Chapter 6: Rebuttals to Common Anti Same-Sex Marriage Arguments

Though I have advocated against SSM, I am not opposed to understanding the opposition.  Powerfully arguing for the other side elicits the strongest responses for the pro-traditional marriage camp.  Traditional marriage defenders can then use these strong responses in their advocacy efforts.  Below, I respond to common anti-SSM arguments.  Most responses are edited excerpts from various facebook, in-person, blog, and email conversations I’ve had in recent months that bear on the issue of same-sex marriage (SSM) or Proposition 8. 

I have grouped the anti-SSM arguments into four interrelated categories.  I will give each category its own section, then address specific anti-SSM arguments within each category.  The outline:

Parenting/children Consequences

·         Opposite-gender parenting is best

·         Studies of gay parenting are fatally flawed

·         SSM harms children

·         Don’t change the rules for children

·         We should subsidize marriage to propagate society

·         SSM is about private indulgence; marriage is a public institution

·         Relationship with both biological parents

Religious Consequences

·         SSM threatens my family’s religious values

·         Churches will have to perform SSM

·         Religious liberty

Legal Consequences

·         SSM would lead to marrying animals, etc.

·         The state has no interest in gay marriage

·         State recognition of marriage is not a universal right

·         Individual states should be allowed to define marriage

·         The federal judiciary violated the sovereignty of the people by overturning Proposition 8

·         We can’t trust the courts

·         SSM violates gender equality

·         Opposing SSM is about gender, not sexual orientation

Societal Consequences

·         History shows that monogamy is best

·         SSM distorts the traditional definition of marriage

·         Gay promiscuity will taint marriage by reducing marital fidelity

·         SSM “weakens marriage:” promote domestic partnership or civil unions instead

·         SSM contributes to family breakdown

·         SSM will make civilization come crashing down

Parenting/Children Consequences

Opposite-gender parenting is best

Interlocutor: “Studies show irrefutably that children do best when raised by a mother and a father. Those who do best of all are raised by their own biological parents. ‘Millenia of human experience tell us that marriage is society's way of ensuring that the adults responsible for creating children take responsibility for raising them. When we recognize marriage between a man and a woman in our laws, we are endorsing that idea.[i]’  If we really want what is best for children, we would want them to have a mom and a dad.”

My response: Ah, please permit an endeavor to refute the irrefutable! The studies you reference are incapable of concluding that children do best in arrangement X unless those studies also examined how children fare in arrangements Y, Z, and all other candidate arrangements. The logical flaw in your claim is that most if not all of the studies you implicitly reference did not juxtapose same sex parent households against opposite gender and biological parent opposite gender households. [instead, they likely compared biological parent to 1) non-biological parent opposite gender, 2) single parent, and/or 3) one-biological parent opposite gender families]. Thus, until the studies include same sex families, they are incapable of concluding as to the superiority of A over B, and in any case will never be capable of claiming a "best" conclusion since many conceivable family arrangements (such as same-sex 2 and only 2 biological parent households) are still untested (and indeed, as yet, untestable). At least some studies suggest that same-sex couple households parent as well or better on average than opposite-gender households[ii].

The claim was made that recognizing marriage between a man and a woman endorses the idea that adults responsible for creating children take responsibility for raising them.  This ideal is not threatened by SSM since 1) man/woman marriages are still recognized and 2) same-sex couples will be equally responsible for raising the children they create.

Also, an advocate of homosexual marriage could acknowledge the relevance of gender differences and the value of opposite gender parenting, yet still advocate on other grounds such as fulfilling the duty to bring children into the world in two parent households or on the basis of providing for a right to marry.  Or in the alternative they could argue, as Biblarz and Savci did in 2010: "Contrary to popular belief, studies have not shown that ‘compared to all other family forms, families headed by married, biological parents are best for children’ ... Research has not identified any gender-exclusive parenting abilities (with the partial exception of lactation)... ‘very little about the gender of the parent seems to be distinctly important.[iii]’”  There are those who say: “now that I am married, I see what my wife does that I cannot possibly do.[iv]”  They argue that the divine roles of men and women are both essential to marriage and family.  On the related subjects of Mormon feminism and gender equality, I wrote:

“Now, I'm going to hone in on the gender discrimination and examine it using the comparison to the issue of racial discrimination as evidenced in "separate but equal" (see Plessy[v]) and "separate educational facilities are inherently unequal" (see Brown v. Board of Education[vi]) language. No doubt brighter authors than I have done this very exegesis before.  I feel more uneducated on this subject cluster than on other recent posts.  Notwithstanding, here goes:

Plessy: Family Proclamation :: Brown: Adam and Eve story.  Allow me to explain. 

Much has been made of the "separate but equal" roles of men and women in the church.  The divine role of women and the doctrine of motherhood is abundantly taught.  (See for more detail, “LDS Family Ideals versus the Equality of Women: Navigating the Changes Since 1957,[vii]” 2008).  The Family Proclamation teaches:

"By divine design, fathers are to preside over their families in love and righteousness and are responsible to provide the necessities of life and protection for their families. Mothers are primarily responsible for the nurture of their children. In these sacred responsibilities, fathers and mothers are obligated to help one another as equal partners."  (Separate responsibilities but equal partners- separate but equal, Plessy's language)

This paragraph expounds separate responsibilities for fathers and mothers, though it doesn't go as far as to say in what ways the two genders' natures differ (that they differ is implied by "Gender is an essential characteristic of individual premortal, mortal, and eternal identity and purpose.").  I term this illustration of the archetypal family the Modern Family.  Because I want to get to other points, I will not exhaustively research authoritative statements which support a conclusion that, for instance, the church teaches that men are built better for providing or that women are built better for nurturing children than the opposite gender.  Although I would point out that although women and men might complement each other well generally, the general man and the general women never marry- instead, there is always a specific man and a specific woman, each with a unique attribute profile.  If the father is more nurturing than the mother, or the woman more capable and inclined to protect or provide than the man, then the couple has a tougher job complying with the articulated roles than a more stereotypical couple.  If one's profile of characteristics is largely unchosen, this result seems difficult, unfair, and unnecessary- with the seeming response of "tough luck."

Anyway, back to my intended points.  The Adam and Eve story is one of the ideal marriage and family, and provides an archetype to follow (I term their arrangement the First Family).  It seems that Adam and Eve's approach wouldn't fit in very well under the modern church's depiction of gender roles.  That could be okay - the modern church is for the modern world, and Adam and Eve were in a different world, a new world, where they had the opportunity of establishing the culture rather than responding to it.  However, the juxtaposition might shed some light on the doctrine of gender roles.  I think it paints more of a picture of equality than the "separate but equal" conception extant today. (Though I don't here, I might also juxtapose an interesting third option chronologically nestled between the First Family and the Modern Family, namely the Polygynous Family, which like the other two, seems to have garnered at least occasional endorsement by God).

Back to the First Family.  Adam and Eve did everything together.  In Moses 5, it seems there wasn't a division of labor resulting from different innate, gender-specific tendencies.

Did just Adam do the providing?  No, they worked together: "Adam began to till the earth, and to have dominion over all the beasts of the field, and to eat his bread by the sweat of his brow, as I the Lord had commanded him. And Eve, also, his wife, did labor with him.”

Did Adam take the lead as voice in their prayers, receive commandments, and pass them along to his wife?  No- they prayed and worshiped and received revelation together.  Notice the "they's": "And Adam and Eve, his wife, called upon the name of the Lord, and they heard the voice of the Lord from the way toward the Garden of Eden, speaking unto them... And he gave unto them commandments, that they should worship the Lord their God, and should offer the firstlings of their flocks, for an offering unto the Lord."

Did Eve do the predominant share of nurturing?  Here the answer is less clear, though again the partnership is referenced as the teaching entity: " And Adam and Eve blessed the name of God, and they made all things known unto their sons and their daughters." I think there is no doubt that women have a nurturing nature- but I'm not convinced that men lack this ability.

LouAnn Brizendine, The Male Brain, 2010: "The stereotype of the stoic, unemotional male is again contradicted by research showing that the daddy brain and mature male brain are profoundly devoted and nurturing" (pg. 132).

I also don't think it is clear that men lack the level of nurturing that women exhibit, though men may nurture differently than women.  I think men often nurture in similar ways as well, though- e.g. see the male-only priesthood qualities from D & C 121 that sound very feminine and nurturing, such as "persuasion, by long-suffering, by gentleness and meekness, and by love unfeigned 42 By kindness, and pure knowledge, which shall greatly enlarge the soul without hypocrisy, and without guile-  43 Reproving betimes with sharpness, when moved upon by the Holy Ghost; and then showing forth afterwards an increase of love toward him whom thou hast reproved, lest he esteem thee to be his enemy."  Thus, I think men are equally qualified to teach and nurture children.  At the least I think they could unlock the ability if socialized to do so.

I also see little reason on a "nature" argument why women are not cut out to be providers.  Women are strong and smart and can do about anything with some training (as can men generally as well).  Eve didn't seem to balk at earth tilling.  Indeed, history shows that women have brought home the bacon as much or more as men for the bulk of human history[viii].

One ill of promoting a Modern Family over a First Family model is that some of those "misfits" (e.g. 1: *Jessica Stott, a young and high-accomplishing Ph.D. professor in a graduate school program at BYU’s Marriott School of Management.  Her husband is content to be a stay-at-home dad and his wife the breadwinner.  Or 2: *Sarah Stewart, a high-accomplishing, full time MPA student and mother of four) receive condemnation, both direct and indirect, within the church.  Who can blame them, when the Family Proclamation states: "By divine design, fathers are to preside over their families in love and righteousness and are responsible to provide the necessities of life and protection for their families. Mothers are primarily responsible for the nurture of their children."  Both couple examples I illustrated are misfits.  In the First Family model, however, such a couple is not out of line, as long as the between them the couple provides and between them the couple nurtures.  The First Family model treats the couple as a unit, rather than an association of a father and a mother to whom different duties independently attach.  The First Family approach seems to treat the couple[ix] as “one flesh[x]” better than the Modern Family framework.

Personal preference, I like the First Family approach more than the Modern Family approach.  It seems to be a better policy in an ideal and in a practical world because men and women really are equal[xi], and avoiding role differentiation allows the couple greater flexibility in fulfilling the parenting and other responsibilities incumbent on them as a couple.  I think in a First Family, if there is any failure in the performance of parenting duties, then each is held individually responsible for the breach, as each individual is accountable for the entire parental performance.  In addition to apportioning responsibility, I see great benefit in a tighter peer/equality relationship.  As the Brown decision says, separate is inherently unequal.  This justification is bounded, though- for there are some physical differences at least between the average man and average woman (see e.g. Brizendine's The Female Brain and The Male Brain).  As mentioned above, though - because unique individuals marry rather than averages, less discriminating of roles seems a propos (instead, assign roles to the couple rather than to individuals, which further incentivizes unity).  Men and women "are alike" - at least to God...

As to the nurturing argument, I would argue that men nurture differently than women on average, but not necessarily worse or less[xii].  Also, is nurturing more important than the male-associated roles of providing, protecting, and presiding, all identified in the Family Proclamation?  One must necessarily conclude as much to exalt women in relation to men on a nurture basis.[xiii]”

The bottom line is this: emphasizing gender distinctions strengthens some couples at the expense of others. The alternative of attaching responsibilities to spouses, parents, and couples does a better job of promoting gender equality without losing the important functions of emphasizing providing, nurturing, and protecting.  Gender equality also more accurately describes the real world of marital partners.  Spouses are always equal; a model emphasizing stereotypical gender differences only sometimes holds for a particular couple (e.g. a man is not always more firm with the kids or more cut out for the marketplace than his spouse- and trying to force an individual into that majoritarian mold can be counterproductive for a particular family).  As one replied to the commenter above who spoke of his wife’s unique abilities:

“How do you know she’s able to do those things as a result of being female, not just as a result of being another human being with different experience, talents and abilities than yours?[xiv]” 

Now we return to empirical evidence shedding light on the parenting ability of same-sex couples.  One study came out in 2010 in Applied Development Science: "Our findings revealed, for the first time, that young children adopted early in life by lesbian and gay parents were as  well-adjusted as those adopted by heterosexual parents. Our results suggest that lesbian and gay adults can and do make capable adoptive parents. We found no significant differences among families headed by lesbian, gay, or heterosexual parents in terms of child adjustment, parenting behaviors, or couples’ adjustment.[xv]"  (see also studies referenced in chapter 5’s “Parenting” section)

That an opposite sex couple parents better than a single parent does not imply that an opposite gender couple parents better than a same-sex couple. In any case, most of the children of same-sex couples are adopted- which means that the choice is not as frequently between an opposite and a same sex  couple as parents, but instead between having no parent and having two parents.  At the least, for the vast majority of adopted children, the ideal of being raised by the child’s two biological parents is simply not feasible.  Indeed, SSM may well encourage more adoption- and there is little doubt that a loving SSM home is better for a child on average than no adopted home[xvi]. 

