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I published this article over at Hubpages, and thought you might like to read it. I’ve included the text for archive posterity.
Five Myths About Same-Sex Marriage
Over the past several weeks I have seen a huge number of articles spring up in protest of last month’s CA Supreme Court ruling in favor of same-sex marriages. I want to address some of the arguments and claims that I’ve seen in those articles.
Myth #1: Four liberal activist judges overruled the will of the people.
What You Should Know: The California Supreme Court, a conservative court, struggled with the issue, looked to the CA Constitution, and concluded that equality means equality for ALL – and that includes those who identify as lesbian, gay, bisexual or transgender.
Many have argued that legislatures, not judges, should be responsible for making marriage law. The CA legislature has twice passed the Religious Freedom and Marriage Equality Act, which equalized civil marriage rights among couples but explicitly stated that no religious institution shall be compelled to preside over a same-sex marriage. The bill was passed by two different assemblies of the legislature, since one passage was prior to a major election and once occurred after. The bill was twice vetoed by the Governor specifically because he believed it WAS an issue for the courts, not for the legislature.
Of the seven CA Supreme Court Justices, six were appointed by Republicans. The CA Supreme Court is traditionally known for being fairly conservative. If you think “CA” and think “liberal judges,” you might be mistaking the CA Supreme Court for the United States Court of Appeals for the Circuit. They are two very different courts. Incidentally, one of the dissenters is personally in favor of allowing same-sex marriage. Judges can and do go against their own personally-held beliefs in favor of upholding the CA Constitution.
The Supreme Court decision did not create a “new right” – rather, it acknowledged prior decisions stating that every person has a right to choose his or her life partner, and determined that this right cannot be abridged based solely on sexual orientation, which the Court views as akin to race and religion as far as discrimination practices are concerned. The judges did not come to their decision easily; they struggled with it, and that struggle is documented in the extremely lengthy opinion released last month (most court decisions are NOT this long – the Massachusetts marriage decision was less than a third of this length). If you think all it took was a stroke of a pen, I challenge you to read the 172-page opinion. I did.
Myth #2: The people of CA already spoke on the issue of gay marriage by passing Proposition 22
What You Should Know: Only 29% of registered California voters (21.5% of eligible voters) voted in favor of Prop 22. Is that an overwhelming majority?
Supreme Court Cases You Should Read
Perez v. Sharp (CA, 1948)
Loving v. Virginia (US, 1967)
Baker v. State (VT, 1999)
Lawrence v. Texas (US, 2003)
Goodridge vs. Department of Public Health (MA, 2003) [PDF]
Lewis v. Harris (NJ, 2006)
In Re Marriage Cases (CA, 2008) (PDF only, due to length)
While Proposition 22 was a statewide ballot initiative, it was not an accurate reflection of all of CA, for two major reasons:
First, contrary to popular belief, Prop 22 was not approved by an overwhelming majority of CA voters. Prop 22 was passed by an overwhelming majority of the voters who came out in March of 2000 to pick between John McCain and George Bush, since there was no true competition in the Democratic race, with Vice President Al Gore being the assumed winner. True, more Democrats than Republicans voted in the election, but if you count by who they voted for instead of their party identification, you get 2,654,114 voting Democratic and 3,702,487 voting Republican. In a consistently blue state, these statistics are not representative of the true population (about 30 million people). Overall, the election had a pretty low turnout rate. That primary election had around 7 million voters out of about 15 million registered voters. This past February primary (2008) had about the same number of registered voters, but more than 9 million actually turned out – and THAT was with closed primaries, which we didn’t have before, and no real contest in the Republican race.
In a state of more than 30 million people, only 4,618,673 voted in favor of Prop 22, and 2,909,370 voted against it. With only about a third of eligible voters, and barely half of registered voters, having voted on Prop 22 (that’s overall, not just in favor), it’s hard to use the word “overwhelming” to describe the outcome. Basically, 29% of registered voters (21.5% of eligible voters) voted in favor of Prop 22 – and that was eight years ago. The world has changed since then. People have changed since then. I know a LOT of people who voted for Prop 22 and are, in retrospect, utterly ashamed of themselves for it.
Second, Proposition 22, while appearing simple, was actually quite misleading. It came as a response to DOMA, which allowed states to refuse to recognize out-of-state same-sex marriages, and the entire campaign was centered around the notion that CA should not be forced to recognize other states’ marriages. The argument was framed in such a way that many people who had no particular opinion on same-sex marriage voted for Prop 22 because they believed CA should be allowed to make the decision for itself and not be forced into it by another state. While this same Supreme Court ruling ultimately determined that Prop 22 did apply to all marriages and not just those performed out of state, the “yes” campaign intimated otherwise, and countless voters were duped in the process.
