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Another Step in the Prop 8 Saga

August 9, 2010

Prop 8

This week and last, apparently, a LOT happened re: California’s Prop 8. Of course, this proposition that banned gay marriage was overturned by the 9th Circuit (Dis)trict Court. The LDS Church quickly released a statement about what they felt regarding that. Conservatives have questioned Judge Vaughn Walker as being a “gay activist judge.” And since then, Mormons of both believing and non-believing stripes, on all sides, have been posting their reactions to the news and the future.

I think one thing to note is that this isn’t settled. This case will probably be appealed, and things will explode. But beyond the actual outcome of gay marriage, I am just as (if not moreso) interested in the psychological casualties caused by this struggle.

That turns me to two (dis)cussions in particular…the one from The Rains Came Down and the one from symphonyofdissent.

SilverRain at The Rains Came Down wrote:

Originally, I supported legalizing gay marriage. But, as I’ve listened to the debate, the pro-gay-marriage side has made me a lot more hesitant to support it. Their arguments for gay marriage have done more to frighten me about the possible ramifications than the arguments against have convinced me.

She later wrote something quite curious. One of the things that frightened her was the argument that sexual orientation is not a choice, because for her, it certainly is. I don’t really know what to say about this. I’m not quite sure if she is trying to divorce (…no pun intended) sexual orientation from sexual activity or what, but I didn’t fully quite get that. (As an aside, if there is anything that makes me more likely to view the sexes as not the same, how sexuality seems to play out differently between men and women is one of those things. Sorry women, you guys are weird.)

Nevertheless, I was more (dis)couraged by the idea that poor behavior and advocacy truly caused a casualty with her. And, to be fair, I can see some of her points. To someone who is against the impact of religion in the public sphere, it might sound perfectly acceptable to say, “Don’t vote with your religion.” But I can see how this is ideological tyranny and censorship — and I can certainly see how this would turn people off. If I regret anything, I regret that religions are so against things like LGBT equality (or even gender equality in some cases [cough ERA]), but I don’t then say, “Religion should be banished from the public sphere” just because I (dis)agree.

Some of the same concerns that SilverRain had were shared by symphonyofdissent. As he wrote:

…when in dialogue with other individuals we can not merely expect them to drop their most deeply held values. Gaddy speaks about the importance of dialogue with those that disagree with him, but also describes the pro-gay marriage side as on the side of the constitution and the right side of history while describing those opposed as backwards and opposed to the constitution. This rhetoric is not inviting to dialogue. A true commitment to dialogue would mean building first on where we can find common ground.

I think that both sides fail to even address each other with charged rhetoric, and this is tragic. Nevertheless, I wonder if there is even commitment to “common ground” or if the only com- we have is compromise (which we will never consider ideal.) Because, as symphonyofdissent continues (perhaps offering a realm of alleged common ground)…

Most Americans support Civil Unions with full marriage rights granted to gay couples. Most Americans oppose discrimination and other forms of hatred (though tempered by the rights of religious individuals to preserve their values). In my view these are the things that should be fought for rather than taking a divisive strategy of forcing Gay Marriage onto a population that does not support it and is not ready for it.

To (dis)pel: most Americans do not support civil unions with full marriage rights granted to gay couples (especially not, say, adoption). (Even when they do, the federal government does not recognize it and neither must any other states.) That is why in most states, there are not only gay marriage bans, but bans on other same-sex unions. If you look at this map of gay marriage rights in the US from wikipedia, the plurality of states with the darkest red shading ban more than just gay marriage.

Gay Marriage Rights in the United States

A plurality of states have constitutional bans on gay marriage and other same-sex unions

But, looking further at symphonyofdissent’s statement, even if most people supported civil unions of gay people, then we’d have to confront the fact that this is not common ground but a compromise — whatever people think of the comparison, this reeks of “Separate but Equal” to the supporters of gay marriage. The entire push of civil rights movements — whatever people think of the comparison — is to “forc[e] [insert unpopular minority right here] onto a population that does not support it and is not ready for it.”

Symphonyofdissent also had a bit of a head scratcher argument in my view. To paraphrase, he questioned whether gay marriage would take gays out of “a more promiscuous lifestyle” into more stable families or entice people who were “marginally attracted” to the same sex (as he put it, “true bisexuals”) to choose gay relationships over equally fulfilling straight ones.