Additionally, we must remember some of the salutary effects on children.  According to the 2000 Census Bureau, between 166,000 and 300,000 children (and perhaps up to 2 million[xvii]) live in a SS couple household.  These numbers are likely larger now and are likely to persist.  Thus, it would make good policy sense from a benefit-to-children perspective to encourage the marriage of the same-sex couple:

“[S]uppose that Ann makes use of artificial insemination to conceive a child, Bernard.  Suppose further than Ann is raising Bernard with her partner, Nancy… Permitting [Nancy] to adopt can have a number of benefits for the child, e.g., he will be eligible to be covered under Nancy’s employer-provided insurance policy.  However, in some jurisdictions, a non-marital partner is not allowed to adopt unless the parent is willing to surrender her own parental rights.  Thus, in some jurisdictions, unless Nancy and Ann were married or Ann was willing to surrender her own parental rights, Nancy would not be permitted to establish a legal relationship with Bernard, and Bernard would be unable to avail himself of various financial benefits to which he would have been entitled had he been recognized as Nancy’s child…Nancy might be more willing to invest in her relationship with Bernard if that relationship were accorded legal protection.[xviii]”

If Ann were to die in a car crash, Bernard might be sent to a home with people he doesn’t know if Nancy is a legal stranger to him- despite their relationship.  (interestingly, even in those jurisdictions that allow second parent adoptions to compensate for the unavailability of marriage to same-sex couples, the second parent option reduces the incentive to marry and increases the number of children raised out of wedlock, partly because unmarried heterosexual couples  have begun to avail themselves of second parent adoption[xix]).  Similarly, if Anna and Nancy break up, Anna could forbid Nancy from seeing Bernard, even if it would have been better for Bernard to maintain relationships with both of the adults who raised him since infancy.  At the conclusion of a week-long online debate about SSM on The Economist, the proponent of SSM said of the opposition lead:

“Maggie Gallagher's latest non-sequiturs illustrate yet again that there is no good reason for the government's exclusion of gay couples from marriage. Denying marriage to committed couples does nothing to address any of the things she ostensibly worries about: divorce, men and women's "freighted" relationships, "unintended" children, etc. If Ms Gallagher's concern is that the children of different-sex couples be raised in wedlock, why then does the NOM [National Organisation for Marriage] not advocate abolishing divorce or compelling different-sex couples that conceive "unintentionally" to marry? Wouldn't that make more sense than withholding the critical safety net and meaning marriage brings from same-sex couples, thereby punishing them and the children they are raising? Why is the entire programme of the so-called National Organisation for Marriage—the flood of money its funnels into attack laws and constitutional amendments—obsessively about barring gay people from marrying, rather than anything that would actually help anyone's life, including real children who have the parents they have?[xx]”

We should also consider benefits that accrue to the aged.  More and more adults are acting as caregivers for their own parents- and without marital benefits such as being covered by a spouse’s insurance policy or the increased security that derives from a formal commitment, the adult child may be simply unable to stop work to care for an aging parent[xxi] (or, for that matter, a sick or disabled child or a sick spouse).  These consequences may result in a greater burden on the state to pick up the slack and inferior care for the spouse, child, and/or aged parent.

Last, imposing optimal parenting requirements for marriage strikes most of us as ridiculous.  We wouldn’t stop a poor couple from getting married, or a minority, or someone raised in a divorced household, or someone that uses drugs, or doesn’t intend to procreate, irrespective of how those factors might contribute to their parenting fitness:

“[A]s a general matter, we do not impose an optimal-parent requirement on those seeking to marry.  Indeed, we do not even impose an optimal parent requirement on those seeking to adopt.  Nor would anyone think of proposing such a standard were this not a discussion of same-sex marriage or LGBT parenting.  That this criterion is suggested only in the context of LGBT parenting or marriage suggests that this criterion is not really embraced as the appropriate consideration to determine who may marry or adopt but, instead, is being used as a makeweight to justify the imposition of a burden on members of the LGBT community.[xxii]”

Studies of gay parenting are fatally flawed

Interlocutor: "Unfortunately, small sample sizes and other methodological problems make it impossible to draw conclusions from studies that directly examine the effects of gay parenting.[xxiii]” 

That conclusion is not merited.  Every study is less than ideal, but that reality vitiates confidence in conclusions, rather than making such conclusions impossible.  This is a well-known foul trick of argument known as the “call for perfection.”  The author seems to find empirical studies on gender complementarity in parenting sufficient to draw sweeping conclusions- if the author does not maintain a double standard, he at the least is not transparent about his threshold acceptability criteria.  He joins other SSM opponents who, ironically, criticize the validity of SS parenting research, yet simultaneously claim that children fare less well in such families[xxiv].  Also, the author's conclusion relies on the authors' review of all studies to this point that directly examine gay parenting, which comprehensive research isn’t likely.  If the author has reviewed all such studies and found them wanting for the reasons he states, it is not justified to characterize all such studies as having small sample sizes because future studies might very well prove methodologically sound and have large sample sizes. 

SSM harms children

Interlocutor: "So if I admit that there exists stable, committed, and functional same-sex households I have to concede that same sex marriage wouldn't harm children?  If the purpose of this nation is to promote the general welfare, why not start with those people who have no voice in court or the law—who literally only have the ability to cry if the people charged with their care decide that there are other, more important, more "enlightened" things than their welfare.[xxv]" 

A persuasive point, though it advocates against premarital reproduction, divorce, drug use, step-parenting, single-parenting, co-habiting before marriage, and other family arrangements short of two biological parent households as much as (or more than) homosexual marriage.  Also, there still is little data about child outcomes in homosexual marriage since only a few countries (such as Spain) have recognized homosexual marriage for a significant amount of time, and even then the results may resist generalized application.  Also, one should remember that class of people who will likely be brought into the world that, but for homosexual marriage, would not.  If a particular child will not be conceived but for the homosexual relationship, it is very difficult to argue that the child is harmed.  How do you compare a blighted life to no life at all?  This is the classic “non-person” problem- how do you harm someone who doesn’t yet exist?  Picture an empty bench- on it sits Greg, the child that was never born because the ban on gay marriage resulted in his mother choosing a single life over the homosexual union Greg would have been born into (e.g. via a sperm donor). As much as life sucks for some people, most nonetheless overwhelmingly prefer to exist.  If you contend that Greg will simply be sent to another family, by that same token it becomes difficult to criticize normal, fertile couples who choose to have no children.  Additionally, you must consider the babies who “only have the ability to cry” and will benefit by having the couple raising them be married.

Last, the higher the “optimal parent” requirement for marriage access, the fewer the parents that qualify- meaning both fewer children overall and fewer children in stable households.  Until you apply an “optimal parent” requirement for marital access to heterosexuals (for instance against the less fecund, the poor and uneducated, those who grew up in divorced homes, or any other category shown to result in decreased child outcomes), it is unfair to apply it only to homosexuals.

Don’t change the rules for children

Interlocutor: "But let's take a few steps back and try to see the longer view—one in which children haven't come into the picture yet, but face a world which has changed the rules about the where, when and why of their existence. [xxvi]"

The rules have already significantly changed, and will likely continue to do so.  For instance, sex and reproduction used to be tightly correlated.  With birth control two people can have sex thousands of times with no offspring.  Similarly, couples can reproduce prolifically without ever having sex (e.g. via IVF).  Also, the civil rights movement of the 60's and the passage of the 19th Amendment both occasioned sweeping, yet welcome, change.  Your argument would be better if based on the consequence bundle of a particular change rather than “changing the rules for children” generally.

We should subsidize marriage to propagate society

Interlocutor: “Collecting a deceased spouse’s social security, claiming an extra tax exemption for a spouse, and having the right to be covered under a spouse’s health insurance policy are just a few examples of the costly benefits associated with marriage. In a sense, a married couple receives a subsidy. Why? Because a marriage between two unrelated heterosexuals is likely to result in a family with children, and propagation of society is a compelling state interest.[xxvii]” 

This argument is deeply flawed in that it fails to recognize the tens of thousands of children in America that are being raised in one- or two- homosexual parent households.  Where do these children come from?  The majority come from previous marriages.  There are many ways for lesbian and gay couples to have a family with children absent previous heterosexual relationships, though.  Adoption, artificial insemination for lesbians, mixing sperm to fertilize a donated egg subsequently gestated by a surrogate for gays, etc. have and do result in homosexual parent households.  Thus, denying marriage to these parents harms/fails to benefit their children.  Similarly:

“To the extent California has an interest in encouraging sexual activity to occur within marriage… the evidence shows Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage… To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.”

The argument also assumes, without merit (as evidenced by the failure of governments to take reasonable steps to restrict marriage to reproducers) that reproduction is the primary or only state interest in marriage:

“[S]tates have never required spouses to have an ability or willingness to procreate in order to marry.[xxviii]”

SSM is about private indulgence; traditional marriage is a public institution

Interlocutor: "not only are you saying that it is more important to support private indulgences than public institutions[xxix],"

Not necessarily.  As argued above, there are legitimate grounds for advocating same-sex marriage as a public institution (e.g. homosexual couples are more likely than homosexual singles to bring children into the world, and many of the public benefits of marriage and family are not limited to the opposite genderness of marriage).  It is inappropriate to characterize same-sex marriage as a private indulgence- this appellation reflects a sex-centered conception of the proposed institution t\hat fails to acknowledge the richness that same-sex marriage can provide two people that are committed to and sacrifice for each other.  Generally we don't consider heterosexual marriage to be a private indulgence or all about sex- is there a basis for an opposite conclusion about homosexual marriage?  Especially since homosexual people can privately indulge without marriage?

Interlocutor: “The biggest danger homosexual civil marriage presents is the enshrining into law the notion that sexual love, regardless of its fecundity, is the sole criterion for marriage.[xxx]” 

My response: This conclusion also is not merited.   Is sexual love the sole criterion for heterosexual marriage? Are there not many other significant reasons why individuals choose to marry?  

“Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse… ‘[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.’ Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship.[xxxi]”

The incidence of premarital sex, at least, belies the conclusion that marriage for heterosexual people is just for sex- and there is no reason to presume contrarily for homosexual persons.

Relationship with both biological parents

Interlocutor: "Now, I don't know about you, but I am grateful to have a relationship with both of my biological parents. [xxxii]"

The relationship of children in homosexual families with one of that child's biological parents is likely to be absent or abrogated as compared to a two-biological parent household- so you imply a strong point[xxxiii]. However, many children never know their fathers either because they skip town or they were conceived IVF by an anonymous donor, but your complaint doesn't also target them, which it should on a basis of opposing action that induces identity issues.  Would you also legally prohibit out-of-wedlock births, divorce, and IVF, and putting kids up for adoption from that are in abusive, two-biological parent homes?  Also, it is not clear that SSM would increase the number of children not raised by their biological parents (many children in SS homes are adopted and would not be raised by their biological parents regardless of the marital status of the SS couple).

  

Religious Consequences

SSM threatens my family’s religious values

Interlocutor: “The argument I always hear is, "Well, they just want to be happy, and it doesn't invalidate my marriage if they have theirs." To that, I say, "yes and no." It does not directly affect my marriage (meaning if homosexual couple X gets married, my marriage doesn't blow-up or something). However, it perpetuates a moral value that I see as negative and subjects my family and children even more to that negative value. Values and principles, in my opinion, are crucial in our country, but appear increasingly lacking due to the power of empiricists. A similar argument might be, "It doesn't hurt me directly if they legalize prostitution in my town, because I'm not going to a hooker anyway. Let those people have the fun they desire." Does that make the situation morally right? Does that create a culture that is hostile and non-supportive of the religious values I espouse? It certainly does... and, in that way, it certainly affects me and my family. Anyway, the moral to my ramblings is, sometimes we follow our gut and our values rather than the data.”

My response: 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—let’s 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. 

Plus, it is essential to consider the welfare of homosexuals, who by and large are by banned from marriage since nature has predisposed them away from romantic and erotic interest in the opposite sex (which, though not the only reasons to marry, are important and useful ones) and made SSM very attractive and potentially very beneficial to them:

“If there are 12 million gay Americans, that would be more than the population of any but the seven largest states, not a trivial number.  Even if the number were much smaller, each gay person is an individual seeking the good life.  Not one of those lives in inconsequential… no one can make decent social policy without considering both sides of the equation.  To assume that “we” (the heterosexual majority) should deny millions of Americans any chance to marry if allowing them to marry would cause “us” any harm or inconvenience at all is to account gay welfare as essentially worthless... A one-eyed utilitarian is a blind utilitarian.[xxxiv]” 

Following your gut or values is appropriate, but doesn’t get one very 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 an effective way to convince lots of someones to make consequential decisions based not on their guts or the “dangers of logic,” but instead on your guts, you might find the uphill battle discouraging.

“A commitment to the First Amendment prescription of the separation of church and state necessarily precludes government from establishing and enforcing a religious theocracy.  But it does not require a banishing of religious beliefs as a legitimate source of shared moral values in the public arena.  Conversely, the fact that a moral value is derived from a religious belief should not shield that moral value from contestation in the public domain[xxxv] (emphasis added).”

Lex plus laudatur quando ratione probatur - the law is the more praised when it is supported by reason.

Churches will have to perform SSM

Interlocutor: “How do you think allowing gay marriage would affect the church's right to refuse marriage to whom they want? with so much hate swirling against the church in connection to prop 8, do you think its infeasible to expect there to be suits against the church for refusing gay members to marry in the temple or even be married by a bishop on the grounds of preventing their constitutional right to marry how they want? unlike other churches, where different pastors may have different views and some may refuse where others won’t, the Mormon church is absolute in their position against gay marriage, which prevents a gay couple from getting married in the church forever.”

My response: It seems unlikely that suits against the church for refusing same-sex temple marriage would succeed.  The freedom of prejudice for religions is robust in the United States and other countries.  On what law or grounds would such a suit proceed?  Why is the church experiencing none of this type of trouble in Canada, a country that has legalized SSM?  Why isn’t the church running into these problems in Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont, where same-sex marriage is legal?  Private religious practice is given high deference in the federal US courts (and indeed in many if not most nations), 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 property tax exemptions (in some states) for church-owned public accommodations if the church blocked access based on sexual orientation[xxxvi] (see endnote for further discussion of the bounds of burdening acts of discrimination by religions).  Noncompliance with the restriction against supporting political campaigns that “have the effect of favoring a candidate or group of candidates[xxxvii]” is also a tax exemption risk.  The unlikely loss of 501(c)3 tax exempt status based on refusal to perform SSM 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.  However, that risk is extremely low:

“Almost certainly not… the major case under federal tax law is Bob Jones v. United States… a charitable organization… they have to serve a public purpose and not be contrary to established public policy they must be in harmony with public interest and the institution’s purpose must not be so at odds with community conscience as to undermine public benefit… unlikely for a court to do that… unlikely for the IRS to even bring that action to begin with.  The IRS is a relatively conservative federal agency… extremely unlikely that the IRS would try to bring sort kind of action to take away the church’s tax exempt status based on their views on same-sex marriage.[xxxviii]” 

Speaking of the loss of tax-exempt status resulting from a religion not performing SSM, one commentator wrote: “This argument truly stretches the bounds of existing legal doctrine... No religious organization, other than Bob Jones University, has ever had its tax-exempt status revoked because of discriminatory rules that it applied on the basis of race or any other category.[xxxix]”

Plus, the church is not a university, as Bob Jones was; religions are typically accorded greater deference than universities.  Last, the church’s gender inequality is more threatening than orientation discrimination.  The church’s questionable and non-transparent political lobbying jeopardizes their status more than their views or practices regarding same-sex marriage[xl].  Said the Connecticut Supreme Court:

“Finally, religious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations.[xli]”

As in other countries, a practical work-around if the battle heats up would be for the church to mandate that all church members wanting to be temple or LDS clergy married get married civilly by a justice of the peace or equivalent first.  (The church already requires its members to do this before a temple sealing in some countries with adverse legal landscapes).  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)?

