Prop 8 Defenders run into tough questions at BYU
12 September 2010 | By admin in UncategorizedOn Sept. 9, Chuck Cooper, the lead attorney defending Prop 8 in the federal courts, spoke to about 200 students at the Brigham Young University Law School. I was there and I promised to live tweet the drama as it unfolded. Unfortunately, I didn’t think anyone was paying attention so I decided to participate in the discussion instead. I apologize to those who were waiting for updates. Please consider this post the next best thing.
WARNING: This topic is really tough to talk about, especially as a practicing Mormon attending a Church-owned school. I find that no matter how I discuss Prop 8, I end up offending somebody. To help mitigate that situation, I’m going to narrow the focus of this post. I’m only discussing the legal arguments that Mr. Cooper and his colleagues have presented. I’m not going to get into any faith-based arguments that many of my fellow Mormons consider paramount.
Chuck Cooper failed miserably in attempting to defend Prop 8 to possibly the friendliest crowd he will even encounter. The problem centers on the fact that he has absolutely no proof that state-recognized homosexual marriages would harm the institution of heterosexual marriage in any way whatsoever.
The opponents of Prop 8 argue that it was an unconstitutional law because it violates the 14th Amendment, which requires equal protection under the law. Mr. Cooper admits that Prop 8 creates an inequality under the law, or at least a separate-but-equal situation, but hangs his case on proving that there is a compelling societal interest in legally defining marriage as a union between one man and one woman. To prove this, he makes a strong appeal to tradition.
Marriage has always been defined as an opposite-sex union in the United States. Courts, judges, elected representatives, and the general public, predominately favor restraining marriage to only heterosexual couples, he argues.
His argument from tradition fails, however, for two reasons. First, traditions change. The fact that we’re having this debate right now underlines that fact. And that’s not necessarily a bad thing. For instance, consider the following truism: every judge and elected representative in this country refused to recognize interracial marriages until the first one did. Nobody would argue today that interracial marriages are antithetical to American traditions and are therefore invalid. The second reason his traditional argument fails is that there is a competing tradition in the United States: equality. Americans believe in equality and it is a tradition that has shaped our laws and society for the last two centuries. We believe in it so much that we’ve even enshrined it in our Constitution. When arguing which tradition is more important, the opponents of Prop 8 can cite the plain meaning of the text in the Constitution. Chuck Cooper, however, is left to make broad simplifications of the historical role of marriage in America. From a legal standpoint, the primacy of equality is obvious.
The only argument left for Mr. Cooper is to make a prediction about how state-recognized homosexual marriages would harm the admittedly vital institution of heterosexual marriage in America. And so, when he was done speaking and asked if anyone had any questions, I nearly jumped out of my seat. He recognized me and I asked something like this:
Mr. Cooper, you’ve made a strong case for the importance of marriage in our society. I applaud you for that, and I agree with you. However, what you’ve failed to do here and what you’ve failed to do in court is show how homosexual marriage would harm heterosexual marriage in any way. Can you explain that now?
His answer:
Recognizing homosexual marriage would not harm heterosexual marriage at all, and that it was never a point he felt he needed to prove in court. This shocked a lot of people in the room because they had assumed that was the whole point of Prop 8 — defending traditional marriage.
He then went on a big, looping, lawyerly explanation that ended by an apparent contradiction. He argued that the role of marriage in society was primarily to benefit children, and not to recognize romantic and committed love between two adults. Redefining marriage outside the realm of procreation and child-rearing would weaken families in America, he said. While he didn’t state it, he was trying to have it both ways. Recognizing gay marriage would obviously not hurt traditional marriage in any way … but it would.
So, I asked a follow up question:
Many committed gay couples are currently participating in child-rearing. Whether you want to legally recognize it or not, it’s a fact. So recognizing homosexual marriage wouldn’t change the traditional purpose of marriage at all. In fact, your own witness testified in court that the children of gay couples would be seriously harmed because their parents lacked the societal recognition of marriage. How can you explain that?
