptable means of responsible sexuality and reproduction.
Admittedly, traditional marriage as a whole fails to live up to these ideals, despite this, it has the potential to live up to these ideals and commonly does. At its core, same-sex marriage cannot meet the same goals that traditional marriage has espoused. Specifically, it cannot encourage parentage by biological parents of different sex, nor can it bridge the male-female divide. This is not to say that same-sex marriage cannot have benefits of its own. It is merely to show that the goals must, by definition, be different.
Specificity:
As discussed above, providing for a separate institution, such as civil unions allows for the law to seek social goods that could come from civil unions. These goals include among others:
- fostering relationship stability,
- when procreative powers are used, it provides for more stability in the lives of children than they would otherwise have.
- providing a framework for more responsible sexuality
While some may agree with civil unions, and others would dispute them is a debate for another day. The point to this is that civil unions allow for a legal framework that addresses fundamentally different goals than marriage does in a more specific way.
Muddled Legal Framework:
Family law is based on certain presumptions specific to traditional marriage. The addition of same-sex marriages into the legal framework brings with it challenges. How does the law deal with divorce issues for same-sex couples? Issues that arise more frequently would be tied to child custody issues such as biological parenting rights, surrogate parenthood, and artificial insemination. For example, in Massachusetts, gay couples are having to spend much more money to divorce because the established laws and cases are difficult to apply, causing further litigation. For example, for traditional marriage, most child custody issues are decided presumptively in favor of the mother. In a same-sex marriage between two females, the court is forced to determine who is in the role of the mother first, then apply the law as if the other partner were the man.
Additionally, what about the situations where one partner gives birth, while the other provides support, but is not the biological parent; under the current law, the biological parent is at a great advantage. Having a separate institution allows greater flexibility and responsiveness to deal with issues that are largely same-sex specific.
It Does Hurt, and it Can Hurt me in the Future:
One of the strongest arguments against the protection of traditional marriage is the question “How is the marriage of Janice and Janet going to hurt the marriage of Brady and Nicki?” The reason why it is a strong argument is because in reality it won’t hurt me or my family directly. However, that is not to say that it won’t hurt us indirectly. Taken as a whole, the societal consequence is that I must view marriage in a way that I don’t believe that marriage is.
Just as most do not believe that polygamy is marriage, and most would not want it to be called marriage, I don’t believe that same-sex unions are marriage. Forcing me and my family to change that definition hurts my belief in marriage as an institution. I am not a bigot for believing that the role of a mother and the role of a father are essential in the lives of the children they create.
I recognize that many of the arguments against same sex marriage are “doomsday” or “slippery slope” arguments are not applicable now and are largely given for dramatic effect. Despite this, I do not wish to huddle with the people that agree with me and try to persuade my children that “real” marriage, as has been in effect for centuries is acceptable while “new” marriage is only acceptable to our belief system in certain circumstances. This truly does hurt how I raise my family. Whether the schools teach it, or society teaches it, same-sex marriage will be taught as marriage as long as it is legal.
Precedent:
As an attorney, I look first to precedent. Currently, three states allow same-sex marriage (California, Connecticut, and Massachusetts). To my knowledge, 26 states have passed constitutional amendments protecting marriage and 19 have passed statutes, totaling 45 out of 50 states with some form of marriage protection. California and Connecticut both had laws protecting marriage that were overturned despite wide margins supporting those laws when passed. Additionally, federal law defines marriage as a legal union of one man and one woman. That being said, precedent isn’t everything, so let’s go on.
Different Actors in the Legal Relationship:
At its core, marriage is a legal union, just as a partnership, an LLC, or corporations are legal unions. The choice of which legal union is applicable depends upon the actors and the rights that are sought. Here, the actors are fundamentally different. While the rights may even be identical, the actors are different, thus a legal difference in name is appropriate—not discriminatory.
Rights, not Acceptance:
I don’t believe that the government has the job to tell people to like me. I believe that the government is in place to give me rights. Rights to do things without government intervention, and in some cases, like marriage, the right to do things with the help of the government. Here, the same rights exist under both the civil union framework and the marriage framework. With that in mind, seeking to change the name of those rights is a play for acceptance and not a play for rights. I do not believe that the role of the government is to sanction my lifestyle or anyone else’s. If the government seeks to end all marriage benefits that is fine. Changing marriage to something different in hopes of lending credibility and acceptance extends beyond the role of government.
Conclusion
These are just a few of my thoughts on the subject. I hope that they are received in the proper context and that they are not perceived as being bigoted. In sum, my support for Prop 8 comes down to 1) a belief that a father an a mother in a committed relationship meet the social goals of marriage, 2) same-sex marriage has different actors and goals that can be addressed more effectively under a different legal identity, and 3) seeking acceptance by changing the meaning of accepted terms is not the role of the government.