Writing on a similar subject in a Square Two article, Ben Hertzberg wrote[xlii]:

“The prospect of legal gay marriages should disturb Mormons less than it disturbs conservative Christians.  This is the case because of the difference between the relationship of LDS marriage to the State and the relationship of traditional Christian marriage to the State. This difference gives Mormons resources to deal with a state that marries gays that I believe conservative Christians lack.  Marriage as it is traditionally defined is one of the last legal institutions in which Church and State share roles. If a couple is married in a Baptist Church (or a Mormon temple) the minister or sealer acts on authority delegated to him from the State.  This is the purpose of issuing marriage licenses.  Church and State cooperate in marrying couples.  In a sense, then, marriage is one of the last remnants of the Western, medieval, theocratic partnership of Church and State.  This partnership is reflected in the liturgy of Christian marriage ceremonies: they are large events done in Churches (or sometimes out of doors) and the couple invites their community—they invite the public to witness the occasion.  Now, gay marriage is seen (at least by conservative Christians) as ending that partnership—the State and the Church will no longer work together to marry and support heterosexual couples only.  Mormons, in contrast, have never really worked in tandem with the State on questions of marriage—at least, not to the extent that other Christians have.  This is because the LDS definition of marriage is fundamentally different from the State’s definition and from the traditional Christian definition.  Mormons, of course, marry “for time and all eternity,” not “’till death do you part.”  (And, of course, Mormons once practiced plural marriages, another important difference between both the State and other Christian definitions.)  The State has never been so bold as to even attempt to marry couples in some way that would be binding after death; indeed, the suggestion that it ever could is laughable.  And this difference in definitions of marriage is reflected in the LDS marriage ceremony, just as the definition shared between other Christian Churches and the State is reflected in their liturgies.  Mormons do not seal couples in public.  They instead perform their most important marriages in private, behind the closed doors of the temple.  The explicitly private nature of the Mormon marriage ceremony reflects the distance between the LDS understanding of marriage and the State’s (the public’s) definition of marriage.  Mormons, then, already have more than one hundred years of experience in conducting a form of marriage that is not and cannot truly be ratified by the State.  This is not to say, of course, that the State’s performing gay marriages will not be a radical change for Mormons.  It will be.  But it will be a change that Mormons are more prepared to deal with than many other Christian groups—by virtue of our own private practice of eternal marriage.  We therefore should fear gay marriage less.”

Religious liberty

Interlocutor: “SSM is a threat to religious liberty.  Just look at Catholic Charities in Massachusetts- they stopped their adoption work because of legalized SSM.  Or, take a look at education- if SSM is legalized, teachers that have a religious belief that SSM is wrong won’t be able to speak out at their schools.”

My response: I don’t follow the logic here.  It’s well established that the government is interested in refraining from preferring religious practice A to religious practice B (Establishment Clause[xliii]).  Example 1- let’s say an organization called Christchurch Charities, informed by its religious conscience, places adoptees only in married same-sex and opposite-sex families.  If the state prohibits or fails to legalize SSM, that religion’s religious practice is inhibited because they can no longer place children with same-sex couples, since their religious belief is to only place adoptees in homes where the parents are married.  Example 2:  Cathy Johnson is a 7^th grade science teacher.  Her religious belief is that homosexual and heterosexual people are equal and therefore should both be allowed to marry.  To the extent that a teacher opposed to SSM would be inhibited by a SSM legalization, Cathy would be inhibited by a SSM prohibition.  The long-standing tradition in America is to permit religious practice within certain defined bounds, imposing those limitations impartially on all religious practices.  “We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it… We do not believe it just to mingle religious influence with civil government, whereby one religious society is fostered and another proscribed [prohibited] in its spiritual privileges, and the individual rights of its members, as citizens, denied." -Doctrine and Covenants 134:4, 9. Thus, the religious liberty argument doesn’t advance an anti-SSM argument because it necessarily cuts both ways.  Said the Connecticut Supreme Court:

“Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before [the court]. Our concern is with [our state] [c]onstitution as a charter of governance for every person properly within its reach.[xliv]”

Additionally, Catholic Charities was accepting public funds, and was therefore bound to obey the laws of the state because the people deserve a say in the expenditures of public funds.  LDS Family Services, because it is privately funded, still adopts babies out only to straight married LDS couples.  Their sexual orientation and religious discrimination is allowed because they don’t accept money from the state. 

On a similar subject, Clay Essig wrote:

 “We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others” (D&C 134:4; emphasis added). Isn’t it strongly held “religious opinions” regarding marriage and family that are fueling these “pro-family” campaigns which severely “infringe upon [marital and familial] rights and liberties of others”, specifically our Gay and Lesbian neighbors?

Growing numbers of churches see the good in their Gay and Lesbian members and want to offer them the blessing of marriage. If we Latter-day Saints support the majority to legislatively deprive the religious freedom of those churches to marry according to their beliefs, aren’t we opening the door further for the majority to vote away our right to practice our LDS religious beliefs, severely undermining essential religious freedom? “… but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion” (D&C 134:4).

Do we practice what we preach? 

Consider some forms of public or private devotion. Do they include prayer, scripture study, baptism and marriage? Since we believe the proper form of prayer is to conclude “in the name of Jesus Christ, Amen”, should we pass a Constitutional amendment forbidding any other forms of prayer? Should we Latter-day Saints constitutionally define baptism as “only by immersion by one having authority from God” and legislatively forbid other forms of baptism? How can we maintain integrity when we continue to support political movements, laws, State and National Constitutional amendments that are contrary to our own declarations in our own LDS scriptures?[xlv]”

Such constitutional amendments often have more than merely legal consequences.  A 2010 article from the American Journal of Public Health found that SSM bans might decrease the mental health of the LGB population:

“Psychiatric disorders… increased significantly between waves 1 and 2 among LGB respondents living in states that banned gay marriage for the following outcomes: any mood disorder (36.6% increase), generalized anxiety disorder (248.2% increase), any alcohol use disorder (41.9% increase), and psychiatric comorbidity (36.3% increase)… These psychiatric disorders did not increase significantly among LGB respondents living in states without constitutional amendments. Additionally, we found no evidence for increases of the same magnitude among heterosexuals living in states with constitutional amendments.[xlvi]” 

The author of When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage studied the effects of SSM in the Netherlands, which has legalized SSM since 2001.  She argued similarly in her section, “Reducing Minority Stress: The Value of Inclusion:”

“Social science suggests that experiences of discrimination or unequal treatment can have harmful effects on physical and mental health.  This ‘minority stress’ has been linked to higher blood pressure… and to other negative health outcomes for lesbian, gay, and bisexual people[xlvii].  The psychologist Glenda Russell’s research shows that life in an atmosphere of antigay politics has similar negative effects on the mental health of LGB people.  Recent studies show that stigma and homophobia reduce the quality of same-sex relationships… it seems reasonable to predict that removing formal discrimination through policies such as opening up marriage to same-sex couples will have positive mental health effects on individual LGB people (including those who are single)… my own experience makes me wonder how the ability to marry could not change LGB people in some profound and positive way, especially for those LGB people who decide to marry… Moving from a position of exclusion to one of inclusion is a change that is likely to have a positive psychological effect on some people.[xlviii]”

In another forum, she said:

“Research also shows that getting married has been good for same-sex couples. They are more committed to their relationships, feel more secure, perceive that their children are better off and receive more support from their families than when they were unmarried. Having the right to marry makes gay people feel more included in society overall, a profound change that extends to unmarried gay people and, one hopes, to young people who are struggling to accept being gay, lesbian, or bisexual.[xlix]”

These arguments match my experiences of talking with many gay and lesbian people who very much view issues such as SSM as matters of equal rights, and feel in important ways like second-class citizens.

Last in this subsection, a quote from Ben Hertzberg:

“If it is the case that the issue Mormons should be most concerned about is the protection of our religious liberty, then I worry that the Proposition 8 campaign was a mistake.  As the homosexual community’s reaction to our apparent “victory” indicated (deplorable though it was) campaigning against gay marriage alienates the very parties with which we will eventually have to forge some sort of compromise and feeds the flames of the culture warriors who relish continued battle.  It also works to undermine the possibility of such a compromise—a compromise on which I believe our continued flourishing as a religious group importantly and essentially different from traditional, conservative Christianity depends.[l]”

Legal Consequences

SSM would lead to marrying animals, etc.

Interlocutor: “Allowing gay marriage would just be the ball at the top of the hill. Next: Polygamy (FLDS are already challenging that law in Texas), marriage with children, marriage with other animals, marriage with rocks, etc. If we change marriage to include everything, it will eventually mean nothing.”

My response: 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]?  Yes.  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). 

Now I will speak more directly to the polygamy contention.  First, I point out that hundreds of human cultures have condoned polygamy, and at least the vast majority of them were neither preceded by, contemporaneous with, nor succeeded by SSM.

Also, though there is exhaustive literature on the number of partners issue, I will mention but one reason cluster that argues for two-partner-only marriage:

“If I were to marry three or four people, the pool of potential caregivers would be larger, but the situation would, perversely, make all of them less reliable: each could expect one of the others to take care of me (and each may be reluctant to do more than any of the others are willing to do- a common source of conflict among siblings who need to look after an aging parent).  The pair bond, one to one, is the only kind which is inescapably reciprocal, perfectly mutual.  Because neither of us has anyone else, we are there for each other. [li]”

Independent of this and other justifications that could be advanced to defend two-partner-only marriage, it suffices to say that the same limits which apply to OSM can and should apply to SSM, and for the same reasons. These limits include relatedness, number of partners, and age.  SSM does not include “everything;” rather, it merely expands narrowly to include (or discontinue excluding) SS couples. If polygamy is to win recognition, it will have to do triumph its own merits, as it is not a necessary result of legalizing SSM.

Interlocutor: “SSM would allow a father to marry his 24-year-old son, or Sally to marry Christina, a sick friend she’s caring for.”

My response: Yes, Sally could marry Christina.  Seth could marry Christina, the sick friend, equally well- in both cases the same restrictions apply as to age, consent, etc.  As to the father marrying his son, what is to stop him from marrying his 26-year-old daughter?  The answer: a statute to that effect.  Whatever relatedness restriction good for the goose is good for the gander, and could be applied equally to same and opposite gender couples.  However, there is some reason to think that incest laws may be unconstitutional, especially if the elevated birth defect risk argument fails[lii].  Lawrence v. Texas may be used to argue that the right to privacy is unconstitutionally violated by legal restrictions on consensual incest, especially when unrelated persons with genetic disorders are allowed to marry despite their elevated risk of passing on a birth defect.  In any case, it is important to remember that 1) homosexual relationships are less reproductive on average than heterosexual ones and thus have less risk of contributing to birth defects and 2) incest laws will stay or be overturned on their own merits independent of the success of failure of SSM.

There is no necessary logical tie between SSM and polygamy, incest, or marrying children which doesn’t also apply to OSM:

“Gay people are not asking for the legal right to marry anybody they love or everybody they love… Instead, homosexuals are asking for what all heterosexuals possess already: the legal right to marry somebody they love.[liii]”

The state has no interest in gay marriage

Interlocutor: "Some argue that homosexual marriages serve a state interest because they enable gays to live in committed relationships. However, there is nothing stopping homosexuals from living in such relationships today.[liv]” 

How can one be certain of that?  Lack of recognition of marriage disincentivizes the commitment of homosexual unions economically and socially at least in ways similar to cohabiting heterosexual couples, which empirically have inferior parenting and individual outcomes as compared to married heterosexual couples.  For example, relatives are often more willing to give financial help to families where the parents are married compared to cohabiting- and this correlation may at least partly hold for same-sex couples as well[lv].  Also, both the state and the partners may be interested in marriage because of the comparatively superior equitable asset allocation that results upon relationship dissolution:

“The plaintiffs in marriage-equality cases do not say that they want to marry so that if they split up the property division and support rules that accompany divorce will apply to them.  Like all couples who plan to marry, they do not expect to divorce.  But the different rules for settling money issues at the end of a marriage versus an unmarried relationship can cause indefensible hardship.[lvi]”

Last, ‘the value of marriage as a signal to one’s partner and third parties of the committed nature of the relationship is lessened if the marriage is not legally binding.[lvii]”

State recognition of marriage is not a universal right

Interlocutor: “The debate over whether the state ought to recognize gay marriages has thus far focused on the issue as one of civil rights. Such a treatment is erroneous because state recognition of marriage is not a universal right.[lviii]”

My response: That point is debated.  For instance, the UN Declaration of Human Rights, article 16 states:

“(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.[lix]”

A right to marry has been recognized as a constitutional right in numerous Supreme Court cases (see e.g. the line of cases quoted in page 110 of Perry).  Thus, the prohibitions on cousin marriages and bigamy may later be found unconstitutional.  Even if cousin and bigamy prohibitions are found constitutional, a right to marry someone of the same sex may nonetheless be found constitutional under either due process and/or equal protection, and indeed has been so found under one or both clauses by both federal and state courts (e.g. Kerrigan, Perry, and Varnum).   

Individual states should be allowed to define marriage

Interlocutor: “On Constitutional grounds, my observations are that there are several SCOTUS decisions, both before and after Loving v. Virginia, that support the idea that states have the right to define the nature of the marital relationship within them (as state's have a vital interest in the organization of their societies) while individuals have the right to decide whether they want to enter into that relationship and with whom. Or, in other words, the individual’s right to marriage is subject to the state's definition.[lx]”

My response: What then would prevent a state from regulating marriage out of existence or prohibiting marriage altogether?  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 (or “floor”) 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.  Above this floor, it makes good federalist sense to allow states to experiment with age, relatedness, and other standards.  Also, I can see some wisdom in state-by-state SSM legalization[lxi], as incremental change is less likely to trigger the kind of deleterious “culture war” pushback and the perception of an overly active federal judiciary that sometimes result from sweeping national family law changes such as Roe v. Wade’s ruling on abortion.  On the other hand, like black people following Brown v. Board:

“[D]espite the harmful backlash experienced by the gay rights movement following marriage cases such as Goodridge, lesbians and gay men are nonetheless better off as a result of those cases…

Although it is understandable that so many gay rights supporters feel despair and anguish in the face of the severe backlash against gay rights…Brown and its aftermath teach us that backlash is a part and parcel of the history of civil rights struggles in this country.  Those struggles are, at their core, about getting the majority to give up privileges, both tangible and intangible, that reinforce their perceived superiority. The fact that, prior to Brown, laws and regulations kept blacks out of the white (and much better) schools created and reinforced the view in the minds of many whites that they were superior to blacks. And for years after Brown, many of those whites, especially in the South, did everything they could to retain the long standing regime of privileges that benefitted them at the expense of blacks.