While I think this argument is a step better than arguments that suggests that acceptance of gays and gay marriage will “turn people gay,” I find the precarious approach of bisexuals with respect to gay people awkward…and I think it highlights the pitfalls of “separate but equal.”

See, symphonyofdissent talks about people who would choose gay relationships over equally fulfilling straight ones, but he does not value the gay relationships equally with straight ones. Even though he presents that they can be equally fulfilling (whether he believes it or not), he implies that straight relationships are really preferred, and that it would be a loss if bisexuals didn’t pass for straight and suppress any same sex attractions.

…Ultimately, I am not currently so hopeful. Like John at Young Stranger, I feel like there is no solace until people can celebrate with gay couples and celebrate their marriages which are affirmations of their humanity.

But I suppose that would be compromise.

From → Uncategorized

  1. Daniel Ortner permalink

    I don’t see a theologically consistent way to view heterosexual and homosexual relationships as equal on a personal level. Should there be legal equality? Absolutely! Moreover, I don’t personally have to view them as absolutely equal in order to support my non-member gay friends in their desires to get married.

    I think the separate but equal argument is spurious. The whole reason separate but equal schools could never truly be equal is that they involved a physical separation and thus set apart those in the minority as forever different.

    In contrast imagine the case of two gay people In a civil union in a post DOMA California that happen to belong to a liberal pro-gay Marriage church. They could be officially married by their denomination and the state would treat them in every way identically as they do a straight couple. They would rightfully say to their friends that they are married. The small concession of state given title ( which no one has to care about or see after it is granted) does not really harm in any meaningful way. It is merely acknowedging the fact that one institution is a traditional one that has historically been called marriage and the other one is a newer institution called gay civil union. It may be that this does not pass the 14th ammendment test regardless of how small the differences, but the comparison to segregated school is just meant to denigrate and insult rather than truly provoke discussion.

  2. Great article and thanks for the link. I’m all for civil unions with the exact same benefits as married couples. This includes the tax penalties placed upon married individuals. I also have no problems with gay couples adopted children. My only gripe is the changing of words to fit others lifestyles. Marriage has been defined throughout history and many believe it is between one man and one woman, including our president.

    I think, over time, people will become more accepting of the gay lifestyle. However, the gay community’s intolerance is also a factor when it comes to other’s accepting their lifestyle.

  3. Daniel Ortner permalink

    By the way I actually think the prop-8 decision was decided correctly given the case presented to the judge. The pro prop-8 side presented a pathetic case that deserved to lose. I am sincerely open to the emprical arguments on both sides and nothing they presented was persuasive in the slightest. In a sense I mourn the direction of the current debate and the fact that we can no longer resolve controversy save through judicial recourse. I think that if people believed that gay couples would truly be content with civil unions that a good 3/4 of the states would have civil unions in place in a couple of years. I don’t doubt that walker likely made the only correct decision given the facts presented.

  4. On choosing sexual orientation, Judge Walker’s findings of fact quoted some research (pp. 74-75):

    Tr 2054:12-2055:24 (Herek: PX0928 at 39 contains a table that reports data on approximately 2,200 people who responded to questions about how much choice they had about being lesbian, gay or bisexual. Among gay men, 87 percent said that they experienced no or little choice about their sexual orientation. Among lesbians, 70 percent said that they had no or very little choice about their sexual orientation.); Tr 2056:4-25 (Herek: PX0930 demonstrates that 88 percent of gay men reported that they had “no choice at all” about their sexual orientation, and 68 percent of lesbians said they had “no choice at all,” and another 15 percent reported a small amount of choice.);

    So research does support the idea that a small percentage of GLB people feel they have some choice in their orientation.

  5. Thanks for commenting, symphony/Daniel!

    I have yet to complete my series on Thinking in a Marrow Bone’s series on Marriage, but what I really got from this (whether Joe would agree with my interpretation and conclusion or not) is that the opportunities one would have from a marriage shouldn’t be limited to just men and women. Joe argued that we progress and learn based on the differences in people — and uniting in marriage gives us the opportunity to begin to understand the infinity of our spouses.

    But…I don’t think that Joe’s argument showed that different genders have an infinity that people of the same gender do not. Instead, *every human* is infinite, and so every human can progress exponentially with each other. Every human has differences from each other, so every human can learn something from those differences.

