The Gum Tree for 2008 May 19 (entry 0)

(13) Mon May 19 10:04:07 California Decision:

I received an email from Senator John Cornyn today affirming his stance on a constitutional amendment upholding marriage between a man and a woman as the only valid marriage in the U.S. Here's my response:

I support your position on same-sex marriage. Democratically crafted laws don’t seem to be robust enough, unfortunately, to defend against the judicial culture of usurping power from democratic institutions in order to force their view of justice on the people and all the other branches of government. Unfortunately the only recourse now is a constitutional amendment. I wish it weren’t necessary, but there it is.

I am all for states (like Hawaii and Vermont) democratically crafting laws allowing Same-Sex marriage. I don't think those laws are in the best interest of children, of course, but there is a pattern whereby people can form laws to govern themselves. This judicial activism, however, usurps the power of the people and is a tool by which tiny tyrants; who see themselves a benevolent, assume power which doesn't belong to them.

Perhaps some might accuse me of selective protestation; but I would also oppose a justice banning all abortion based on a supposed constitutional right to life. The framers of the constitution never said anything about abortion, and they definitely didn't say anything about even heterosexual marriage.

Comments:

Posted by John at Mon May 19 12:54:20

What a crazy thing. On the one hand, I don't think it's right for judges to overturn what the people voted for like that. On the other hand, I support equal rights for all human beings. On the other hand, I also really believe that if the people voted all over again today, the outcome would match the CA Supreme Court, so this is one way to realign to the people's will. On the other hand, is it the correct way to realign the people's will? How would a re-vote/appeal work anyway? I myself would have voted for the ban back then, but would not do so now.

I agree, Joe, that eventually this will end up at the national level. I hope all civility in the world does not fall apart when that day comes. There's barely enough holding us together this election year as it is.

I'm not sure I understand what you mean when you say "I don't think those laws are in the best interest of children." Can you elaborate?

Posted by Joe Walch at Mon May 19 13:35:28

I don't think those laws are in the best interest of children.

One of the driving forces of Atheism is the belief in certain worldviews that clash with prevailing scientific or social scientific consensus arguments. I won't try to argue from a scientific position here (since I don't really have the research collected, and since the research is ultimately irrlevant as far as I'm concerned); so to fully decloak my blatant religious bias: I think it's better for a child to be raised by a Man and a Woman who act in the role of Father and Mother.

For me, that's the central argument. Really, Gays have plenty of civil rights: I can have my mother or some homeless guy visit me in the hospital, be beneficiary on my insurance policy, etc. as long as I arrange some sort of limited power-of-attorney or other agreement with him. I'm not against streamlining the process either, but I don't think any goverment office should be asking if people have sex in order to grant certain benefits as they do in many European countries.

As far as I see it, the only place where it gets sticky is where the tax code discriminates in favor of married couples (retirement benefits contribution, social security payments to homemakers who haven't "contributed meaningfully to the economy" [sarcasm intended], but who still collect SSI payments based on their husbands, etc.). With the disintrigration of marriage as it stands with no-fault divorce and easy annullments, these "rights" are becoming more and more watered down.

I don't think we should make any mistake about it; the California decision was an attempt to force the idea that men having anal sex with other men (or whatever lesbian women do) is acceptable in society (which it is simply not by the vast majority of Americans, of which America, the vast majority are heterosexual). The rights that Gay people have today as a result of this decision are exactly the same as they were a month ago. That is one reason why this decision specifically isn't about civil rights. On the federal level there would be some nominal rights gained (as I've said before, as far as I understand the law), so that's a different situation; and the course has been set for a Homosexual Dred Scott and His partner to come before the Supreme Court in the not-too-distant future.

Bottom line:
#1) Children raised in homes with committed one-father/one-mother parental relationships are better off in probably every way imaginable, and society has a right to use that discrimination in crafting laws that deal with Children or that promote that type of child-rearing.
#2) non-married (man and woman, husband and wife) relationships should be treated exactly the same as any statutory relationship that I could reasonably/legally set up with my own father.

If we're going to evicerate any pro-marriage legal discriminatory benefit, let's at least stop making it all about sex. . . which, of course is impossible when dealing with bringing children into the world, e.g. incest; or raising children, e.g. see bottom line #1; hence the gathering storm.