Similarly today, the maintaining of the institution of marriage as exclusively heterosexual reinforces the views of many straight individuals that they are morally superior to lesbians and gay men because their relationships are more meaningful, valuable, and important. And despite cases such as Goodridge — indeed, because of cases such as Goodridge — many heterosexuals will do everything they can to maintain the long standing regime of privileges that benefit them at the expense of lesbians and gay men.[lxii]”

For more readings on the intersection of topics such as discrimination, equality, the courts, the constitution, popular sovereignty, and same-sex marriage, I have compiled the following list.  You may also email me for a document giving a one-paragraph summary of each at homosexualityperspective@yahoo.com.

·         Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629 (2010).

·         Sue Davis, Discrimination Through Direct Democracy: The Role of the Judiciary in the Pursuit of Equality, in The Judicial Branch, 375-400 (Oxford University Press 2005).

·         David A. Yalof, Courts and the Definition of Defendants’ Rights, in The Judicial Branch, 432-458 (Oxford University Press 2005).

·         William N Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279, 1283 (2005).

·         Kevin J. Worthen, Who Decides and What Difference Does it Make? Defining Marriage in Our “Democratic, Federal Republic”, 18 BYU J. Pub. L. 273, 274 (2004).

·         Aileen Kavanagh, Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication, in Expanding the Constitution: Essays in Constitutional Theory (Grant Huscroft, ed. 2008) available at http://ebooks.cambridge.org/chapter.jsf?bid=CBO9780511511042&cid=CBO9780511511042A017.

·         Naomi Cahn & June Carbone, Deep Purple: Religious Shades of Family Law, 110 W. Va. L. Rev. 459, 497 (2007).

·         Glen Staszewski, Reason-Giving and Accountability, 93 Minn. L. Rev. 1253 (2009).

·         Martha Nussbaum, A Right to Marry? Same-Sex Marriage and Constitutional Law.   Dissent 56(3): 43 (2009). 

·         Monte Neil Stewart, Marriage Facts, 31 Harv. J.L. & Pub. Pol’y 313 (2008).

·         Julia Halloran McLaughlin, DOMA and the Constitutional Coming Out of Same-sex Marriage, 24 Wis. J.L. Gender & Soc’y 145 (2009).

·         Martha T. McCluskey, Thinking With Wolves: Left Legal Theory After the Right’s Rise, 54 Buff. L. rev. 1191, 1270 (2007).

·         Amy Wax, The Conservative’s Dilemma: Traditional Institutions, Social Change, and Same-sex Marriage, 42 San Diego l. Rev. 1059 (2005).

·         Andrew Koppelman, The Decline and Fall of the Case Against Same-sex Marriage, 2 U. St. Thomas L.J. 5, (2004).  Also, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006.

·         Louis Michael Seidman, Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory, 31 Harv. J.L. & Pub. Pol’y 135 (2008).

·         Carlos A. Ball, The Backlash Thesis and Same-sex Marriage: Learning from Brown v. Board of Education and its Aftermath, 14 Wm. & Mary Bill Rts. J. 1493 (2006).

·         Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 Iowa L. rev. 243,  (2005).

·         Judith E. Koons, Engaging the Odd Couple: Same-Sex Marriage and Evangelicalism in the Public Square, 30 Women’s Rts. L. Rep. 255 (2009).

·         Naomi R.  Cahn and June Carbone, Red Familes v. Blue Families: Working Paper, 18 University of Florida Journal of Law and public Policy, forthcoming; GWU Law School Public Law Research Paper No. 343, in possession of Brad Carmack and available at SSRN: http://ssm.com/abstract=1008544 (SSRN membership is free). 

·         Linda C. McClain, Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: from Values Polarization to Common Ground?, 77 UMKC L. Rev. 415 (2008).

·         Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 16 (2008).    

·         Robert M. Pallitto & Jason Hungerford, The Proposed Anti-Gay Marriage Amendment: The Constitution, the Law of Standing, and Liberal-Democratic Values, 17 Law & Sexuality 75, 79 (2010).

·         Ingrid M. Lofgren, The Role of Courts Vis-à-vis Legislatures in the Same-Sex Marriage Context: Sexual Orientation as a Suspect Classification, 9 U. Md. L.J. Race, Religion, Gender & Class 213, 239 (2009).

·         Emily K. Baxter, Rationalizing Away Political Powerlessness: Equal Protection Analysis of Laws Classifying Gays and Lesbians, 72 Mo. L. rev. 891, 907 (2007).

·         Andrew Olivo, Secrets and Lies: The Intelligence Community’s “Don’t Ask, Don’t Tell”, 12 Scholar 551 (2010).

·         Rachel A Shapiro, Conaway v. Deane: To Have and to Hold, From This Day Forward—Maryland’s Unfit Marriage to Federal Equal Protection Analysis, 68 Md. L. Rev. 957 (2009).

·         Jean C. Love, The Synergistic Evolution of Liberty and Equality in the Marriage Cases Brought by Same-Sex Couples in State Courts, 13 J. Gender Race & Just. 275 (2010).

·         William N. Eskridge, Foreward: The Marriage Cases- Reversing the Burden of Inertia in a Pluralist Constitutional Democracy, 97 Cal. L. Rev. 1785 (2009).

·         Ronald D. Rotunda, Fundamental Rights, 2 Treatise on Const. L. § 15.7 (4^th ed. 2010).

·         Rosalie Berger Levinson, Time to Bury the Shocks the Conscience Test, 13 Chap. L. Rev. 307, 356 (2010).

·         James A. Kushner, Equal Protection Standards in Specific Cases: Gays, Lesbians, and Sexual Orientation, Gov. Discrim. § 5:18 (2009).

·         Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1729 (2008).

·         Nelson Tebbe & Deborah A. Widiss, Equal Access and the Right to Marry, 158 U. Pa. L. Rev. 1375 (2010).

·         Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793 (2006).

·         Hernandez v. Robles, 7 N.Y.3d 338, 380-381 (2006). 

·         Strauss v. Horton, 46 Cal.4^th 364, 406 (2009) (applying the majority holding of In re Marriage Cases, 183 P.3d 384 (2008)).

·         Lawrence v. Texas, 539 U.S.558 (2003). 

·         Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 174 (2008).

·         Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (2006).

·         Varnum v. Brien, 763 N.W.2d 862, 896 (2009). 

·         Richard G. Wilkins & John Nielsen, The Question Raised by Lawrence: Marriage, the Supreme Court, and a Written Constitution, 83 N.D. L. Rev. 1393 (2007).

The federal judiciary violated the sovereignty of the people by overturning proposition 8

Interlocutor: “Then what is marriage? who defines marriage? is the government given that power, or is it the people? does the constitution define marriage? if not, as Brad [Carmack] said, how do you decide whether or not a right is being violated? The question here isn't the right of people to be married, it's the very definition of marriage. Some say that a homosexual union means marriage, and others say that it does not. It is perfectly within their rights to disagree. So, the question that I think Brad is getting at, is who gets to define marriage? the people, or the government (sounds like Brad sides with government, or the judiciary). But what is the government when it denies the will of the people? Sounds like tyranny.”

My response: Two 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 each for securing the blessings of liberty to their posterity, ensuring domestic tranquility, and providing for the common defense.  The five dollars means they agree (or consent, which is the term a positivist would likely use) 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 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- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (Tenth Amendment)].  Based on responses I've heard, this widespread illusion that the people of a United State still possess their full popular sovereignty is a cause of much misplaced angst.   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 his 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.  Again, it's still fine to argue that the Constitution was not properly interpreted [i.e. Judge Walker got it wrong].  However, "If we oppose persons who hold particular offices or the policies they pursue, we are free to vote against them or work against their policies. But we should not carry our opposition to the point of opposing their offices, or we weaken the institution of constitutional government" - Elder Oaks.  If one argues that Judge Walker/the federal judiciary shouldn't be interpreting the Constitution, the next question would be- who should interpret the Constitution instead? The Constitution is truly impotent absent some level of uniform and predictable application, which necessarily requires judgment.  Who makes the calls if not the federal judiciary?

Additionally, by failing to fight against the effect of Marbury v. Madison, we have arguably 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 constitutional 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.  Even if we assume for the moment that “we the people” haven’t lost/ceded to the federal judiciary that portion of power which defines the US Constitutional right to marry, shouldn’t national consensus be required to evidence the will of the people?

We can’t trust the courts

Interlocutor: “And I really don't care for centuries-old jurisprudence. Go ahead and take a stab at Roe v. Wade with me and that will tell you how much I care about case law setting precedent. If it's not deliberately in the Constitution, I remand the right to law-making with the people. I err on the side of democracy every time, even when they make historical mistakes.  I'm also not in favor of judicial activism. I prefer the patient process of rational argument to change the heart and minds.”

My response: 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 a poster of Ralph Nader?  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, quibbling 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 you?  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 interstate travel, and the right to procreate?  Any deliberate-ist/originalist of the ilk you’ve described must scratch those just for starters.

Also, how is the judicial activism accusation relevant?  Is not a judicial decision itself the result of a patient process of rational argument?  How is judicial activism discerned generally?  How was it evidenced in the Perry decision?

Last, would you prefer the “side of democracy” when, as *Brandon suggested, the Alabama (sorry for picking on you Alabama) majority stripped LDS temple attenders of their driver’s licenses?  If not, 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?

“That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

SSM violates gender equality

Interlocutor: “There is simply no other arrangement that can ground every human family in gender equality—companionate heterosexual monogamous marriage (as the essay entitled "Some Things Which Should Not Have Been Forgotten Were Lost[lxiii]" in this issue terms it) is simply “it.”  No gender unequal relationship (even if it is called “marriage”) and no gender apartheid arrangement (with a person of the same sex or with no other person at all) can ground the households of the human family in gender equality.[lxiv]”  Also, “If men and women live separate lives within their society, a hierarchy of men over women—with its attendant slide towards malignant patriarchy--is the inevitable result… It is only through the widespread existence of companionate heterosexual monogamous marriages that democracy, freedom, prosperity, and other goods such as state peacefulness can continue to have strong root and be sustainable.[lxv]”

My response: Does allowing an African American to marry another African American frustrate racial equality?  Should we instead require that an African American marry a Caucasian, or a Japanese person marry a non-Japanese, to promote racial equality?  How about religion- should we mandate Catholic-Jew weddings, and bar the pairing of two Southern Baptists, to promote religious equality? “One must wonder why it is necessary to prohibit same-sex marriage to promote gender equality when it suffices to permit interracial marriage to promote racial equality.[lxvi]” Allowing different-race marriage doesn’t evidence the state’s preference for or against endogamous same-race marriage.  Apartheid is an inappropriate comparison because apartheid mandates segregation whereas SSM is merely an option (an option which is likely to be overwhelmingly chosen by homosexuals- few straight people will likely marry someone of the same sex).  The offensiveness of miscegenation laws is not merely because of its privileging one race above another, but that race is simply not an appropriate basis for limiting or granting the privilege of marriage. Gender is inappropriate by the same token.  Last, what is the basis for concluding that patriarchy is the inevitable result of SSM?  Both men and women have equal rights in such a jurisdiction- what then would found the supremacy of the males?  Indeed, traditional marriage has historically promoted gender hierarchy with women receiving the short end of the stick.  Might not defense of that traditional hierarchy itself perversely result in fewer women entering the institution?  Much of the tradition-based anti-SSM rhetoric is vulnerable to that risk.

Opposing SSM is about gender, not sexual orientation

Interlocutor: “Most of the arguments for Prop 8 that I have heard are based on gender, not sexual orientation. Those are two different things... That is about gender, not sexual orientation.[lxvii]”

My response: I concede that gender and sexual orientation are different. However, the sexual orientation discussion is related because the gender discrimination has a disparate impact on gay and lesbian people. To illustrate, I draw from the related field of employment law. Let’s say the Tucson police department refused to hire those who know Spanish and have lived more than a year in Mexico. Though this is not on its face race or national origin discrimination, the policy has a “disparate impact” on Mexican immigrants compared to other applicants and would thus violate federal discrimination law. Similarly, because gay and lesbian people are overwhelming represented in the population of those seeking same-sex marriage, gender discrimination “disparately impacts” a group of people based on their sexual orientation.  After writing this I came across a similar passage:

“Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.[lxviii]”

Alternately, I could rebut gender discrimination on its own merits, as Judge Walker did in the Proposition 8 case (Perry v. Schwarzenegger). Essentially, the argument is this: if American citizens are granted the right to marry a woman, it violates equal protection to give that right only to men. Legal privileges may not be denied on the basis of sex. This is, again, the same issue as voting- is the substance of voting the participation of a citizen in democracy, or is it the male-only definitional aspect? Similarly, is the substance of marriage the consensual, recognized union of two adults (amongst other elements), or is it the opposite-gender definitional aspect? I respect the position that the substance of marriage is that opposite-gender definitional aspect- but I hope both sides would agree that there is at the least much more to marriage than its opposite-genderness.  Said Perry:

“Marriage has retained certain characteristics throughout the history of the United States.  Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. The spouses must consent to support each other and any dependents.  The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life.[lxix]”

Regarding sexual orientation and discrimination resulting from a state SSM ban, the Connecticut Supreme Court found:

“[W]e agree with the plaintiffs’ claim that sexual orientation meets all of the requirements of a quasi-suspect classification. Gay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society. The characteristic that defines the members of this group—attraction to persons of the same sex—bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens. Because sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so. Gay persons also represent a distinct minority of the population. It is true, of course, that gay persons recently have made significant advances in obtaining equal treatment under the law. Nonetheless, we  conclude that, as a minority group that continues to suffer the enduring effects of centuries of  legally sanctioned discrimination, laws singling them out for disparate treatment are subject to heightened judicial scrutiny to ensure that those laws are not the product of such historical prejudice and stereotyping…

‘‘[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.’’ In re Marriage Cases, supra, 43 Cal. 4^th 842…

[lxx]”

Societal Consequences

History shows that monogamy is best

Interlocutor: “Good old fashioned monogamy just happened to be the most successful societal structure from an evolutionary point of view (or monogamous marriage happened to be practiced in Western Europe which through Jared Diamondesque factors came to dominate the world).”