Even if Proposition 22 HAD passed with the approval of most Californians (which it didn’t), the CA Supreme Court had the responsibility to ensure that it complied with the CA Constitution (which it didn’t). The Court here didn’t ignore Proposition 22; it attacked it head on and found it to violate the spirit of the California Constitution. Courts have declared other initiatives unconstitutional as well, and in the 1960’s the US Supreme Court even invalidated a voter-approved CA constitutional amendment which sought to overturn a recently-passed legislative act banning housing discrimination based on ethnicity, religion, sex, marital status, physical handicap, or familial status. Propositions don’t just glide into law just because the voters approved them. They still have to meet the rigorous standards of our great state and federal constitutions, and Proposition 22 violated what both the CA and US Supreme Courts have called a basic human right, the right to marry and create a family with your chosen spouse.
Myth #3: Marriage is a sacrament and has always been between one man and one woman.
What You Should Know: Read Marriage, a History: How Love Conquered Marriage, by Stephanie Coontz. You’ll learn things you didn’t even know you didn’t know.
I could go on for pages about the ways in which marriage has changed over the years. One man can no longer have eight wives. Women are no longer subsumed by their husband’s identity and viewed as property. Couples are no longer barred from marriage based on their racial makeup. Most importantly, however, couples do not have to have their marriage blessed or sanctified by a religious institution, and they do not have to be married by a member of the clergy. This is the key to the constitutionality argument for same-sex marriage. The court cannot, and must not, and WILL not force religious institutions to officiate marriage for same-gender couples. Religions have the right to dictate their requirements for marriage, and the government may not interfere.
However, the state does not “recognize” religious institutions’ marriages; it creates the official status itself, and it officiates marriages outside the religious sphere. We call this civil marriage. It is an entirely different institution from religious marriage; it just happens that the state grants clergymen the status to officiate civil marriages at the same time as religious ones, for convenience’s purpose, so that a couple can be married in a single ceremony. A couple that goes to church and exchanges vows before witnesses is NOT married unless they fill out the necessary paperwork for a civil marriage. Likewise, a couple can obtain a civil marriage license and be married by a judge, a marriage deputy, or other civil servants acting as agents for the state, and never even interact with a religious institution.
Religious institutions can discriminate against certain couples; for example, most rabbis will not officiate at a marriage between a Jew and a non-Jew, because Jewish law only recognizes as valid a marriage between two Jews. However, the STATE cannot discriminate in the same way and purport to be upholding the Constitution, state OR federal. If the STATE offers civil marriage, it must allow it to all adult couples, not just those who fit religious descriptions of propriety. After all, can you imagine the chaos if the state refused to issue a marriage license to a couple because one of them was Jewish and one was not? It is not the state’s business to uphold or enforce religious restrictions on marriage. (In fact, considering the VAST number of religious institutions and clergy who submitted amicus briefs to the Supreme Court in support of same-gender marriage, I would argue that the state would have been in violation of the Establishment Clause had it NOT allowed the marriages to take place, since barring same-gender couples would have been equivalent to expressing a preference for some religions over others, at the expense of individual civil rights.)
If you want Biblical proof that it hasn’t always been about men and women, read I Samuel, not just the lines I have provided below, but the entire story – and read a translation that is as close to the original Hebrew as possible, as modern versions have diluted the story, often explicitly changing words entirely to tone down the relationship. Think about what it means to make a “covenant.” In nearly every other case in the Bible, the word “covenant” refers to the relationship between God and people, or to people promising to serve God. A covenant is an eternal promise – why else would some states institute “covenant marriages,” which are not as easy to dissolve?
1 Samuel 18
1. And it came to pass, when he had made an end of speaking unto Saul, that the soul of Jonathan was knit with the soul of David, and Jonathan loved him as his own soul.
3. Then Jonathan and David made a covenant, because he loved him as his own soul.
1 Samuel 23
18. And they two made a covenant before the LORD: and David abode in the wood, and Jonathan went to his house.
Myth #4: Allowing same-sex marriage will lead to legalization of incest, pedophilia, and polygamy! Next thing you know, people will be marrying their dogs!
What You Need To Know: It’s far too late for that.