He couldn’t. He got a bit nervous, fumbled a bit, and went on a seemingly endless rant about the societal dangers of single-parenthood. At one point, the person sitting next to me turned and whispered, “So he’s saying that committed gay parents are better than single parents?”
“That’s what he’s saying, and sociological studies have shown better outcomes as well,” I said.
“So, he doesn’t really have a case?” he said.
“No,” I said. “I don’t think he does at all.”
I could have kept pressing Mr. Cooper, but I didn’t want to hog all the time. Plus, I thought it was fairly obvious that he was completely unable to answer my questions.
The next question was about their ability to defend Prop 8 on appeal—nothing that interesting. The next question, however, was a doozy. Another BYU law student, whom I’ve never met, listed the advancements of reproductive technology in the last couple of decades. He then asked Mr. Cooper if these advances, which make it entirely possible for gay couples to fully participate in procreation and child-rearing, wouldn’t seriously hurt his arguments.
Mr. Cooper said that his arguments were still sound, but he couldn’t explain why.
A few more questions and Mr. Cooper stepped down from the lectern with what I must assume was a sense of relief. The whole experience left me with one question: If Chuck Cooper can’t defend Prop 8 in front of a group of BYU students, then how is he going to defend it in front of the Supreme Court?
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12 September 2010 | Karl Raeder Said:
A moral and just society is the object of our legal system. Homosexuality is fundamentaly immoral. That which does not fit or follow in the intention and design of the human corporeal is antithetical to human nature. Homosexuality is a crime against our human nature and thus should be a crime against society.
kxar
12 September 2010 | brooke Said:
marshall -
i did something without asking you - i copied your post and sent it to the usu allies on campus list, and eugene’s justice not war volunteers list. i did give this url in case people wanted to leave comments. i hope you don’t mind - i just thought more people would read it if they could just read it within the email rather than having to click through. anyhow - thanks for your thoughtful write up and questions posed to them. i’m glad you are there. it’s good for people like us to be places where we aren’t preaching to the choir. it can be hard for us, but good for them.
12 September 2010 | TJ Hilton Said:
Excellent write up. Saved this URL for reference in future discussions
12 September 2010 | Anon Said:
@Karl Reader. Your logic fails. You didn’t read the article. “You have absolutely no proof that state-recognized homosexual marriages would harm the institution of heterosexual marriage in any way whatsoever.”
That’s the only point that matters and this is why gay marriage WILL be legal, it’s only a matter of time.
They thought it was immoral for blacks to vote, they thought it was immoral for blacks to be free, they thought it was immoral for women to vote, they thought it was immoral for white people to marry black people. Those walls fell and this one will too. Welcome to the 21st century. Come along willingly or be dragged kicking and screaming
12 September 2010 | Kelly H. Said:
Hmm, please describe how being gay is ‘fundamentaly immoral’ - I am assuming what you mean is that in your religion or in your opinion is is immoral. Fundamentaly immoral means it is immoral to everyone - by what basis is it immoral for everyone?
When I married my husband I knew already we would not be able to have children. At age 20 I already knew this, should we not have been married? Is marriage only for those who procreate? If so, there needs to be a real lock-down on marriage. No second marriages, perhaps, no older marriages, no infertile marriages. Perhaps we should pass a law where if a couple doesn’t procreate within 5 years their marriage is annulled.
I don’t know about you guys - but I married for love and for social recognition. Period. While my Mormon family didn’t approve of me marrying outside the church the State of Missouri did - as they should have. Equal rights for equal taxpayers.
12 September 2010 | Becca VT Said:
Very interesting - I opted to study instead of going to this, and now I’m regretting it. I figured I would be one of the only ones in the audience (perhaps congregation would be more fitting) that would disagree with Mr. Cooper, and it would be a roomful of people just nodding their heads and saying yeah! absolutely! anybody who doesn’t think so hates Jesus! I heard afterward though that someone had asked some “hard questions,” and that you had made them think about things in a way they hadn’t before. I’m very glad you did, and that I found this write up of them so I didn’t miss out too much. Thanks!