My response: Yes, monogamy is highly conserved historically and cross-culturally, indicating its evolutionary fitness as an institution.  Counterexamples (such as the matrilineal Musuo in China) are few. On the other hand, polygyny seems to have been fairly common: “According to the Ethnographic Atlas Codebook, of 1231 societies noted, 186 were monogamous. 453 had occasional polygyny, 588 had more frequent polygyny, and 4 had polyandry", and interestingly the males in those relationships (polygyny) tend to live on average 12% longer.   However, homosexual relationships, especially reproductive ones, either couldn’t or haven’t been given much chance to prove themselves yet- so it’s inappropriate to discard them so quickly on an ‘evolutionarily unfit’ basis.  They should at least be given their day in court first. 

However, even if they are less “fit,” what justification is there for using evolution as a filter of family types, especially when the very strains of the colander are not natural, but rather agentic, meaning that we choose them as a society?  That’d be sort of like saying “we’ll see if evolution will favor the corn stalk I planted,” then either tending or poisoning it and concluding that nature has spoken.

SSM distorts the traditional definition of marriage

Interlocutor: “Gay marriage and traditional marriage cannot coexist any more than we can logically conclude that there is no difference between a man and a woman. A heterosexual relationship and a homosexual relationship are not the same, and to call them both “marriage” is a distortion of an obvious and self-evident reality; whether one is better or worse than the other does NOT need to nor should it enter the public discourse and legal debate; it only masks the real truth. We simply need to be honest and pursue a course of equality, while at the same time recognizing the differences. The equality is achieved through equal recognition and benefits, and the difference is recognized through calling one by one name and the other by another. Marriage has always been defined as opposite gender, so what logic is there to change this name? Do we need to get rid of the names "men" and "women" and replace them with “it” or “unisex” or call “women” “men” in order to achieve gender equality?... The voice of the California people did NOT discriminate, and it did NOT promote inequality: it only said that a name should be preserved from distortion.”

My response:  I appreciate your points. I concede that marriage has predominantly been an opposite gender institution over time.  The traditional definition argument fails, though, for two reasons: first, it is a well-known fallacy; two, it is not clear what traditional marriage really looks like, and that same-sex marriage is less in keeping with traditional marriage than its absence. 

First, an appeal to tradition is a popular is-ought fallacy[lxxi].  There might be a successful, independent "ought" argument, but it won't derive from "is." An easy example illustrating why this is a fallacy: “Slavery is what we’ve always done in Georgia; thus, emancipation is a bad idea.”  A similar example would be the very traditional ideas of gender inequality and racism.  There must be some argument besides mere tradition to advance the anti-SSM ball.

Second, there is significant historical evidence of same-sex marriage in many cultures[lxxii]; thus, same-sex marriage is not bereft of precedent and thus not clearly non-traditional.  I also note that marriage has also historically and predominantly been a union between two persons whose sexual orientation is or is assumed to be toward the gender of the partner- in which case, the subset of same-sex marriages between homosexually oriented people is traditional.  Last, the traditional definition argument has failed in two important, comparable contexts before: voting and interracial marriage.

Voting:

At the time of the suffrage movement, the traditional definition of voting was by men only[lxxiii].  Imagine if the traditionalists won, but conceded some “ballot-casting” benefits to women—say, they could cast ballots for state issues and candidates but were prohibited from “voting” for the President and U.S. Senators and Representatives.  (This is similar to granting domestic partnership benefits and adoption privileges to same-sex couples but denying them marriage.)  Voting would then come to have a narrow meaning based on its exclusion of women.  As decades passed and competent, visibly equal women citizens were continually barred from the privilege of “voting,” “ballot-casting” would come to be viewed as more legitimate than “voting” and would likely replace voting as the preferred democratic participation (much as I fear civil unions compete with marriage- though perhaps with time and consensus, one would prefer civil unions- especially if marriage is saved as an instrument of inequality).  The definition of voting had to be expanded to include women or voting would remain discriminatory by definition and would become increasingly unaccepted in an increasingly equality-recognizing society.  Allowing women to vote does not distort nor is it a threat to the word "vote," even though the definition changed.  And yes, to respond to the “replacing ‘men’ and ‘women’ inquiry”: calling men and women "person" or "citizen" does indeed have a great track record of promoting gender equality.

Interracial marriage:

Some of those who opposed interracial marriage made a definitional argument as well, contending that miscegenation is not marriage, and “to call it ‘marriage’ is a distortion of an obvious and self-evident reality.”  Similar “destroying the sanctity of marriage” rhetoric was also wielded vociferously to oppose the legalization of interracial marriage.  The interlocutor says it is futile to ignore the “obvious and self-evident reality” that men and women are different.  Indeed, it would also be inappropriate to deny that black and white people are different: their skin color is visibly dissimilar!  The question is not whether differences exist; it is whether differences matter.  As popular awareness increased of lifelong-committed black/white couples who raised families and love each other and are equal and similar in every other way, miscegenation laws looked increasingly ludicrous in a Constitutional republic “dedicated to the proposition that all men are created equal.”  Here, as in voting, it became expedient to look at the substance of the institution, not its past definition, in order to preserve it.  Were miscegenation excluded today because it “distorts” the definition of marriage, marriage would suffer loss of legitimacy and popularity because of the taint of discrimination enshrined in its definition.  Similarly, some straight, opposite-gender couples may begin to request civil unions so as to eschew the same-sex-excluding institution of marriage.  One straight man/woman couple in Britain made just such a request (though perhaps for different reasons) in November 2010[lxxiv]. 

More and more same-sex couples are conspicuously parenting, reproducing, and keeping life-long commitments of love and caretaking to each other:

“Constitutional amendments or not, gay and lesbian families are not going back into the closet.  One-third of female same-sex households and more than one-fifth of male same-sex households include biological children under eighteen.  Eight U.S. states and the District of Columbia currently allow a child to have two legal mothers or two legal fathers.  And 40 percent of the nation’s adoption agencies report that they have placed children with gay or lesbian parents.  This is a reality that won’t go away.[lxxv]”

In a legal and societal environment that denies them marriage, the heightened awareness occasioned by their very presence contributes to marriage’s decline as marriage is defined more by who it excludes[lxxvi] than the purposes it fulfills and the obligations it imposes.  Unfortunately in my view, committed same-sex couples often become walking advertisements for the legitimacy of cohabitation and the irrelevance of marriage. 

In the country where SSM has been legal the longest (the Netherlands- since 2001), “The Dutch are quick to say, ‘There is no gay marriage here—it’s just the same marriage for everybody.’  And it’s obvious when you think about it.  The legal status is the same for same-sex couples and different-sex couples, so there is no need for a separate term like ‘gay marriage’ or ‘same-sex marriage.’  A better term for the subject… would be something like ‘equal access to marriage for same-sex couples.[lxxvii]’”  Similarly, we no longer speak of miscegenation, but only of marriage- because the legal status is the same for mixed-race and same-sex couples.

Said one LDS member:

“How can our own families possibly truly love, accept and support us when they are told to use their money, time and means seeking to destroy our agency to live in loving, stable relationships? What message and harm result when we are repeatedly taught about the temporal and eternal blessings of marriage and family but are then told in word and action that we, God’s Gay and Lesbian children, are inherently so bad that we do not deserve any of those blessings, or anything that resembles those blessings in this life. We are taught love, marriage and family are good and of God… except for us… that we are so vile that somehow merely participating in marriage and family would cheapen and undermine all marriages and families; as if Gays have some kind of marital cooties that will degrade the sanctity of all marriages and destroy civilization as we know it.  Did granting slaves freedom cheapen and undermine freedom for all or did it actually strengthen freedom and increase the numbers of those willing to fight to maintain it? Did allowing women the right to vote weaken and undermine democracy and society or did it strengthen and broaden it? Did allowing God’s Black children the priesthood destroy the sanctity of priesthood or defile the temple? Or did it actually strengthen the priesthood and purify the temple through diminished prejudice and increased love and unity?[lxxviii]”

As noted above, defenders of tradition because “it’s always been that way” or because “it has passed the test of time” must distinguish their support from also endorsing slavery, gender hierarchy, and racism- all which “passed the test of time” and functioned for centuries.  Though fiercely traditional, all these institutions were flawed, and overturning them proved a superior alternative to maintaining the status quo from both a deontological (all people should be treated equally without regard to gender or race being the germane duty) and a utilitarian perspective (the greatest net benefit accrues by overturning compared to the status quo).  Legalizing SSM is superior to the alternative of maintaining the opposite gender-exclusive status quo for the same types of deontological and utilitarian reasons.  I close with the words of the Connecticut Supreme Court:

“Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice. To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others.[lxxix]”

Gay promiscuity will taint marriage by reducing marital fidelity

Interlocutor: “Studies show that gay men have on average more than 250 partners.  It is women that tame male promiscuity- and women would be absent from male-male marriage.  ‘The chaos of sexual irresponsibility (especially infidelity and promiscuity within marriage) will grow, and the moral expectations of the basic institution of society will fade as the sexual ethic of gay and lesbian lifestyles is embraced as marriage.[lxxx]’”

My response: I will make four responses.

Response 1:

It would be unsurprising that gay men on average are more promiscuous than straight men.  They lack (generally) the civilizing institution of marriage, approved sexual outlets, and societal acceptance compared to straight men.  Also, the area of the male brain that processes thoughts about sex is 50% larger on average than the female brain, and men’s brains are practically saturated with testosterone[lxxxi]. Males are more visually oriented when it comes to sex, and the number of thoughts about sex that sexually mature males have per day is on average several times that of their female counterparts of the same age.  Though there may not be a strong link between sexual desire and promiscuity, it would be unsurprising that gay men, like straight men, are more sexually active, more sexually creative, and interested in a greater number of sexual variety and sexual partners than women.  It is not altogether unlikely that there would be more straight sex, including more sexual partners, were women as interested in sex as men are- and thus it would be unsurprising to learn that gay men are on average more promiscuous than straight men.  However, the figure you cite greatly exaggerates gay male promiscuity.  The 250 average you cite came from a San Francisco Bay Area sample recruited from bars, sex clubs, and sex-cruising spots[lxxxii].  The consensus numbers are more likely similar to these descriptions:

“Now it does appear that a significant minority of American gay males do have lots of sexual partners.  Moreover, the median American gay male does have somewhat more sexual partners than the median straight male (likely ten to twenty lifetime partners for gays as opposed to five to ten for straights…).[lxxxiii]” 

The General Social Survey found that straight women reported having had on average three sex partners since age 18, straight men six, and gay men ten[lxxxiv].  Thus, gay men are not on average as hyper-promiscuous as you claim.  Plus, it may be that a minority of gay men are responsible for the predominance of the promiscuity- and it could be argued that group is less likely to enter SSM than the less promiscuous subset.

Response 2:

Homosexuals may be asexual, on average, more often than heterosexuals (though the following finding is limited since it was not based on a random sample):

“An online poll suggests that there is an overrepresentation of gays and bisexuals among asexuals, with 11% of the asexuals polled self-identifying as gay, 24% as bi, and only 43% as straight[lxxxv].  One hypothetical explanation is that among sexuals, large percentages are homo/bi-romantic or homo/bi-physical but they identify as straight because their sexual attractions are exclusively hetero, whereas among asexuals the diversity of romantic and physical attractions comes to the forefront. Alternatively, asexuality may be an effect of some of the same prenatal biological factors that cause homosexuality/bisexuality, in which case the correlation may be a result of a common origin. Another way of looking at the poll data is that a gay person is about 8 times more likely to be asexual than a straight person, and a bisexual person is about 18 times more likely to be asexual than a straight person (assuming a 3% prevalence rate in the general population for self-identified gays and also 3% for bi).[lxxxvi]” 

Response 3:

It is well-established that men are more promiscuous than women[lxxxvii]- and that includes both heterosexual and homosexual men.  However, lesbian couples do not contain men- yet few if any who raise the promiscuity contention would permit SSM for lesbians, even if lesbians exhibited on average even greater fidelity that straight couples or straight women.  If marital fidelity were truly the aim, then there would be no reason to bar lesbians- in fact, they may be preferred to opposite-sex couples who, due to the fact that they each include a man, may be on average more promiscuous.

Response 4:

“Remember that two-day, four-part Marital Aptitude Test you were required to pass before you were allowed to get your license?  Remember when the social worker visited your home and interviewed your neighbors to make sure you were faithful enough to your partner to qualify for marriage?  Remember how, before they issued your license, the authorities looked up your age group and ethnic group and religious group to check that the odds of your staying married were up to par? No?...

[T]he fidelity double standard—the insistence that gay people become model marital citizens before they can have the right to marry—is the bitterest of all the ironies in the gay-marriage debate, and also the most twisted… [Critics] treat gay people not as individuals but as averages… it is certainly possible for [a gay couple] to stay faithful to each other, and many do, just as many straight couples do not.  Even if all gay-male couples were adulterous, their number would not approach that of adulterous heterosexual husbands.  But all such considerations are deemed inconsequential, because the gay average is below par.  One wonders: Exactly what proportion of gay men would need to be faithful in order to earn homosexuals the legal right to marry?  Seventy-five to 80 percent- the male heterosexual average, if you trust surveys?  Ninety percent? And how many heterosexuals would agree that their own legal right to marry should depend on the average fidelity of other heterosexuals?[lxxxviii]”

Barring SSM because of the promiscuity of gay men penalizes both homosexually oriented men and women for not living up to the rules of a club they’re excluded from, predicts without merit the future behavior of a group of people, assumes that any increase in heterosexual couples’ divorce or adultery would be unacceptable regardless of costs to homosexuals, and applies a fidelity prerequisite to homosexuals that is not applied to heterosexuals.  As with fertility (see chapter 4), it seems that by exposing inconsistencies we have unearthed yet another façade- one that is no more pro-fidelity than the fertility-based SSM opposition was pro-fertility.  Instead, it is merely anti-SSM.

SSM “weakens marriage”: promote domestic partnership or civil unions instead

Interlocutor: “If SS couples want health benefits and hospital rights for their partner, then sure, give them civil unions or domestic partnerships that include those benefits- but do not, under any circumstances, give them marriage.  SSM weakens the institution of marriage.”