Let’s get this one over with: A dog is not and will never be a consenting adult. Nor will a goat. In addition to being morally and utterly repugnant, sex with animals is always rape, because an animal cannot consent. Likewise, a paw print does not suffice as a signature on a marriage license – and no matter how sure you are that your dog is trying to tell you something, absent a licensed dog-to-human translator, “Arf arf” cannot be properly construed to mean “I do.” Get your mind out of the gutter and stick to the issue at hand.
Incest is already legal in the 26 states where individuals can marry their first cousins. Cousins are the next degree of siblings; they are the children of your parents’ siblings. The great irony of today’s marriage laws is that I can marry my black cousin, the son of my aunt, but I can’t marry my wife. Or rather… I couldn’t. Now I can.
Pedophilia is already legal in the 1/3 of states that allow children under age 16 to marry, with some allowing marriage as early as age 13 with permission from the court. I’d be willing to bet that in most cases the men marrying adolescent girls are not also in their teens. If you want to protect children, you can start by lobbying states to prohibit children from getting married before they are old enough to see R-rated movies.
Polygamy is a separate issue because it doesn’t involve marital prohibition so much as it involves individuals trying to “double-dip” on the marital property and tax systems, among other things. A marriage is a union of two individuals into one economic unit. You can’t “become one” with one person if you’re already “one” with another person. There’s an argument to be made for allowing “threesomes” of people to marry, but I highly doubt anybody would take the economic risk, considering that one individual could wind up paying alimony to everybody else in the group if s/he decided to leave. I think the specter of alimony would be enough to prevent anybody from seriously raising this concern – not to mention that it’s an extremely rare arrangement in the first place.
Myth #5: Gay couples don’t need marriage in order to get their legal matters in order. Calling it “marriage” does nothing but devalue the sanctity of marriage.
What You Need To Know: Allowing committed couples to marry encourages and promotes monogamy and family responsibility, two crucial family values. As a result, federal and state governments have instituted a system of rights and responsibilities that have become necessary and irreplaceable for two people sharing their lives together. These rights are not replicable in private legal arrangements since most of them have to do with third-party or government recognition.
First, I have to point out that same-gender couples can’t possibly do more harm to the institution of marriage than that already inflicted by the heterosexuals who have held a monopoly on it for so long. (Hello Britney; hello “Who Wants to Marry a Millionaire?”) With more than half of all marriages ending in divorce, marriage needs all the good role models it can get. Many of the couples that are getting married in California this week have been together longer than most heterosexual marriages ever last. In fact, some social scientists believe that studying the way same-sex couples communicate and deal with conflict may actually help decrease the divorce rate among heterosexual couples by helping them overcome conflict.
Whether you like it or not, same-sex couples will have children. Children fare better in life when their parents are married. Why would you deny these children the right to be raised by married parents? Studies show that there is no substantial difference between children raised by gay parents and those raised by straight parents. They do, however, show that two parents are better than one. Marriage encourages two-parent childrearing, and provides economic safety-nets for situations where one parent abandons the family. Without marriage, the protections are substantially reduced. Marriage also encourages personal responsibility and shifts economic support responsibilities from the government to the individual and the private sector; with gay marriage legalized, many people will no longer have a need for state-provided benefits because they will be eligible for benefits through their spouse.
Children tend to thrive when they have one parent at home and one parent working to support the family; in an ideal world, families could afford to live on the salary of only one working parent (this is becoming less common as the cost of living skyrockets). Federal marriage recognition encourages parents to stay home with their children; spouses are entitled to their deceased spouses’ Social Security benefits if their own are insufficient. Gay couples do not receive this benefit, effectively removing this incentive to keep one parent at home. Additionally, federal marriage recognition keeps families from being uprooted in case of the death of a spouse; the property passes from one spouse to the other without tax repercussions, which means that in the tragic event of one spouse’s death, the other spouse and their children will not be forced to sell their home to pay estate taxes. Gay partners are taxed on bequests as though they were granted by any acquaintance; a partner of 55 years could be forced to sell her home to pay the taxes on property inherited from the deceased partner. Finally, the federal tax system actually penalizes gay couples who choose to have one partner remain at home to care for the children; the wage-earning partner is taxed on her income as a single person even though her salary is supporting both partners and their children. Stay-at-home moms should relate to this – imagine if your husband had to pay taxes as a single person!
I could go on forever, but I think it’s time to wrap up this article. However, I am happy to answer any questions you might have. As for me, my wife and I got married this past Tuesday, on the one-year anniversary of our religious wedding. We were already married in the eyes of God – it was time for the state to catch up.