12 September 2010 | mdan Said:
Karl,
You say “That which does not fit or follow in the intention and design of the human corporeal is antithetical to human nature.” Would a society then be moral and just by denying developmentally disabled couples the right to marry because of the danger of them reproducing? Or couples with some other genetic component that would likely result in, for example, a deaf child? That surely goes against the intent and design of the human corporeal.
12 September 2010 | Becky Said:
Karl…can you hear yourself? I can, and it made me throw up in my mouth.
12 September 2010 | matt Said:
imagine this argument in a courtroom: with medical advancement in procreation, a gay couple can adopt a child or hire a surrogate to carry a child to term using one of their sperm as a donation. a lesbian couple can both get pregnant via donors.
they would, in turn, have obliterated the procreation argument.
just a thought.
13 September 2010 | taterz Said:
@Karl, et.al:
The whole point of the decision throwing out prop.22 and the decision throwing out prop.8 is that where people can be considered to have a liberty, to restrict that liberty requires that the state show a “compelling interest”. Whether you agree or not that gay marriage is a good idea, the narrow window in California during which it was legal create the presumption of a legal right for gays to marry in CA. Walker, in casting out prop.8 specifically said that the law has no interest in the moral issue.
To establish that there is a “compelling interest” for the government to take away a right or liberty, you first have to have a theory of how individuals and/or society are harmed by the exercise of that liberty. No harm means no state interest, means there is no legal justification to prohibit it. Gay marriage opponents fail specifically because they have no credible theory which demonstrates how anyone is harmed. Saying “society would be hurt” or “God will get angry” etc. are not legally defensible theories of harm.
13 September 2010 | Krabboss Said:
@Karl Raeder
I think it would be worth your time watching this
http://www.youtube.com/watch?v=dWNW-NXEudk
I know you won’t, partly because you’re so firmly rooted in the beliefs invested in you by your parents/culture/whatever that you don’t want to hear anything against it and partly because it’s a whopping 30 minutes long. It’s a great video though, and if you’re willing it should help you understand what’s moral and immoral.
13 September 2010 | zowie Said:
Karl Raeder: “…That which does not fit or follow in the intention and design of the human corporeal is antithetical to human nature. …”
The problem is that nobody has yet found a single objective intention and design for humans. By “objective” I mean that it can be proven regardless of the belief system of the arguer. (For example, it can be proven that nuclear reactions exist objectively: regardless of your belief system, you can be killed by them.)
That places “the intention and design of the human…” into the realm of religion, which (in this country) is by design separated from the realm of law.
13 September 2010 | Chris Said:
Being a mormon school, I’m surprised the tradition of polygamous marriage changing within the Mormon religion didn’t come up when he brought up the tradition of marriage.
13 September 2010 | Keep Sweet Said:
I have to respond to the Taliban-style comment left by Karl Raeder.
They used to talk about blacks the same way. It’s sad and infuriating. I used to think like that and worse.
Now I’m devastated to imagine a 15 year old gay kid hearing a respected adult say that about him/her, that you are a “crime against nature and society” because of a genetic/endocrinal variation as random and common as being left-handed. And then they wonder about the epidemic of suicide or why like half of homeless teens in Utah are queer.
I left the Church because of attitudes like Karl’s and I think I made the proper choice in resigning.
13 September 2010 | GraciesDaddy Said:
Marshall:
Well… seems you didn’t leave Mr. Cooper any wiggle room at all. You turned him into his own witness: Mr. Blankenhorn. That, and backed him into a corner just like Judge Walker did when he exasparatedly confessed to the judge’s questioning of the “harm” marriage equality would do to traditional marriage: “Your Honor,… I honestly DON’T KNOW!”
He should be used to that by now. Supreme Court, indeed.
