(to facebook readers) - You might consider opening this response note in a separate side-by-side window by the original note so you can see the comments I'm responding to. I'll paste the many comments at the bottom for those blog readers who aren't my facebook friends. To blog readers, you might consider opening this post twice in separate side-by-side windows as well to be able to follow the comments. Sorry my laziness (not putting the comments by my matching responses) causes more work for you. Original post here.
Wow! I don’t check facebook for two days and look what happens. That’s a lot of substantial commenting! I can’t imagine why anyone would care enough to comment on such trivial topics. ;) I guess I’ll take my standard approach and address each comment in sequence, starting from the comment posted one hour and eight minutes after this blog post was imported as a facebook note at 5:13 am. Thanks all for weighing in, I appreciate your perspectives. Two warnings:
1) I’m sort of shortcutting establishing emotional safety with this blanket at the beginning: all my responses are directed at the written comments and none of them are directed at the comments’ authors. At the end of the day I still like you. If you feel squished it might be because I’m treating you as a peer/friend and will therefore stab your argument in the front.
2) I will engage in some levity below; though I acknowledge the gravity of these issues, I do like to have fun too and hope/request that you smile and shake your head a bit as you compose your scathing ripostes.
@Andy- yes, as noted I expected to lose most readers with the listing of sources.
Thanks for the respect for my logical approach.
Do I really support the side my logic seems to report- I’m not sure what you mean, please clarify. Paint me a picture of what the sides look like.
In the sentences beginning with “just about anything…,” what did I explain away, and in the “However, does that really…” sentence, what is “it?”
As to your moral argument, I would first point out that it is logic based. Having just decried that reasoning approach, it seems weird to rely on it immediately afterward. Back to the merits- so you say there’s a negative effect of subjecting your family and children to a perpetuated moral value you view (and others who view similarly- lets call this group the Westovers) as negative. Let’s say I concede that the effect exists. The same argument about using the negative consequence as a basis for prohibiting conduct or privileges can be used equally against the offended. Example: some citizens of the country, let’s call them the Eastovers, could view your occupational choice or your religious practice or your white skin or your heterosexual marriage or some other characteristic or conduct as subjecting their family and children to a perpetuated moral value they find to be negative. Which class’s conduct and privileges should be then constrained- the Eastovers or the Westovers? Is there a reason outside personal moral view to esteem either –over over the other –over? (the literary device is no extra charge). If not, how is the superior moral view to be selected, and who makes the selection? Absent solid answers to these questions, if follows that even a concession of the consequence doesn’t advance a proposal to limit the conduct/privileges of either negative moral value perpetrator.
Following your gut or values is all nice and dandy, but doesn’t get ya all that far in the public square. Arguing public policy in a pluralistic society under a constitutional democratic republic like unto the one we’re in requires persuading people- and unless either 1) everyone happens to agree with you or 2) you have a stellar trick for convincing lots of someones to make consequential decisions based not on their guts or the “dangers of logic,” but instead on your guts, one might find the uphill battle a mite discouragin’.
@Ryan- You have brought out the famed Slippery Slope Scimitar (again, no extra charge)! My parry is that you lack a substantial basis to confidently predict the continued expansion of the marriage definition. Is it possible that polygamy, then marrying children, then marrying animals, then marrying rocks would sequentially follow expanding from [man-woman] to [man-woman or man-man or woman-woman]? Yep. Will it likely happen? Difficult to discern. Would any continued definitional expansion be causally linked to the initial expansion? Also difficult to show. Will it happen? Impossible to conclusively say. I could argue the likelihood of continued definitional expansions, but am content to point out how difficult it is to predict the future as you have done (gay marriage WOULD just be the ball at the top of the hill). Way to depart from the cliché “tip of the iceberg” though.
Am I pro-gay marriage or pro-traditional marriage? For that you will have to wait. I plan to publish on the subject in a month or so.
@Mike- I have been puzzling the “too long in Provo comment”- still not sure what it means.