My response: I will now show one reason cluster why SSM strengthens, rather than weakens, marriage.  Prohibiting SSM has led SS couples to creatively promote alternate institutions such as second-parent adoption, civil unions, domestic partnerships, cohabitation, etc.  To the extent that heterosexuals avail themselves of these marriage competitors, marriage is disincentivized[lxxxix] as a result of banning SSM.  Said Jonathan Rauch, author of Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America:

“The main and great benefit of SSM, however, would be its normalization of marriage.  Marriage depends for its success on its uniqueness and its universality.  Those, in turn, depend on two principles.  One is ‘If you want the benefits of marriage, you have to get married.’ The other is ‘Marriage is for everyone- no exclusions, no exceptions.’ Gay marriage reinforces both principles.  It makes marriage not just a norm (the one for heterosexuals) but the norm (for everybody). In doing so, it offers the best hope of stopping the proliferation- aided, perversely, by the anti-gay-marriage movement- of marriage-like and ‘marriage-lite’ alternatives.[xc]”

Many same-sex couples perceive that these second-class “alternative” institutions evidence that their relationships are not as valuable or worthy as opposite-sex couples’ relationships.  Indeed, a significant portion of the harm alleged by black-white couples who were forbidden to marry under miscegenation laws was their dignitary interest.  Ordering that the couples be allowed access to the gold standard that is marriage appropriately recognized the equality of same and mixed race couples.  Similarly, the dignitary interest of same-sex couples is not satisfied by a “back of the bus” type concession typified by civil unions and domestic partnerships.  It is unsurprising that many same-sex couples refrain from availing themselves of these separate-but-equal, Plessy-like alternatives[xci], but when marriage is available they frequently jump on board[xcii].

Civil unions and domestic partnerships threaten marriage for two reasons. 

1) They compete with marriage, i.e. many homosexuals and some heterosexuals have[xciii] and will likely in coming years avail themselves of some or all of the benefits and responsibilities associated with each: 

“The importance of marriage for society's general health and stability also explains why the commonly mooted alternative to gay marriage—a so-called civil union—is not enough…Some gays think it would be better to limit their ambitions to that, rather than seeking full social equality, for fear of provoking a backlash…

Yet that would be both wrong in principle and damaging for society. Marriage, as it is commonly viewed in society, is more than just a legal contract. Moreover, to establish something short of real marriage for some adults would tend to undermine the notion for all. Why shouldn't everyone, in time, downgrade to civil unions? Now that really would threaten a fundamental institution of civilisation.[xciv]”

2) They devalue the understanding of marriage in comparatively suggesting that marriage is either A) merely a contract between two people, B) a bundle of benefits, or C) both:

“To understand how to preserve the health of marriage as a social institution, and also to understand why there is no substitute for same-sex marriage, it is necessary to understand where marriage gets its special power: how it works.  And this depends crucially on understanding that marriage is not merely a contract between two people.  It is a contract between two people and their community.[xcv]” 

I remember this “two parties + community” idea of marriage sticking out to me when I read Bruce Hafen’s Covenant Hearts.  This construct of marriage is buttressed by noting that private contracts can take place between only two partners, whereas marriage must take place before a magistrate or clergyman; essentially, a third party is always present to symbolize the public’s interest in the union (usually, there are many guests as well).  The author of When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage studied the effects of SSM in the Netherlands, which has legalized SSM since 2001.  She wrote:

“As a deeply rooted social and cultural institution, marriage is powerful in ways we might not always appreciate… [the strong reaction of a father to his daughter’s marriage] illustrates the profound meaning and value that the act of marrying has for many people other than the two getting married.  [M]arriage is an experience that connects the couple to other people in their social circles—whether the couple wants it or not.  Ironically, at a time when many demographers take for granted the ‘deinstitutionalization of marriage’ for heterosexual couples, that is, the fading away of the social and legal meanings of marriage that structure how married people live their lives, the experiences of gay and lesbian couples suggest that marriage has a continuing relevance and meaning.[xcvi]”

Third-party presence is not as highly conserved in civil unions and domestic partnerships, and is almost wholly absent from cohabitations.  These three marriage competitors, by virtue of their diverse expectations and understandings, don’t possess what marriage does- a clear, bright-line understanding of the difference between married and non-married.  Very few understand what a civil union in a particular state means, or what expectations do and do not attach to a particular jurisdiction’s domestic partnership, nor even when someone is domestically partnered or civilly united.  The definitions of domestic-partner programs, for instance, vary by sponsor[xcvii].  There is much less confusion about what marriage means and who is and isn’t married- and it this “standard package” clarity itself which contributes to marriage’s power.  (I would also make the ancillary note here that in a pluralist, church-and-state-separate society like America, this reason also argues for keeping civil marriage rather than “getting government out of the marriage business.[xcviii]”  Taking government out means a more case-by-case, intrusive evaluation of whether or not two people are married.  The loss of a common marital currency impoverishes the institution.  For this and other reasons, I would argue against the vociferous position of at least one friend of mine that government should stop regulating and distributing marriage).

Thus, the “common currency” aspect partially explains the magic of marriage (for a rebuttal of this position which argues that “Marriage is not the right dividing line,[xcix]” see Nancy Polikoff’s 2009 Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law, chapter 7, “Valuing All Families Under the Law.”  Another reason marriage is the gold standard is that it ties benefits to burdens in many informal and formal ways.  Legal benefits, societal expectations of caretaking and commitment, etc. require marital parties to assume the burdens as well as the benefits.  Cohabitation is the most egregious offender in decoupling burdens and benefits, and most traditional advocates eschew it as a marriage alternative:

“What [conservatives] miss is that a growing number of homosexuals are acting married and being regarded by their heterosexual peers as married in all but law.  The risk is that the culture and the law will part ways as gay people set up what amount to common-law marriages, becoming spouses unofficially but cohabitants in the eyes of the law.  The very distinction between marriage and cohabitation blurs as couples’ behavior, rather than their legal status, comes to be accepted as the dividing line… the growing visibility of unmarried gay couples may legitimize cohabitation instead.  The marriage ban turns gays into walking billboards for the irrelevance of marriage.[c]”

Civil unions and domestic partnerships, in at least some of their varieties, join cohabitation in decoupling benefits and burdens (at least much more than marriage).  For instance, the mere addition of a domestic partner to an employee’s health benefit plan doesn’t pull much weight as far as society’s elevated expectation of that partner’s commitment or caretaking.  Marriage does:

“SSM, then, clarifies and reinforces the key message to people who are embarking on coupledom: marriage is for everybody, marriage is unique—no exceptions, exclusions, or excuses.  In doing so, gay matrimony bolsters marriage’s status as the gold standard for committed relationships, at a time when marriage’s competitors are gaining ground.  And in so doing it also preserves and strengthens marriage’s legitimacy and sustainability as a social and legal institution.  It stabilizes marriage for the long haul…

When it became obvious that blacks were not children and that women could think for themselves, the country had to make a choice: expand the franchise or see it lose its legitimacy.  Marriage’s position today is similar… straights-only marriage could soon have the dubious distinction of being ‘the discriminatory lifestyle choice.’ Cohabitation and partnership may emerge as ethically modern, while marriage becomes your father’s Oldsmobile.[ci]”

Also, “[T]he experience in Europe and in states like Vermont and California suggests that alternatives to marriage are useful only if they are transitional statuses on the way to full equality for same-sex couples.[cii]”

Though more justifications could be provided, a preference for SSM over competitors such as cohabitation, civil unions, and domestic partnerships seems well-supported based on the reasons above.    

SSM contributes to family breakdown

Interlocutor: “The breakdown of the family is one of the greatest tragedies in history.  Children are growing up in single parent families, growing up without a father, and the education and poverty and drug problems that result are drastic.  SSM weakens the institution of marriage.”

My response: You’ve pinned the crime on the wrong man.  SSM is not the cause of society’s ills.  More likely criminals for the lack of education, poverty, mental health, drug, and crime problems we observe include[ciii]:

·         Divorce

·         Negative influences from the media

·         Materialism

·         Absentee fathers

·         Families that lack a stay-at-home parent

·         Co-habitation before marriage

·         Pornography

·         Unemployment, and/or a poor economy

·         Parental drug use/abuse

·         Parental alcohol use/abuse

·         Drug use/abuse among teens or children

·         Teen sexual involvement/activity

·         Alcohol use/abuse among teens or children

·         Adultery

·         Poor schools or quality of education

The existence of social problems does not argue against SSM absent a causative link between SSM and those problems.  Causa proxima, non remota spectatur - the immediate, and not the remote cause is to be considered.  Said one in a law review article:

“Opponents of same-sex marriage like to talk about morality, but their eagerness to scapegoat innocent people for social problems that those people have nothing to do with has moral implications of its own.[civ]”

Rather, same-sex couples may instead build up the family:

“[A]lthough controversy surrounds same-sex marriage and lesbian and gay families with children, these families appear to be remarkably similar structurally to other post-modern families formed through adoption, ART, and remarriage. Many appear to hew both toward heteronormativity in terms of adult-affective binary and mutual relationships and toward post-modernity in their expansive kin networks and embrace of social and biological kin.[cv]”

Additionally, why wouldn’t pro-family organizations spend their limited resources attacking these more culpable criminals, rather than lynching the questionable-at-best criminal of SSM? Has the church come out as publicly or in as big a way on any (allegedly) pro-family issue besides opposing SSM since the Family Proclamation came out in 1995?  For instance, the church could instead focus its political capital on divorce, drug use, poverty, keeping one parent at home, media, or materialism.  They could even fight the emphasis on erotic/romantic love in a bid to strengthen marriage.  Over the last 50 years, erotic/romantic love has come to be viewed as an increasingly necessary reason to get and to stay married:

“In the eighteenth century, people began to adopt the radical new idea that love should be free to choose their marriage partners on the basis of love.  The sentimentalization of the love-based marriage in the nineteenth century and its sexualization in the twentieth each represented a logical step in the evolution of this new approach to marriage.[cvi]”

This shift is untraditional and has arguably hobbled marriage’s stability.  Very high expectations of self-fulfillment and romance have weakened the institution because such ends are not typically found quickly, easily, or in consistently abundant quantities in marriage.  Romantic love, for instance, is a decidedly brief biological reality (usually around six months[cvii]).  Even de-emphasizing (though not eliminating) erotic/romantic love as the or the primary reason to get and to stay married will arguably reduce divorce, increase healthy marital expectations, and thus strengthen marriage more than keeping the institution from homosexuals.  One of my favorite, and I think effective marriage-promoting quotes from President Hinckley:

“There seems to be a superstition among many thousands of our young who hold hands and smooch in the drive-ins that marriage is a cottage surrounded by perpetual hollyhocks to which a perpetually young and handsome husband comes home to a perpetually young and ravishing wife.  When the hollyhocks wither and boredom and bills appear, the divorce courts are jammed…. Anyone who imagines that bliss is normal is going to waste a lot of time running around and shouting that he has been robbed…. Life is like an old-time rail journey—delays, sidetracks, smoke, dust, cinders, and jolts, interspersed only occasionally by beautiful vistas and thrilling bursts of speed.  The trick is to thank the Lord for letting you have the ride.[cviii]”

Even if this angle is rejected as tenuous, certainly campaigns against adultery, divorce, and cohabitation are more effectively targeted than opposing SSM.  Advocating for maternity leave and health insurance benefits are two other candidates more amenable to the public square, if that’s where the advocacy is desired.  As argued in the “SSM ‘Weakens Marriage’” section, prohibiting SSM may weaken marriage more than promoting SSM.  As noted by other authors[cix], in concert with the church’s anti-homosexual approach in opposing the ERA, the church’s pro-family public/cooperative/political capital has been disproportionately allocated in anti-homosexual endeavors.

SSM will make civilization come crashing down

Interlocutor: “‘We must… defend [traditional marriage] if we are to preserve society as we know it.[cx]’  ‘[I]n our time, the inevitable, ultimate social consequences of letting everyone do their own thing‖ in regard to marriage—and specifically in regard to legalizing same-sex marriage—will be… devastating. A weakening of the institution of marriage is certain. As that institution is the foundation of social order, a weakening of social order is inevitable.[cxi]”  God rained down fire and brimstone on Sodom and Gomorrah for not doing everything they could to stomp out homosexuality.  Rome fell for the same reason.  SSM is a radical blow to the family.  The Proclamation on the Family explicitly warns that ‘the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.’ ”

My response: That is certainly a very serious concern.  However, there are three possible reasons why perhaps we should be cautious about an impulsive response to SSM based on the fear of God’s punishment.  Before expounding these three, however, I must inquire:  What exactly is the traditional family the interlocutor wants to preserve?

“When anti-gay advocates use the term ‘traditional,’ I always wonder what tradition and what time.  Do we support early 19^th-century traditional marriages when married women had no legal standing, could not own property, sign contracts, or legally control any earned wages?[cxii]” Said Valerie Hudson:

“If the telos of marriage is gender equality—a teaching of how the two halves of humanity are to relate to one another so that when new members of humanity are brought forth they will be taught this correct principle from birth—then the student’s question was right on the money.  “Traditional” marriage is simply not what LDS members believe marriage is, for “traditional” marriage is based on a hierarchy of men over women, and oppression of women in all facets of society based on the template found in “marriage.”  Given the greater light and knowledge revealed to the LDS, it would be abominable to stand together with those who advocate “traditional” marriage, for it is the opposite of what marriage means, we believe, to God.[cxiii]”

Wrote another:

“It is hard to think of a bigger affront to tradition than allowing married women to own property independently of their husbands.  In What is Marriage For?, E.J. Graff quotes a nineteenth-century New York legislator as saying that allowing wives to own property would affront both God and nature, “degrading the holy bonds of matrimony [and] striking at the root of those divinely ordained principles upon which is built the superstructure of our society.”  In 1844 a New York legislative committee said that permitting married women to control their own property would lead to ‘infidelity in the marriage bed, a high rate of divorce, and increased female criminality,’ and would turn marriage ‘from its high and holy purpose’ into something arranged for ‘convenience and sensuality.’  A British parliamentarian denounced the proposal as ‘contrary not only to the law of England but to the law of God.’[cxiv]”

The rhetoric sounds familiar. 