BTW/FYI: I’ve shared this on my FB wall… and there are links to your entry at some other sites so, expect a LOT of hits on this one. [If your access the 'net through the WHY-BEE-YOU server, y'might consider a different ISP for a few days, jic "They" are watching where the traffic's coming from.]
13 September 2010 | Spencer Said:
O.k. Marshall, we definately need to debate this.
Consider, for starters the ambiguity between two statements:
“Redefining marriage to include non-monogamous relationships will harm some particular monogamous couple.”
versus:
“Redefining marriage to include non-monogamous relationships will harm society’s commitment to monogamy.”
Once it is seen that the defender is advancing a claim more like the second than the first it becomes much easier to defend. Much harm is done by proponents of SSM by not disambiguating the two.
13 September 2010 | Krabboss Said:
@Spencer
I don’t see the issue in either case there. What concern is it of yours if two people consent to include others in their marriage? Polygamy is not cheating - not even close. How is it negative in any way if more and more people wish to go down this path and are able to do so in a mature way?
By the way, I’m not implying you’re against same sex marriage (from what I can tell, you’re not). That’s great! I just think society’s desire to cling to an old tradition is a bad idea. We should respect any relationship between any type or number of people so long as it is consensual.
13 September 2010 | InYourFace Said:
It’s obvious that Mormons were key to getting Prop 8 to pass. And that leaves an ENORMOUS white elephant in the room: the separation of Church and State.
The State has no business meddling with religions, and religions have no business meddling with the state. The protections that religion enjoys from state actions becomes irrelevant when a religion seeks to exploit that advantage to the detriment of true freedom of choice.
That you’d have a discussion by your religious leaders on the status of a political matter is brazen to the point of criminal.
13 September 2010 | Bruce Barton Said:
I’m so interested at so many different concepts or approaches of how to deal with or to deny prp 8. I did participate in “Prop 8: The mormon proposition” and suggest that it be seen.. It is well done
Personally, the difficulty is personal–right in my relationship and my home. I have had one relationship with the same man and we just had our 34th anniversary this past april. We joyfully are raising an amazing son who will be 12 on halloween. The hoops we went through to protect our son in case one of us became ill and died was honestly rediculous. Not only do we have the very limiting Domestic Partnership registered, we in addition had to have my partner go through a second parent adoption. I am Troy’s biological parent. All my family does believe we are great dads, and they are mostly LDS or Pentacostals. None really in our camp. All of the sport team parents like us and ours is kid central.
Now is the time to stop the “well I feel…..” rhetoric. Ask the countries such as Canada, Scandanavia, Great Britian and on and on. What is their success. Ask here, what str8 couples get their wedding done by a justice of the peace, a marriage by a majistrate or worker in the vital statistic departmnet. That seems to be exactly as is suggested in many forums for gay weddings.
My partner and I had a service in our church, Metropolitan Community Church, called Holy Union. That is our secondary anniversary.
we break some of your stereotypes–long term, have a wonderful son, totally open in our small town as involved dads. interesting how all we have to do is be ourseolves, teach our children well as President David O McKay taught. And we do. And we want the same rights as our cousins, our friends, even folks across town we don’t knowq. Sinple–and we are patient..
this is a very good blog THANK YOU MARSHALL
13 September 2010 | JB Said:
I would like — in the strongest possible terms — to commend you on your decision to bail out on “live tweeting” in exchange for active participation and later, thoughtful reporting.
If you had just live-tweeted, I never would have come across this, because nobody would link to live-tweet transcript of a past event, and such a transcript is of epically limited value in the long run, anyway.
13 September 2010 | ConnyB Said:
@Karl Raeder
That’s a riduclously weak argument. In fact, there is ongoing study of natural homosexuality among countless thousands of observed species from avian, to mammal, to insecta. Just because it doesn’t favor reproduction does not mean is has no other purpose.
Clearly, it exists, and not just in human nature. It exists throughout the animal kingdom. For some reason, homosexuality persists, and will continue to persist. One can participate in homosexual activities, but not be a dedicated homosexual as well. This is what is termed as bisexuality.