What is the implication of your claim that non-procreative powers are secondary reasons for marriage?
Would you use the procreative sex as a basis for permitting marriage, i.e. those who have sex to procreate may marry and those who don’t may not? I have more to say depending on your answer.
It seems that your argument restricts sex even between married couples to procreative episodes. Though too lazy to cite the evidence, I claim that is 1) an old school view no longer supported by the church and 2) inconsistent with the practice of not only most married people but most married LDS people.
@Leland- when I heard through a friend that you commented on my post I was excited. In my mind you were like Justice Kennedy- I wondered which way you’d lean on these issues.
I can’t argue with a person’s personal beliefs. I’m going to pretend for a bit that your beliefs are instead a stated position/argument so I can evaluate it- hope you don’t mind. If you do let me know and I’ll delete this segment.
1) Am I correct that your argument would necessarily exclude old people and infertile folks from heterosexually marrying, as they would be unconnected to any of their own biological children? Would you also argue against removing children from their abusive biological parents? Would you contend against adoption, which removes parents from their biological children? Will you lay down your resistance if, as in the scenario I posited, homosexual couples become capable of becoming the two and only two biological parents of their children? Also, if the connection to raising children is the core value, would you oppose relationships which are connected to raising children, irrespective of parental gender?
2) It’s entirely fair if the only or primary basis for restricting access to marriage is willingness/likelihood/capability to reproduce. What would be unfair and capricious would be to lay down a rule: “marriage is about reproduction, so only those who can reproduce may marry,” then grant exceptions to some incapable of reproduction but not to others. There must be some basis for granting exceptions that is equally applied to avoid a conclusion of caprice.
3) If that is the case, then society may continue to reject a new definition just as it has the old one, since your claim is that society’s rejection or embrace resists being controlled by the currently binding legal definition. Either way the social consequences don’t advance a claim that definition A is superior to definition B.
4) Let’s for the moment concede that states can indeed define and regulate marriage and marital relationships, and that regulation can vary from state to state. There is one significant limit- the states may not define or regulate in such a way as to deny any state citizen equal protection under the laws of the United States. The states may grant MORE rights than the federal constitution, but they absolutely may not grant LESS- otherwise states could use their statutes or constitutions to deprive US citizens of their federal constitutional rights. The US Constitution is supreme and trumps state laws and constitutions. Thus, state discretion is only in one direction (broader than or irrelevant to, but never violative of, those rights guaranteed by the US Constitution). Because the right to marry has been identified as a US constitutional right, it must have at least a minimum definition afforded to all US citizens irrespective of the state they reside in. Though they may expand the right to marry, states may not narrow it such that it deprives their citizens of that federal constitutional right by either statute, conduct, or constitution.
@Miri- as a significant social and legal institution which deeply affects the vast majority of Americans, I can think of few matters which are more deserving of the people’s input. Thus, it does not surprise me that people think they have to the right to vote about marriage and its definition. It just so happens that we buy into the idea that “we the people” ceded large swaths of our power long ago into a little piece of paper called the Constitution. For better or worse, that supreme little piece of paper has been interpreted to include a right to marry- which means that states and the people, absent a federal constitutional amendment, no longer have much say when it comes to what that means. For better or worse, since 1803’s fateful Marbury v. Madison, our system places the power of interpreting that right squarely on the shoulders of the federal judiciary.
Somewhat ironically in light of your criticism of the approval of traditional people, the test for unwritten constitutional rights depends in part on tradition: “Fundamental rights are those “which are, objectively, deeply rooted in this Nation's history and tradition ...” Hernandez v. Robles, 7 N.Y.3d 338, 380-381 (2006). Also, gay marriage does threaten at least the traditional definition of marriage. If the traditional definition of marriage is man-woman (that deduction is potentially upset by, for instance, the widespread understanding historically of polygyny as marriage), then gay marriage necessarily amounts to a redefinition, and thus a threat to at the least the stability of the definition.