Posted by Joe Walch at Mon May 19 13:38:18

I should have written:

One of the driving forces of Atheism's attack on religion is religion's rejection of certain worldviews that clash with prevailing scientific or social scientific consensus arguments.

Posted by John at Mon May 19 17:07:07

Thanks, Joe. I figured you were talking adoption, but I just wanted to make sure. I can see your argument with regards to that point. But do you think it possible to allow same-sex unions and still deny adoption to such unions? Would that take care of the "I don't think those laws are in the best interest of children" statment you made? Just curious. I'm not interested in picking a fight.

Posted by anonymous at Mon May 19 17:25:45

Single people can adopt. I can also see ways in which custody of children could be placed in the hands of a Mother and a Daughter (see Bottom line #2). Of course I think kids are always better off with a mother and father, but if single people and mother-daughter combinations can adopt, then I don't think a gay couple could/should be banned from adoption.

If, however, it is ruled that having anal sex with another man is equivalent to having black skin (and therefore equal protection of the 14th amendment applies) then LDS family services and Catholic Charities would be breaking the law by giving preferance to families where there is a father and a mother. The LDS church also would be limited in hiring practices in positions where the church would like to hire only temple-recommend holding individuals, or non-LDS people who affirm churc standards of conduct (e.g. The Church would HAVE to hire BYU professors who are Gay even though this is contrary to BYU's Honor Code).

Posted by Joe Walch at Mon May 19 17:29:12

Um, that comment above was mine.

Posted by John at Mon May 19 18:45:18

I'm pretty confused. To me, it sounds as though you oppose same sex marriage and adoption, and then you mention in comment #5 above that they should be allowed to adopt. Which is it?

Also, I am confused that you think anal sex equates black skin, at least in relation to the 14th amendment. I fail to see the relevance.

Lastly, I was not aware that BYU had to hire and conform to the hiring practices you mention. I thought that, as a private university, BYU did not have to hire anybody they didn't want to (though once again, I'm not sure I understand the danger in having a gay accounting professor, for example. None of my heterosexual professors discussed sexual intercourse during our discussion of FAS 109. And I believe a homosexual teacher would not either). If the Honor Code is a requirement for professors and students alike, then it's a choice to conform contingent to teaching/learning. You'd have to tell me how a gay professor would ruin BYU any more than rape hill or the inappropriate recruiting practices of the football team.

Once again, not trying to pick a fight. Just trying to understand what it is exactly you are trying to say.

Posted by Joe Walch at Mon May 19 21:09:30

I'm pretty confused. To me, it sounds as though you oppose same sex marriage and adoption, and then you mention in comment #5 above that they should be allowed to adopt. Which is it?

I think you're setting up a false dichotomy here. Church members who accept the Proclamation on the Family know that it is best to raise children under conditions of a home with both a mother and a father. I was simply stating the point that it's both legal and acceptable (even desireable) that a child be placed with decent single people, gay couples (yes, I know a few very decent, nice gay couples), etc. rather than retain them as wards of the state.

However, mark my words: LDS Family Services in California will shortly no longer be able to discriminate in favor of father-mother homes according to it's stated mission. I would hope you would be against that state action prohibiting the Church charitable organizations from discriminating against Gay couples in favor of married heterosexual couples.

Also, I am confused that you think anal sex equates black skin, at least in relation to the 14th amendment. I fail to see the relevance.

I agree with you, however, it's not me who thinks that sexual orientation is substantively equivalent to gender or race:

From the California Majority opinion
Thus, just as this court recognized in Perez that it was not constitutionally permissible to continue to treat racial or ethnic minorities as inferior (Perez, supra, 32 Cal.2d at pp. 720-
727), and in Sail’er Inn that it was not constitutionally acceptable to continue to treat women as less capable than and unequal to men (Sail’er Inn, supra, 5 Cal.3d at pp. 17-20 & fn. 15), we now similarly recognize that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.

In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights.