In her book, Marriage, A History, Stephanie Coontz shares her belief that “marriage adds something extra… the highest expression of commitment in our culture and comes packaged with exacting expectations about responsibility, fidelity, and intimacy… These commonly held expectations and codes of conduct foster the predictability and security that make daily living easier.[cxv]”  Many LDS people doubtlessly concur with her belief.  In the book Coontz details the radical evolution of marriage, which has experienced intense transition in the last two centuries. She noted that nearly every generation presumes that marriage was better in the preceding generation:

“[F]or thousands of years people have been proclaiming a crisis in marriage and pointing backward to better days.  The ancient Greeks complained bitterly about the declining morals of wives.  The Romans bemoaned their high divorce rates, which they contrasted with an earlier era of family stability.  The European settlers in America began lamenting the decline of the family and the disobedience of women and children almost as soon as they stepped off the boats…

‘The invention of a past filled with good marriages[cxvi],’ Kaler concluded, is one way people express discontent about other aspects of contemporary life. [cxvii]“

She continues, pointing out that most of the “new” family trends are actually old, and many of the old aspects are actually new:

“Furthermore, many of the things people think are unprecedented in family life today are not actually new.  Almost every marital and sexual arrangement we have seen in recent years, however startling it may appear, has been tried somewhere before.  There have been societies and times when nonmarital sex and out-of-wedlock births were more common and widely accepted that they are today.  Stepfamilies were much more numerous in the past… Even divorce rates have been higher in some regions and periods than they are in Europe and North America today…

On the other hand, some things that people believe to be traditional were actually relatively recent innovations.  That is the case for the ‘tradition’ that marriage has to be licensed by the state or sanctified by the church… Even the Catholic Church long held that if a man and woman said they had privately agreed to marry, whether they said those words in the kitchen or out by the haystack, they were in fact married.  For more than a thousand years the church just took their word for it.[cxviii]”

Having a single breadwinner, high marriage rates, and marrying young are also relatively recent:

“Until [the 1950’s], relying on a single breadwinner had been rare.  For thousands of years, most women and children had shared the tasks of breadwinning with men… for the first time, a majority of marriages in Western Europe and North America consisted of a full-time homemaker supported by a male earner.  Also new in the 1950s was the cultural consensus that everyone should marry and that people should wed at a young age.  For hundreds of years, European rates of marriage had been much lower, and the age of marriage much higher… the baby boom of the 1950s was likewise a departure from the past, because birthrates in Western Europe and North America had fallen steadily during the previous hundred years.”

Love (romantic, erotic, and companionate) as a fundamental reason for marriage is a radical new idea:

“[M]arriage was not primarily about the needs and desires of a man and woman and the children they produced.  Marriage had as much to do with getting good in-laws and increasing one’s family labor force as it did with finding a lifetime companion and raising a beloved child.[cxix]”   

I would also point out that a traditional construction of marriage, if looking at the balance of history, supports a much more significant “property” or “ownership” element (namely, of the husband owning the wife as property) than modern day defenders of traditional marriage would prefer to acknowledge:

“Through much of its history, marriage was primarily about family alliances, the consolidation and preservation of wealth and power, and/or the practical division of labor for family survival. If love entered into it that was a bonus.[cxx]”

I would additionally note that a robust enforcement of consent of both parties is also a recent addition to the institution, one that I presume most traditionalists would not oppose.  Coontz:

“[Marriage] was too vital an economic and political institution to be entered into solely on the basis of something as irrational as love… Because marriage was too important a contract to be left up to the two individuals involved, kin, neighbors, and other outsiders, such as judges, priests, or government officials, were usually involved in negotiating a match… not until the late eighteenth century, and then only in Western Europe and North America, did the notion of free choice and marriage for love triumph as a cultural ideal.[cxxi]”

Would traditional marriage defenders advocate a return to a time when women generally needed to marry in order to gain economic security and legal status?  How about when coverture was still binding?  How about when it was much harder to live the single life?  From Marriage, A History:

“Women’s legal and economic dependence on men and men’s domestic dependence on women was the fourth factor that had long driven people to get and stay married.  But during the 1970s and 1980s women won legal autonomy and made huge strides toward economic self-sufficiency.  At the same time, the proliferation of laborsaving consumer goods such as permanent-press fabrics, ready-made foods, and automatic dishwashers undercut men’s dependence on women’s housekeeping[cxxii].”

In a recent discussion on this subject I heard one wry concluding remark: “Marriage has more to fear from dishwasher salesmen than same-sex couples.”

No-fault divorce represents another significant change.  Reliable birth control and contraception have impacted marriage as well.  “Only in the last hundred years have women had the independence to make their marital choices without having to bow to economic need and social pressure.[cxxiii]”  The fall of the acceptability of wife beating is another significant change, as is the fall of the marital rape exception (though both have yet to fall fully).  The prevalence of the legitimate/illegitimate status of children has declined.  Due to the rise of feminism and other movements, cultural norms about male protection of female purity have changed drastically, as has adherence to Victorian morals.  Cohabitation, solitary living, female workforce participation, and later age of first marriage all either cause or indicate changes.  Employment laws, health laws, and business practices extending benefits to unmarried partners all alter the landscape. Last,

“The reproductive revolution has shaken up all the relationships once taken for granted between sex, marriage, conception, childbirth, and parenting.  People who could not become parents before can now do so in such bewildering combinations that a child can potentially have five different parents: a sperm donor, an egg donor, a birth mother, and the social father and mother who raise the child.[cxxiv]”

This cursory review shows that marriage in the past is far from homogenous.  To those who decry the breakdown of the family and seek to brake or reverse its deterioration, I would inquire again: exactly which traditional family do you want to preserve?

Now, I return to the three possible reasons why we should be cautious about an impulsive response to SSM based on the fear of God’s punishment or disastrous social consequence.

1) Homosexual orientation is largely if not wholly biological in origin.  It is likely that God is aware of this fact.  Though there is biblical evidence of the obligation to stone homosexuals, hopefully most of us can agree that at least today it is morally wrong to kill homosexuals even if it seems to some that the Bible mandates it. 

2) It is not clear that homosexual orientation, homosexual conduct, or same-sex couples were the reasons for God’s destruction of Sodom and Gomorrah.  (see “Biblical condemnation…” discussion in chapter 5)  As to Rome, what justification is there for attributing its downfall but not its rise to homosexuality, as such was present during its growth as well as decline?  Certainly the proximate, substantive cause of its fall was not homosexual conduct.  Civilizations rise and fall normally (haven’t the vast majority of them fallen or been assimilated?)- so what evidence is there that God destroyed Rome because it tolerated homosexuality?

3) If the concern is homosexual conduct, such may actually be lessened in that promiscuous behavior among gay men may on average decrease as more gay men choose SSM.  If the concern is that homosexual unions are less reproductive, it suffices to point out that SSM does not outlaw OSM, and no doubt heterosexual unions (which are much more common) will continue to reproduce independent of the presence or absence of SSM.  If the concern is natural disasters, such have struck many countries that have not legalized SSM and have not struck at least most countries that have.  If the concern is that opposite-gender families will not form as frequently because potential members of those unions are instead in same-sex relationships, I would point to the incredible difficulties and high divorce rates endemic to mixed-orientation marriages and ask whether MOM’s contribute more, on average, to broken families, shattered women, and disappointed men (to say nothing of the incredible suffering of children in such conflicted families), than they do to strong families and men and women and their children living lives of integrity and happiness.  Also, allowing women to own property was viewed by many religious and civil leaders as a blow to the divine institution of the family- yet in retrospect most of us support that move whether we perceive that it brought calamities or not.  In addition, same-sex couples exist mostly outside of legal marital recognition and will continue to do so.  If their presence/cohabitation is likely to incur God’s wrath, then we must break them up or punish/eliminate the participants, rather than merely legally bar SSM- actions few are willing to take under a modern morality.  Though we eschew tolerance of sin and believe that the Book of Mormon promises of prosperity and freedom from bondage are contingent on whether the inhabitants serve God and keep His commandments, this ethic does not always translate clearly into legislative recommendations.  Though baptism and confirmation in Christ’s true church fulfills God’s commandments, we would not approve a tax subsidy on that activity.  Though we oppose baptizing infants and drinking coffee, we would not criminalize those activities[cxxv].  Indeed, it would be contrary to God’s commandments to overly burden freedom.  Thus, even if God would have His people oppose homosexual behavior, He might nonetheless will that His people promote civil same-sex marriage based on the principles of agency and/or equality. 

Same-sex does not appear to threaten opposite-sex marriage: “none of the data convincingly link the recognition of same-sex partners to either fewer marriages or a declining belief in the current relevance of marriage.[cxxvi]” Plus:

“[E]ven if it is true that gay marriage constitutes a more radical definitional change than earlier innovations, in an important respect it stands out as one of the narrowest of reforms: all the earlier changes directly affected many or all married couples, whereas same-sex marriage would directly pertain to only a small minority.  It isn’t certain that allowing same-sex couples to marry would have any noticeable effect on heterosexual marriage at all.

True, you never know what might happen when you tinker with tradition.  A catastrophe cannot be ruled out.  It is worth bearing in mind, though, that predictions of disaster if open homosexuals are integrated into traditionally straight institutions have a perfect track record: they are always wrong.  When openly gay couples began making homes together in suburban neighborhoods, the result was not Sodom on every street corner; when they began turning up in corporate jobs, stud collars did not replace neckties.  I vividly remember, when I lived in London in 1995, the forecasts of morale and unit cohesion crumbling if open homosexuals were allowed to serve in the British armed forces; but when integration came (under court order), the whole thing turned out to be a nonevent.  Again and again, the homosexual threat turns out to be imaginary; straights have far less to fear from gay inclusion than gays do from exclusion.  Granted, for many people marriage is defined in terms of sexual orientation, which (for example) employment never was.  Still, there is reason to doubt that the latest predictions of the end of civilization will prove more accurate than their predecessors.[cxxvii]”

I end with a quote from LDS scholar Valerie Hudson:

“This uniquely LDS view calls for a wholesale reevaluation of the logic and the arguments of the anti-same-sex marriage movement, to the intent of improving its chances at this time of twilight.  If the movement is not put on firmer footing, with a truly adequate answer provided…, it will be but a memory in less than a decade.[cxxviii]”

Conclusions

Most of the common anti-SSM arguments I’ve heard to date are either flawed or deeply flawed. 

---

[i] William C. Duncan, “Compassionately Standing Up for Traditional Marriage… and Why We Should Be Concerned about Same-Sex Marriage,” in Understanding Same-Sex Attraction: LDS Edition, Editors Dahle, Dant, Byrd, Duncan, Cox, Livingstone, and Wells, Foundation for Attraction Research, 2009, pg. 376.

[ii]  http://www.cnn.com/2010/HEALTH/06/07/lesbian.children.adjustment/index.html, http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2010.00714.x/full

[iii] Timothy J. Biblarz, Evren Savci.  "Lesbian, Gay, Bisexual, and Transgender Families," article first published online: 18 June 2010, Journal of Marriage and Family, Volume 72, Issue 3, pages 480–497, http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2010.00714.x/full

[iv]Joshua, “Why I supported prop 8,” Mormons For Marriage, http://mormonsformarriage.com/?p=432#comments

[v] http://en.wikipedia.org/wiki/Plessy_v._Ferguson

[vi] http://en.wikipedia.org/wiki/Brown_v._Board_of_Education

[vii]Carrie A. Miles, http://www.empowerinternational.org/empower_bu/Carries_web/Carrie%20Miles%27%20MSSA%20submission.pdf

[viii] See Stephanie Coontz, Marriage, A History’s discussion of a single breadwinner as a modern trend (about page 4). 

[ix] See Moses 6: 9 In the image of his own body, male and female, created he them, and blessed them, and called their name Adam, in the day when they were created and became living souls in the land upon the footstool of God.

[x] See Mark 10: 8 And they twain shall be one flesh: so then they are no more twain, but one flesh.

[xi] See 2 Nephi 26: 33 For none of these iniquities come of the Lord; for he doeth that which is good among the children of men; and he doeth nothing save it be plain unto the children of men; and he inviteth them ball to come unto him and partake of his goodness; and he denieth none that come unto him, black and white, bond and free, male and female; and he remembereth the heathen; and all are alike unto God, both Jew and Gentile.

[xii] Todd L. Goodsella & Jaren T. Meldruma, "Nurturing fathers: a qualitative examination of child-father attachment," Early Child Development and Care, Volume 180, Issue 1 & 2 January 2010 , pages 249 - 262, http://www.informaworld.com/smpp/content~content=a918804971~db=all~jumptype=rss.  See also “The Male Brain,” http://bradcarmack.blogspot.com/2010/07/male-brain.html

[xiii] Brad Carmack, “Sunstone Symposium: Reflecting on Maturing Faith,” Thursday, August 12, 2010, http://bradcarmack.blogspot.com/2010/08/sunstone-symposium-reflecting-on.html

[xiv] Laura, “Why I supported prop 8,” Mormons For Marriage, http://mormonsformarriage.com/?p=432#comments

[xv] Rachel H. Farr, Stephen L. Forssell, Charlotte J. Patterson, "Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?" Applied Developmental Science, 14(3), 164–178, 2010.

[xvi] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 33.

[xvii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 74.

[xviii] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 32.

[xix] Dale Carpenter, “The Unconservative Consequences of Conservative Opposition to Gay Marriage,” in Wardle’s What’s the Harm, pg. 322.

[xx] Evan Wolfson, "The proposer's closing remarks," Jan 7th 2011, http://www.economist.com/debate/days/view/635

[xxi] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 34.

[xxii] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 32.

[xxiii] Adam Kolasinksi, "The Secular Case Against Gay Marriage, The Tech, http://tech.mit.edu/V124/N5/kolasinski.5c.html

[xxiv] For an example of this irony, see A. Dean Byrd, “Conjugal Marriage Fosters Healthy Human and Societal Development,” in Lynn D. Wardle’s What’s the Harm, page 18, first and second paragraph. 

[xxv] Kendel Christensen, "Musings on Marriage and Children," February 2010, The Official Website of Kendel Christensen, http://www.kendelc.com/1/post/2010/02/musings-on-marriage-and-children.html

[xxvi] Kendel Christensen, "Musings on Marriage and Children," The Official Website of Kendel Christensen, February 2010, http://www.kendelc.com/1/post/2010/02/musings-on-marriage-and-children.html

[xxvii] Adam Kolasinksi, "The Secular Case Against Gay Marriage, The Tech, http://tech.mit.edu/V124/N5/kolasinski.5c.html

[xxviii] Perry v. Schwarzenegger, pg. 113, available at http://www.equalrightsfoundation.org/wp-content/uploads/2010/08/35374462-Prop-8-Ruling-FINAL.pdf

[xxix] Kendel Christensen, "Musings on Marriage and Children," The Official Website of Kendel Christensen, February 2010, http://www.kendelc.com/1/post/2010/02/musings-on-marriage-and-children.html

[xxx] Adam Kolasinksi, "The Secular Case Against Gay Marriage, The Tech, http://tech.mit.edu/V124/N5/kolasinski.5c.html

[xxxi] Perry v. Schwarzenegger, pg. 111, available at http://www.equalrightsfoundation.org/wp-content/uploads/2010/08/35374462-Prop-8-Ruling-FINAL.pdf

[xxxii] Kendel Christensen, "Musings on Marriage and Children," The Official Website of Kendel Christensen, February 2010, http://www.kendelc.com/1/post/2010/02/musings-on-marriage-and-children.html

[xxxiii] Presuming that biological parents are superior on average to step and single parent households.  I do not know how biological parent households compare to same-sex households on average, including when one of the parents is biologically a parent of the child(ren).  See also Annette R. Appell, "The Endurance of Biological Connection: Heteronormativity, Same-Sex Parenting and the Lessons of Adoption," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008) pg. 289. 