Last, whether traditional people approve can indeed be vital to determining what is constitutional. Example: does a ¾ majority of the state legislatures (constituted of people, some whom you would likely term traditional as used in your comment) approve of a proposed US Constitutional amendment? Whether they do or not directly impacts the text of the Constitution, and thus what is constitutional.
@Andy- I think you comprehended one of my main points! I am encouraged that at least one reader has thus evidenced. I was indeed getting at who gets to define marriage (specifically, the right to marry under the US Constitution).
What is the gov’t when it denies the will of the people- 2 rebuttals.
1) First some philosophy of law/social contract and constitution theory. In 1787 “we the people” gave up a portion of our power by social contract to the Constitution, which means that there’s a certain portion of our will that is no longer ours- namely any will which would in effect contravene that Supreme rule of law- and thus that will portion is not available to be either denied or affirmed. Stated another way- picture ten people who have 100 "sovereignty" dollars each. They come together and sign a contract saying they'll immediately exchange five sovereignty dollars for securing the blessings of liberty to their posterity, ensuring domestic tranquility, and providing for the common defense. The five dollars means they agree to be subject to the judgments of the limited government created by the contract. At the end of the process, they only have 95 bucks left! They are no longer as fully sovereign as people in a state of nature. To then claim that when the rule of law empowered by those sovereignty dollars violates your sovereignty can only be true for the remaining 95 units, i.e that portion of your sovereignty not already contracted away (the non-Constitutional areas of life). [Sidenote- state law takes another big chunk of the remaining 95]. It would be like a computer engineer who's contracted to work from nine to five for pay to rebel against his boss during the workday by saying, "I'd rather build a swing set in my backyard than a motherboard; I'm a free man, now shove off." The workman's free to spend his time as he pleases off the clock; on the clock he's bound to uphold the contract. Similarly, it's assumed US citizens have contracted to subject ourselves to the Constitution- it is meaningless to speak of the Constitution as the supreme law of the land otherwise. Californians are part of the "we the people of the United States" and by virtue of the contract just discussed are subject to the US constitution- thus the difficulty in concluding that a properly interpreted Constitution overcomes the will of the people.
Additionally, by failing to fight against the effect of Marbury v. Madison, we have permitted the federal judiciary to grab the power of constitutional interpretation which “we the people” might otherwise have allocated.
2) The right to marry is a federal right binding on the whole country. Why should the will of California voters determine the definition of a right that applies nationwide? California doesn’t command a sufficiently significant portion of the country’s population to qualify their vote as the will of the people of the United States. If we assume for the moment that “we the people” haven’t lost to the federal judiciary that portion of power which defines marriage, shouldn’t national consensus be required to evidence the will of the people?
Your willingness to ignore logic is interesting epistemologically. One must rely upon logic to trust in God, as the logical deduction that because of our relationship to God and His omnibenevolence and omnipotence He will act in our best interests is necessary to meaningful faith. Also, that willingness betrays confirmation bias, i.e. logic is one way of arriving at higher grades of truth, but you begin from an assumption of possessing truth and thus use (some would say pervert) logic to establish a position rather than to seek for that position which is best merited by the sum of relevant logical arguments. I would also challenge your ability to know that revelation you receive is true, but that would be too far afield here.
@Alex- Short answer: I don’t know. Wish I did. Speculation: it seems unlikely that suits against the church for refusing same-sex temple marriage would succeed. On what law or grounds would such a suit proceed? Private religious practice is given high deference in the federal courts, and religions are not government actors (and thus not subject to the high constitutional standards that might be binding on, say, a civil official performing a marriage). It seems that the most proximal hazard would be loss of 501(c)3 tax exempt status, but that would merely amount to a reduction of a gov’t subsidy rather than the more egregious offense of depriving a religion of their right to exclude applicants from a religious ordinance. As in other countries, a practical work-around if the battle heats up would be to mandate that all church members wanting to be temple or LDS clergy married get married civilly by a justice of the peace or something first. In that case there would be even less basis for an attack, because who cares if you exclude or discriminate folks from a legally meaningless religious ordinance (as whether they are married in the eyes of the state would be resolved independent of the excluding practices of the subsequent sealing or bishop-performed hitching).