Now, to be fair, the court makes the distinction between sexual orientation and sexual conduct, but don't let that fool you; they are substantively equivalent with regards to marriage, and society has treated them equally in nearly every incest, reproductive, and social case throughout the history of this Nation, except in three court decisions in California, Massachusetts, and Vermont.

I thought that, as a private university, BYU did not have to hire anybody they didn't want to

Simply not true. If BYU said tomorrow that they would no longer hire African Americans, then BYU would be sued out of existance. Currently, there are many people who are suing the Boy Scouts out of existance, and they have succeeded in places like Philadelphia.

You'd have to tell me how a gay professor would ruin BYU any more than rape hill or the inappropriate recruiting practices of the football team.

I'm simply noting existance of such practices. You'll have to ask Pres. Thomas S. Monson to explain to you the merits of excluding Gay people from teaching at BYU. There was recently a couple who were excommunicated from the church for opposing the firing of somebody who was sympathetic to the Gay's plight, who wasn't even Gay! (He just spoke out in favor of equal rights for Gays). I think I wrote about it in my blog actually. The Church has shown it isn't going to accept any kind of criticism with regard to that issue from its members.

Posted by Susie at Mon May 19 21:56:21

Joe, it sounds to me too that you are contradicting yourself when you say "then I don't think a gay couple could/should be banned from adoption."

And this: "Children raised in homes with committed one-father/one-mother parental relationships are better off in probably every way imaginable" - better off than what? True though that statement may be, I think that children raised by committed homosexual couples are likely better off that most other alternative parenting arrangements.

Posted by anonymous at Mon May 19 22:31:16

Susie,
Thanks for your thoughts.
Is my belief that children are generally better off [in every way imaginable] when raised by mother-father homes incompatable with the opinion that Gays (or single people for that matter) shouldn't be banned from adoption? Perhaps you think the contradiction lies in my opinion that e.g. Catholic Charities should be able to discriminate against Gays (effectively banning them from adoption), but Gays aren't effectively banned from adoption since they can work through e.g. planned parenthood (that is, the babies that they don't kill first) or the government itself. Perhaps it would be better to say that the Government shouldn't ban Gays from adoption since kids raised by Gays are much better off than kids raised as wards of the State.

I don't think those statements imply any special civil rights to gays that aren't available to couples composed of a Father and his Daughter (who e.g. want to adopt jointly an orphan nephew).

Posted by Joe Walch at Mon May 19 22:41:16

Or, said differently, Catholic Charities should be able to discriminate in favor of Catholics, but that the Government shouldn't Ban non-Catholics from adoption (which would put far more children into state custody, even though a faithful Catholic is probably better than the average joe from the phone book). Do you see the validity of that position?

Posted by John at Tue May 20 09:01:56

Joe: Thanks for the clarification, and I believe I agree with you on the adoption point. Yes, the best relationship is a loving mother-father relationship. But because we live in an imperfect world, there aren't enough of those to go around. So then we as a society have to decide which is better: placing children in alternative situations (including gay couples, single parents, and non-loving mother-father relationships) or keeping them wards of the state. Sad to say, I believe many people, inside and outside the church, would choose the latter. I personally opt for the former.

I also did read the post regarding the couple that was excommunicated. It was provocative, and saddened me greatly. On the flip side, though, my brother-in-law came out of the closet, openly leads a gay life now, and yet he was only disfellowshipped! Go figure. This is one of those instances wherein I believe the memebers of the church have been given the gospel principles and the authority to interpret them (as Joseph Smith said should be the case), but have unfortunately missed the mark. I hope we get better at this in the future.

I hope I haven't angered or frustrated you. I was merely trying to understand your point of view. Thanks.

Posted by Joe Walch at Tue May 20 12:56:34

John, I don't get frustrated when talking with people (except perhaps people who maliciously mischaracterize my positions--like some of my evangelical friends have done with regards to my faith).

I relish in the tug and pull of ideas. I am constantly revising them. I don't think the same I thought on Gay Marriage etc. that I used to think two years ago. Basic principles have not changed much, but how those principles play out in public life has undergone some modification. It can get dicey, and I try to be very careful since the more I enter into public discussions about these topics, there's a greater chance that I mess up, and hopefully I don't lose my job or get rejected from some academic position (residency or professorship) as a result.

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