    (Interestingly enough, this kind of argumentation gave me a bit of a sense of understanding about why polygamy could still be a celestial principle and ideal. Even if in mortality we often botch up marriage to *one* person, to progress to godhood, wouldn’t we have to learn charity and love to many? Perhaps…everyone?)

    In this way, I think there can be a theological argument for the equality of gay and straight relationships.

    I don’t think the separate-but-equal counter-argument hinged or hinges on the physical difference. Instead, I think the physical difference simply highlighted something conceptually and psychologically inequal about separate-but-equal schools. Physical difference alone doesn’t show the inequality of a separate-but-equal system. Instead, it’s the fact that physical differences can highlight a difference in valuation that makes separate-but-equal fail for schools.

    Let’s take a few cases. If I give you the choice of two cans of coke, these are physically separate. However, they are also equal, so a separate-but-equal argument can succeed because you (and no one else) would NOT *value* these two separate cans inequally.

    Let’s say we had the Mona Lisa, and a Mona Lisa that was made painstakingly by machine, matching da Vinci’s every brush stroke. These are physically separate, but depending on who you are, you might value “the original” better than “the copy.” Here is where the separate-but-equal argument BEGINS to unravel, because people would start to hesitate in the valuation — some people would simply prefer da Vinci’s to the clone, even if the techniques were captured perfectly. This valuation difference means that people would clearly prefer one over the other.

    When we go with schools, this becomes obvious. People wouldn’t say, “either or is fine.” With their lips, they said: “The schools are the same, only in different locations,” but unlike the cokes, with their hearts, people had a particular preference for one over the other.

    The same is the case with marriage and civil unions. The fact that there is a psychological valuation of marriage that makes people want to differentiate it from civil unions and preserve marriage for the title of *their* relationships shows the difference in valuation.

    I don’t know what your final analogy really accomplishes. With a ban on gay marriage, a pro-gay marriage church cannot marry gay couples, even though they want to. With such a ban, they are civilly unionized, not married, and everyone will know that marriage is psychologically more valuable than civil unions — including the law, which bans gay marriage but not straight marriage.

    Basically, for equality, either all marriages have to go (in which case it can be a purely social thing based on churches) or all marriages should be recognized by the state. The *social institutions* can freely (dis)criminate, but the state cannot ***unless*** it has a compelling government interest (and can pass a court scrutiny test). Failing that, the government cannot participate in the (dis)criminatory institution. If things were truly equal and the concession of a state-given title were truly “small,” then it should be just as agreeable if there were a proposal to ban all state recognitions of “marriage.” However, many people find that unacceptable.

  6. Scotty,

    I would have no issue if the state abandoned all recognition of marriage completely and then left marriage as a social institution. I would have no issue if the state only recognized civil unions for all, and then social institutions like churches could determine who is married and under what requirements. In this case, there would be equality, and words with historical meanings (although I could see how this could come into (dis)pute…) would not change their meanings.

    I guess what I would like to happen is for people to realize that there isn’t a “gay lifestyle,” just as there isn’t a “straight lifestyle.” There isn’t a “black lifestyle” just as there isn’t a “white lifestyle.” There is diversity within these groups and you learn very little about someone just from hearing they are “gay,” just as you learn little about someone just from hearing they are straight, white, or black.

  7. kuri,

    Interesting call on the data!

    I guess what I also feel is that I dislike the idea that people accept gay relationships only on the conditional that they believe it is something like a terrible unchosen birth defect. I’m not quite to the point of understanding the “choice is a red herring” argument, but I can see certain aspects of it.

    Nevertheless, for whatever the group of people who experience fluidity in their sexuality, that has not been my experience.

  8. Daniel — You should read the actual Supreme Court ruling that struck down the notion of “separate but equal” established by Plessy v. Ferguson as the basis for racial segregation.

    The argument went: Even if everything about two institutions are absolutely equal in every sense of that word, the fact of being separate guarantees that a despised minority being forced to accept a separate institution will be harmed and will experience that institution as unequal. Even if the two are identical.

    BTW… Civil unions are not equal. Civil unions are not portable. A civil union in one state is not recognized in other states. Marriage is portable. It’s a national institution that is recognized everywhere. So civil unions are demonstrably inferior to marriage.