@Matthew- my friend told me the other day that you commented, I’m glad to finally get to your first comment!
Good call on the tension between rule of law/constitution and personal beliefs- though I would qualify that it’s a rule of law in what BYU Advancement VP and former BYU law school dean Worthen describes as “our democratic, federal, republican form of government,” but not all rule of law countries. If you were in a dictatorship, for instance, and you happened to be the dictator, the rule of law might very well amount to an imposition of your personal beliefs on others, provided you codify them.
I don’t think I pointed out that the prop 8 proponents punted, and indeed I don’t think I’ve pointed out much of anything about the strengths and weaknesses of Judge Walker’s opinion. My thesis is that the debate should be about the merits of the decision rather than on whether a federal judge should be deciding. Why? Because though both questions are debated, the latter is much more lopsided. I would like to understand why the church has chosen that latter question (whether a federal judge should be defining marriage) and sided with the less popular, and I would say much weaker, side. It seems more consistent with other LDS teachings and principles, as well as with the better supported logical argument, to say that Judge Walker got it wrong rather than to say that Judge Walker shouldn’t be making the call.
@Andy- I’m proud of you for engaging a constitutional analysis despite your lack of legal background. I think it’s good when Americans get better at understanding the constitution and its implications.
I think you’ve misplaced the focus a little bit when asking about the government’s prerogative to define and allowing people to vote to dictate the definition. The issue there is more balance of powers (legislative v. judicial) than it is federalism (states/people v. federal gov’t). My understanding of our system is that law making is done by the legislative branch (either directly or by representation) and that interpreting/saying what the law is is done by the judicial branch. It would violate the separation of powers for the legislative/voting folks to invade the judicial realm by performing the judicial function of saying what the law is. They have to be sneakier and control the judiciary indirectly by manipulating their supreme document via constitutional amendment.
As to the state having voted- I think you missed one of my main points. Because the right to marry is in the federal constitution, it needs a federal-level, and therefore nationwide, definition. Allowing a state unrestricted discretion over defining marriage opens the possibility that the definition will be narrower than the federal definition, which would violate the US constitution. The state can only define marriage in ways that don’t violate the federal definition. The easiest way to do this is to mimic the federal definition; another candidate would be to paint a broader definition.
@Matthew- It makes me laugh that both you and Andy have used “tyranny” to functionally demonize an opposition. Ah, the subtle power of word choice. I agree with your last two sentences.
@Seth- I had for my buddy Austin Baird the same jealousy you expressed . He always seemed to get dozens of responses. I love comments, they’re like Christmas presents or candy bars to me. If you’re right that it’s a good sign, I’m pleased.
I concur with the “just our evolving constructs of them.”
Does your “bottom line is…” sentence support my thesis that the debate should be whether Walker was right rather than whether he should be the decision maker? I’m with Matt on the request to elaborate.
@Peter- enter future snarky commenter #2! (Matthew being future snarky commenter #1). It sounds like you’re siding with Jefferson on the tyranny by an oligarchy of judges piece. I made my withering attack on that position in the original note so I shan’t reproduce it here.
To the extent that “the smart guy always wins” equals “the strongest presented position” wins, that sounds like a dang good system, ceteris paribus. I am exceedingly curious to see what a superior system would look like. The “a better way…” sentence doesn’t paint a concrete image and I’m struggling to picture it. Perhaps you could start by describing the procedures and decision makers in such a world.
@Andee- Pithily stated. I shall address this more when responding to Jana.
@Matthew- I agree that occasionally courts make bad calls. It seems indefensible to describe our system overall as ideal- but because I’m also hard pressed to find a better available system, I (and putatively our country) is willing to pay the cost in bad judgment calls. In the absence of infallible men and women to fill posts requiring human judgment, in seems no system will result in the absence of some level of cost in bad judgment calls. As we can only mitigate, rather than eliminate, such errors- it becomes the responsibility of those who want change to result from their criticisms to propose superior approaches rather than merely pointing out failings.