[xxxiv] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 69.

[xxxv] Gordon A. Babst, Emily R. Gill, & Jason Pierceson, editors, Moral Argument, Religion, and Same-sex Marriage, 2009, 219.

[xxxvi] Gordon A. Babst, Emily R. Gill, & Jason Pierceson, editors, Moral Argument, Religion, and Same-sex Marriage, 2009, 226.

[xxxvii] http://www.irs.gov/charities/charitable/article/0,,id=163395,00.html

[xxxviii] Kaimi Wenger, A Legal Analysis of Proposition 8, transcribed from the video December 2010, http://ldshomosexuality.com/?cat=12

[xxxix] Gordon A. Babst, Emily R. Gill, & Jason Pierceson, editors, Moral Argument, Religion, and Same-sex Marriage, 2009, 225.

[xl] See e.g. 8: The Mormon Proposition, a film.

[xli] Kerrigan v. Commissioner of Public Health, 289 Conn. 135; 957 A.2d 407 (2008).

[xlii] Ben Hertzberg, "Marriage, Mormonism, and Homosexuality: A Response to Richard Sherlock," SquareTwo, March 2009,   http://squaretwo.org/Sq2ArticleSherlockMarriage.html

[xliii] http://en.wikipedia.org/wiki/Establishment_clause

[xliv] Kerrigan v. Commissioner of Public Health, 289 Conn. 135; 957 A.2d 407 (2008).

[xlv] Clay Essig, Believing the Words of Jesus Christ – a Gay LDS Perspective pg. 14. 

[xlvi] Mark L. Hatzenbuehler, Katie A. McLaughlin, Katherine M. Keyes, and Deborah S. Hasin, "The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study," March 2010, Vol 100, No. 3 | American Journal of Public Health 452-459, AJPH First Look, published online ahead of print Jan 14, 2010, http://ajph.aphapublications.org/cgi/content/abstract/100/3/452

[xlvii] See Ilan Meyer, “Minority stress and mental health in gay men,” Journal of Health and Social Behavior 36 (March 1995): 38-56; Vickie M. Mays and Susan D. Cochran, “Mental health correlates of perceived discrimination among lesbian, gay, and bisexual adults in the United States,” American Journal of Public Health 91 (2001): 1869-1876.

[xlviii] M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 121-124.  See also footnotes 16-18 on pages 246 and 247.

[xlix] http://www.economist.com/debate/days/view/638, The Economist SSM debate.

[l] Ben Hertzberg, "Marriage, Mormonism, and Homosexuality: A Response to Richard Sherlock," SquareTwo, March 2009,   http://squaretwo.org/Sq2ArticleSherlockMarriage.html

[li] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 22.

[lii] For some related discussion, see “Inbred obscurity: improving incest laws in the shadow of the ‘sexual family,’” Harvard Law Review, Note, Volume 110, Number 8, June 2006. 

[liii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 125.

[liv] Adam Kolasinksi, "The Secular Case Against Gay Marriage, The Tech, http://tech.mit.edu/V124/N5/kolasinski.5c.html

[lv] Kathleen Mullan Harris, “Family Structure, Poverty And Family Well-Being: An Overview OF Panel 2,” 10 Employee Rts & Employment Pol’y J. 45, 54 (2006).

[lvi] Nancy Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law, 2009, pg. 175.

[lvii] Martha Bailey, “Dwelling Among Us,” in Wardle’s What’s the Harm, pg. 158.

[lviii] Adam Kolasinksi, "The Secular Case Against Gay Marriage, The Tech, http://tech.mit.edu/V124/N5/kolasinski.5c.html

[lix] http://www.un.org/en/documents/udhr/index.shtml#a16

[lx] Law school friend of the author, written communication, Fall 2010.

[lxi] Jonathon Rauch (see his discussion in Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004) is a staunch advocate of this approach; see also Badgett’s discussion in chapter 9, “The Pace of Change: Are We Moving Too Fast?” When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 175-1993.

[lxii] Carlos A. Ball, The Backlash Thesis and Same-sex Marriage: Learning from Brown v. Board of Education and its Aftermath, 14 WM. & MARY BILL RTS. J. 1493 (2006).

[lxiii] V.H. Cassler, “'Some Things That Should Not Have Been Forgotten Were Lost': The Pro-Feminist, Pro-Democracy, Pro-Peace Case for State Privileging of Companionate Heterosexual Monogamous Marriage,”

SquareTwo, Vol. 2 No. 1 (Spring 2009), http://squaretwo.org/Sq2ArticleCasslerMarriage.html 

[lxiv] Valerie Hudson, "The Men Have Muffed It: How Men's Misunderstanding of the Telos of Marriage Imperils Its Future,” SquareTwo, April 2009 http://squaretwo.org/Sq2AddlCommentarySherlock.html.  See also, Lynn Wardle, "A Response to the ―Conservative Case‖ for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008), pg. 474.

[lxv] V.H. Cassler, “'Some Things That Should Not Have Been Forgotten Were Lost': The Pro-Feminist, Pro-Democracy, Pro-Peace Case for State Privileging of Companionate Heterosexual Monogamous Marriage,”

SquareTwo, Vol. 2 No. 1 (Spring 2009), http://squaretwo.org/Sq2ArticleCasslerMarriage.html 

[lxvi] Mark Strasser, “The Alleged Harms of Recognizing Same-sex Marriage,” in Wardle’s What’s the Harm, pg. 36.

[lxvii] Joshua, quoted in comment 32, http://mormonsformarriage.com/?p=432#comments

[lxviii] Perry v. Schwarzenegger, pg. 119, available at http://www.equalrightsfoundation.org/wp-content/uploads/2010/08/35374462-Prop-8-Ruling-FINAL.pdf

[lxix] Perry v. Schwarzenegger, pg. 111, available at http://www.equalrightsfoundation.org/wp-content/uploads/2010/08/35374462-Prop-8-Ruling-FINAL.pdf

[lxx] Kerrigan v. Commissioner of Public Health, 289 Conn. 135; 957 A.2d 407 (2008).

[lxxi] http://en.wikipedia.org/wiki/Appeal_to_tradition

[lxxii] See D. Michael Quinn, “Same-sex unions worldwide: a history ignored by opponents of gay marriage,”

Preliminary Survey (2004), Yale University, 2002-03, http://ldsreconciliation.org/Quinn.htm

[lxxiii] See e.g. Webster’s 1828 dictionary, which under “vote” describes electing a man, rather than a person, to office.  http://1828.mshaffer.com/d/word/vote

[lxxiv] Tom Freeman and Katherine Doyle, http://www.watermarkonline.com/index.php/News/national-world-lgbt-news/4807-Straight-British-couple-seeks-civil-union.html

[lxxv] Stephanie Coontz, Marriage, A History, 2005, pg. 275.

[lxxvi] See Lynn Wardle’s comparison of legalizing SSM to permitting livestock owners to overgraze their herd on the public common: "A Response to the ―Conservative Case‖ for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008), pg. 470-472.

[lxxvii] M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 14.

[lxxviii] Clay Essig, Believing the Words of Jesus Christ – a Gay LDS Perspective pg. 9, http://www.gaysandthegospel.org/articles/Believing_the_Words_of_Jesus_Christ.pdf. 

[lxxix] Kerrigan v. Commissioner of Public Health, 289 Conn. 135; 957 A.2d 407 (2008).

[lxxx] Lynn Wardle, "A Response to the ―Conservative Case‖ for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008), pg. 473.

[lxxxi] See LouAnn Brizendine’s The Male Brain, circa 2009.

[lxxxii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 142.

[lxxxiii] Eugene Volokh, UCLA, circa 2003, qtd. in Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 143.

[lxxxiv] Qtd. in Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 143.

[lxxxv] http://www.asexuality.org/en/index.php?showtopic=873. Also see the newer poll at http://www.asexuality.org/en/index.php?showtopic=34365

[lxxxvi] Personal friend, email to the author, December 2010.

[lxxxvii] “Is Promiscuity Innate?” Washington Post, 2003: Men on average desired 1.87 partners over the next month compared to women’s .78, and over the next ten years men wanted 5.95, while women wanted 2.17. 

[lxxxviii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 155-156.

[lxxxix] Dale Carpenter, “The Unconservative Consequences of Conservative Opposition to Gay Marriage,” in Wardle’s What’s the Harm, pg. 323.

[xc] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 6.

[xci] M.V. Badgett, Gary J. Gates, & Deborah Ho, “Marriage, Registration and Dissolution by Same-Sex Couples in the U.S., July 2008, http://www.law.ucla.edu/WilliamsInstitute/publications/Couples%20Marr%20Regis%20Diss.pdf

[xcii] See M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009.

[xciii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 48.

[xciv] "The case for gay marriage: It rests on equality, liberty and even society," The Economist, Feb 26th 2004, http://www.economist.com/node/2459758

[xcv] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 32.

[xcvi] M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 4.

[xcvii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 43.

[xcviii] See also "Let them wed: There is no compelling reason to exclude homosexual couples from marriage, and several compelling reasons to include them," Jan 4th 1996,  http://www.economist.com/node/2515389

[xcix] Nancy Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law, 2009, pg. 126.

[c] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 92.

[ci] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 94, 97-98.

[cii] M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 12.

[ciii] http://www.ellisonresearch.com/ERPS%20II/release_13_family.htm

[civ] Andrew Koppelman, The Decline and Fall of the Case Against Same-sex Marriage, 2 U. St. Thomas L.J. 5, (2004).

[cv] Annette R. Appell, "The Endurance of Biological Connection: Heteronormativity, Same-Sex Parenting and the Lessons of Adoption," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008) pg. 310. 

[cvi] Stephanie Coontz, Marriage, A History, 2005, pg. 5.

[cvii] See Helen Fisher, Why We Love: The Nature and Chemistry of Romantic Love.

[cviii] Jenkins Lloyd Jones, quoted in Gordon Hinckley’s Standing for Something: 10 Neglected Virtues that Will Heal Our Hearts and Homes, pg. 151-152.

[cix] See e.g. Nadine Hansen’s “Gay Marriage, California's Proposition 8 and the LDS Church (Part 2)” at http://www.youtube.com/watch?v=HcL9R94MGMk&feature=player_embedded; D. Michael Quinn’s The Mormon Hierarchy. 

[cx] William C. Duncan, “Compassionately Standing Up for Traditional Marriage… and Why We Should Be Concerned about Same-Sex Marriage,” in Understanding Same-Sex Attraction: LDS Edition, Editors Dahle, Dant, Byrd, Duncan, Cox, Livingstone, and Wells, Foundation for Attraction Research, 2009, pg. 381.

[cxi] Lynn Wardle, "A Response to the ―Conservative Case‖ for Same-Sex Marriage: Same-Sex Marriage and the Tragedy of the Commons," BYU Journal of Public Law, Volume 22, Number 2 (Winter 2008), pg. 473.

[cxii] Stuart Matis, letter to his cousin Clay in 2000, quoted on page 54 of Carol Lynn Pearson’s No More Goodbyes: Circling the Wagons Around Our Gay Loved Ones.

[cxiii] Valerie Hudson, "The Men Have Muffed It: How Men's Misunderstanding of the Telos of Marriage Imperils Its Future,” SquareTwo, April 2009 http://squaretwo.org/Sq2AddlCommentarySherlock.html.

[cxiv] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 167-168.

[cxv] Stephanie Coontz, Marriage, A History, 2005, pg. 309.

[cxvi] Amy Kaler, “’Many Divorces and Many Spinsters’: marriage as an Invented tradition in Southern Malawi, 1946-1999,” Journal of Family History 26 (2001), pp. 547, 548.

[cxvii] Stephanie Coontz, Marriage, A History, 2005, pg. 2.

[cxviii] Stephanie Coontz, Marriage, A History, 2005, pg. 2.

[cxix] Stephanie Coontz, Marriage, A History, 2005, pg. 5.

[cxx] Wayne Schow, “ A Case for Same Sex Marriage: Reply to Randolph Muhlstein,”  Dialogue: A Journal of Mormon Thought 40:3 (Fall 2007): pg. 60, footnote three: “For a useful discussion of the historical evolution of marriage as a social institution, see Stephanie Coontz, Marriage, A History: From Obedience to

Intimacy, or How Love Conquered Marriage (New York: Viking, 2005).”

[cxxi] Stephanie Coontz, Marriage, A History, 2005, pg. 7.

[cxxii] Stephanie Coontz, Marriage, A History, 2005, pg. 308.

[cxxiii] Stephanie Coontz, Marriage, A History, 2005, pg. 49.

[cxxiv] Stephanie Coontz, Marriage, A History, 2005, pg. 275.

[cxxv] No doubt we could have an interesting discussion about the criminality of adultery, which was a civil offense in Alma 30: 7 Now there was no law against a man’s belief; for it was strictly contrary to the commands of God that there should be a law which should bring men on to unequal grounds…10 But if he murdered he was punished unto death; and if he robbed he was also punished; and if he stole he was also punished; and if he committed adultery he was also punished.

[cxxvi] M. V. Lee Badgett, When Gay People Get Married: What Happens, When Societies Legalize Same-sex Marriage, 2009, pg. 85.

[cxxvii] Jonathan Rauch, Gay Marriage: Why it is Good for Gays, Good for Straights, and Good for America, 2004, pg. 168-169.

[cxxviii] Valerie Hudson, "The Men Have Muffed It: How Men's Misunderstanding of the Telos of Marriage Imperils Its Future," April 2009, “Additional Commentary on the Sherlock/Hertzberg/Hancock Debate,” SquareTwo, Vol. 1 No. 1 (Fall 2008), http://squaretwo.org/Sq2AddlCommentarySherlock.html