    But even if they were made equal in every sense, including in the sense of portability… It would not meet the test of equality established in Brown. Separate is inherently unequal…

  9. John, thanks for the comment! Quite succinct in response to my rather lengthy one.

    I guess what I regret is that currently, even marriages aren’t portable. One marriage does not have to be recognized in other states (or even federally) as things currently are with the Defense of Marriage Act.

  10. symphonyofdissent permalink

    I have read Brown V. Board but I think that the principle was created when dealing with physical institutions and would need to be reevaluated in dealing with something like marriage. It’s not quite as easily transposable a situation as is typically suggested. The difference here lies from the fact that with a hypothetical Civil Union that is fully equal (that includes portability) those that support SSM will consider their Civil Union to be equal to a marriage (Especially if consecrated in their shared religious tradition) while those that oppose it will not view them as equal regardless of the title. If the two are in all respects civilly equal in terms of rights then I think that meets the equal protections standard as the law can not force symbolic equality either way.

    A religion can today declare two people married or whatever it wants so long as it does not expect that title to be recognized by the state. There’s nothing preventing a non-legally binding ceremony from taking place. If that is NOT the case, then I think that would be one of the strongest pro-same sex marriage arguments. Prop-8 could be argued as taking away the right of religions that support SSM from expressing their religious values. I wonder why this argument has not been advanced ( Like I said I truly am ambivalent and go back in forth in my feelings on SSM). Religions do NOT on the other hand have the right to have their ceremony recognized by the state.

    • Symphony – Even legalized in only 6 states, same-sex marriage is already more portable than civil unions.

      When a state offers civil unions, it spells out what rights that entails and what rights it doesn’t entail. Sometimes it’s “virtually” marriage, but often it will fall short of the full legal rights of marriage. If you remember… That’s why Vermont threw out the whole idea of civil union. The state would have had to create this whole, huge, separate body of law to govern civil unions, and the court finally said, in essence, “Hey, this is ridiculous. We don’t need two sets of laws to govern these kinds of relationships… We already have laws that determine what rights people in a relationship have… It’s called marriage.”

      In order for civil unions to become portable, you would have to create some kind of special federal law recognizing the portability/validity of civil unions across state boundaries. Not to mention that you’d have to revise those state codes that offer civil unions that fall short of full marital rights.

      But that’s absurd… The constitution already GUARANTEES the portability of marriage. Why create a whole parallel federal legal structure to do the same thing? The only conceivable reason to create two “separate but equal” marriage/union structures would be to defer to the discriminatory sentiments of people who think gay relationships are inferior. The state has no business enshrining discriminatory sentiment, and no interest in creating an unnecessary legal system for gays.

      I don’t know ANY gay men or lesbians who prefer civil unions to marriage. I know some who will accept civil unions as a compromise, because it’s better than nothing.

      And I don’t care if certain religions consider same-sex marriage to be inferior. Here, it’s not a question of what’s superior or inferior under religious doctrine. It’s a question of what’s superior and inferior under the law.

    • Yeah, symphony, I ultimately have to say this:

      If the two are in all respects civilly equal in terms of rights then I think that meets the equal protections standard as the law can not force symbolic equality either way.

      If the two were in all respects civilly equal in terms of rights (although I think John G-W raises a good point on the complexity that would be required to ensure this), then I think they must share the same name and identity. The fact that they do not is one point, but the fact that proponents of the separation would argue that legally they *cannot* is really decisive in their inequality from a legal aspect. As soon as we question, “Why can’t two things that claim to be legally equal share the legal name?” the only answer that really makes sense is, “Because they aren’t legally equal.” B cannot be called A because ultimately, no matter what the claimed equality, A=/=B.

  11. I guess same-sex marriage right now is about as portable as interracial marriage was 100 years ago… But the history of interracial marriage illustrates why same-sex couples should not accept “Civil Marriage.” As it has been defined, marriage is a constitutionally protected contract. “Civil Unions” are created (and potentially abrogated) at the whim of the states, and fall short of the durability and portability and protective status that marriage provides. It’s simply not the same — even if you provide all the same health care and insurance and inheritance benefits (which opponents of same-sex marriage aren’t keen on granting anyway).

  12. It’s so hard for them to understand what being gay actually means. Until one of their closest friends come out you can’t appreciate what it actually means…

Trackbacks & Pingbacks

  1. Reality Has A Well Known Liberal Bias | Prose Before Hos
  2. Gay Marriage and Good, Better, Best « Symphonyofdissent

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