@ Jana- I agree with your contention as to effect on legal identity resulting from a definition expansion.
I don’t see the logic in your contention about homosexuals not being able to reproduce together. What is your definition of “reproducing together”? Since you can’t respond here I will posit what seems a reasonable dictionary definition: “the process of generating new individuals of the same kind from the parents.” The mechanism of inheritance in sexually reproducing species (and indeed all cellular life) like ours is DNA. Thus, is not a DNA contribution by both partners (throw in gestation by one of the parents too if you want) sufficient to make them biological parents? Picture partner A of a lesbian couple replacing the nucleus of partner B’s oocyte with her own fertilized nucleus, then either partner gestates the child. The resulting offspring will be genetically related to both lesbian parents. The biology here is inescapable.
You’ve also lost me on the third party discussion. If your standard is that bringing in a third party “differentiates these couples from heterosexual unions” and that “there is a difference between reproducing via a third party,” I will make two embryologic counters, each in the alternative, followed by a normative argument.
First counter: Will the usefulness of inherent reliance on a third party as a discriminator fail when the technology advances sufficiently to enable homosexual couples to be the two and only two biological parents of a child? For instance, all the instructions necessary to create a human egg are contained in each somatic cell of an adult male. Given the proper hormone and nutrient profile, totipotent cells (which as the name implies can become any type of human tissue) harvested from gay partner A could be stimulated to become eggs. The sperm of partner B could fertilize the eggs from partner A. The embryo (interesting sidenote- this embryo could be either male or female, while the counter situation in lesbians could only produce girls) could be implanted in a surrogate or, if you think gestation contributes to biological parentage, avoid the third parent by throwing the embryo in an artificial womb [though the device is not yet fully operational, much as the Death Star, many of its constituents are already employed. Three examples: 1) extracorporeal membrane oxygenation (ECMO), a functioning technique and a component of an artificial womb currently used within neonatal intensive care units for very premature infants. 2) Dialysis techniques could remove waste products generated during gestation. 3) Lactated Ringer's solution can be used to replace amniotic fluid] to gestate. Bottom line? A child with two and only two biological parents of the same sex.
In the face of these biological possibilities, is not the natural possession of all the inheritable material necessary for procreation sufficient to conclude that homosexual couples are inherently capable of reproducing together? Given that the gap between the current situation and the scenario I’ve described is purely technical, is there some articulable reason to wait for that technology to actualize before concluding that homosexual couples possess just as fully as heterosexual couples the essential inherent elements (i.e. the DNA) needed to reproduce together?
Second counter: If my argument that homosexual couples are inherently capable of two and only two parent biological reproduction fails for some reason, I argue in the alternative that to be fair, the standard of inherent reliance on third parties to reproduce must also be applied to infertile heterosexual couples who inherently rely on third parties. You noted that the operative word is "inherently." I would ask for your definition of inherent, which would engender testability. Since you can't respond right now I will again quote a dictionary: "Existing as an essential constituent or characteristic; intrinsic." The most essential biological constituent existing that we know of is DNA. For at least some subset of infertile couples the cause of infertility is an inherited genetic condition (such as two recessive alleles which when combined inhibit meiosis). Because these couples/individuals' third-party reliance was DNA-inher-ited, that reliance is inher-ent. For at the very least that subset of infertile couples whose infertility is inherent they fail to survive your standard. Assuming that my interpretation of "inherent" is reasonable, you must either 1) abandon the reproductive reliance on a third party as a discriminator or 2) abandon the claim of being fair in applying the standard unless you would also exclude this class of heterosexual couples.
Normative: Irrespective of the success of counter 1 or 2, I question the purpose of endeavoring to find reproductive differences on which to pin exclusion of access to marriage. Marriage traditionally is not strictly tied to reproduction. Parties that have undergone a hysterectomy or vasectomy, elderly people incapable of reproduction (I'd point out this infertility is also inherent, as we inherit senescence genetically), emasculated individuals, etc. are all permitted to marry. Thus, excluding homosexual people from the institution must be done on some other basis than reproductive capacity to avoid a conclusion of caprice.
As to the third question, if I understand it right (what other adult unions are you thinking of? What do “deserve” and “anything goes” look like?), the answer is fairly straightforward. Is a common statutory definition currently “a legally recognized union between a man and a woman?” If so, one candidate marriage definition that wouldn’t exclude homosexual couples but would exclude at least some other adult unions would be “a legally recognized union between a man and a woman, or a woman and a woman, or a man and a man.”
@Peter- I felt glad and happy when you turned my red herring clause on me. :) Tit for tat.
I find your “if it’s not deliberately in the Constitution” scheme unworkable, because Constitutional provisions have no practical meaning outside their interpretation. Example- say you have a right to free speech. Does that mean you can publish your opinion about Obama or state your stance on abortion to your sister? Perhaps. Does it mean you can punch Ralph Nader in the face? Maybe. Does it mean you can start a business? It’s possible. To find out which of these examples qualifies as an expression of free speech REQUIRES A JUDGMENT, an application of law to facts. The constitution is absolutely impotent absent an interpretation. Thus, quaffing about whether rights are written or not or deliberately in the Constitution or not doesn’t resolve the question of who interprets, as even explicit enumerated rights necessarily require a judgment call in order to mean anything. Someone has got to do it- what I don’t see in your statements is who that person or entity is. Is it Peter Brown? Oscar the Grouch? A magic 8 ball? Who?
Additionally, wouldn’t your position exclude fundamental rights not specifically enumerated in the Constitution? Are you prepared to cast aside federal protection of the right to privacy, the right to marry, the right to travel interstate travel, and the right to procreate? Any deliberate-ist/originalist of the ilk you’ve described must scratch those just for starters.
@Matthew- Your relevant examples bolster your equal protection claim.
The Plessy language (separate but equal) and Brown v. Board jurisprudence are germane to this context.
The criticism of Peter’s position about not caring about stare decisis seems merited. I don’t see how his standards could be maintained- every time a government actor needed to make a choice, it seems they’d have to come to him for a proper view on jurisprudence and constitutional interpretation. I for one am not comfortable with that, if for no other reason than one guy as a practical matter can’t make the number of judgment calls needed each day.
@Peter- Why sue a federal agency rather than the state of California? State law is subordinate to federal law in our system- it seems like you’ve reversed that hierarchy.
Same criticism as twice above on the originalist interpretation: who interprets the constitution? Also, are you proposing using a separate system for checking the voice of the people based on the amenability of the contested issue to easy/better changing of the peoples’ hearts? How would that determination be made in general- based on what criteria and who is the decision maker? How was that determination made by you in this specific case- on what criteria? These radical jurisprudential proposals are head scratchers for me. They all seem to rely solely on Peter J. Brown to work.
@Matthew – Nada here
@Peter- once again, the assertion of original intent. Once again, who makes the judgment call?
How is the judicial activism accusation relevant? How is judicial activism discerned generally? How was it evidenced in the Perry decision? Would you prefer the patient process of rational arguments when, as Matthew suggested, Alabama (sorry for picking on you Alabama) stripped LDS temple attenders of their driver’s licenses? If not, once again, how do you determine when to check the voice of the people quickly vs. the patient process of rational arguments, and who makes that decision?
I hear your argument about contractual benefits and the government being interested in economic civil unions (contracts). I think this is a viable system, as from what I understand some other countries function with a similar system.
The term marriage has significant legal meaning under the federal constitution, under federal law, under every state law, and in all three branches of government at both the federal and state levels. The conclusion that marriage is merely a religious term and a private matter flies in the face of these facts.
Well all, I've got to head to regional conference with Sister Beck, Elder Holland, and President Packer. Peace out,