Get over your religion, and open your eyes to reality.
13 September 2010 | legacy Said:
By this logic all consenting unions should be recognized, and that is ok. Polyandry, polygamy, homosexual, heterosexual, all should be recognized as long as the adults are consenting. The standard for consent could be the same as we currently have for marriage.
Or we can altogether avoid this issue and abolish state recognition of any type of marriage, and individuals can have private unions amongst themselves. As it stands the state recognized model of marriage is inherently discriminatory ie. only one type (soon two types) of marriage is recognized. Even when gay marriage is recognized, other less popular arrangements will not be and that is no less discriminatory albeit the harm is not as widespread.
Yes gay marriage is a step in the right direction, but only if we intend to be logically consistent and willing to extend our logic to it’s ultimate conclusion.
13 September 2010 | Alex Said:
No matter how inane and baseless the arguments for Pop 8 are, I have no doubt that there will still be Supreme Court justices who defend it. The real question is will they be among the majority?
13 September 2010 | Moby Said:
Judge Walker also made his ruling using exact wording in his Findings of Fact that came from Justice Kennedy. Many pundits believe that Walker wrote the ruling almost specifically for Kennedy.
13 September 2010 | Nikki Said:
Of course there will be a couple. It’s amazing to see how many walls these people knock down in the twisting corridors of logic to get to a law based solution that matches their ideology. That being said, I think that there is enough integrity among the justices that, if this case should come down to it, the ruling will be upheld. Perhaps these will be famous last words, but I’m confident in the outcome. Unlike Republican elected officials, the conservative justices on the court do not have to appeal to the extremely oppressive base.
13 September 2010 | DrTed Said:
Kudos to Marshall for airing this discussion more widely, and to BYU for hosting a Prop 8 conversation at all. By all accounts, the pro-Prop 8 forces mounted a weak case in federal court in San Francisco, apparently assuming the wrongness of same-sex marriage as self-evident.
This appears to have been the same basic argument as Mr. Cooper came to the friendly confines of BYU. I’m with Marshall when he wonders: “If Chuck Cooper can’t defend Prop 8 in front of a group of BYU students, then how is he going to defend it in front of the Supreme Court?”
I’m no lawyer, so I’ll leave the legal arguments to others. But Mr. Cooper’s forces are going to have to do better, because what’s self-evident to me is that, absent some demonstrable harm to others, what two individuals decide to do with their own lives is nobody else’s business.
13 September 2010 | Chino Blanco Said:
“We should respect any relationship between any type or number of people so long as it is consensual.”
I think the “rule of opposites” vs. “rule of two” debate is a fair one. But, let’s at least be clear that they’re not the same rule. As far as I can tell, no right to marry any number of people is established when the rule of opposites is thrown out.
13 September 2010 | jay jones Said:
If we end up allowing gay people to “marry” what’s next, allowing American Muslims to have more than one spouse at a time?
13 September 2010 | Epic Wizard Said:
“A moral and just society is the object of our legal system. Homosexuality is fundamentaly immoral. That which does not fit or follow in the intention and design of the human corporeal is antithetical to human nature. Homosexuality is a crime against our human nature and thus should be a crime against society.
kxar”
But who’s morals? It’s obvious that you mean yours. Personally mine run along the lines of “as long as it doesn’t harm others it’s fine” so what exactly is homosexual marriage or sexual relations doing to harm you besides making you go “squik” a bit (something that is entirely your choice, you’re free to look the other way or not think about it).
I’ll ask you the same thing I’ll ask anyone making a case that homosexuality is immoral. Can you defend your argument without making any references to a religious text or using any references to God, a higher power, or your faith?
If the answer is no then I’d respectfully ask you to leave me to my beliefs (or lack there of) and I will leave you to yours.
(sorry to the owner of this fine blog for bringing up exactly the arguments you avoided)
13 September 2010 | Epic Wizard Said:
Oh and Jones, American Mormons already do that. Muslims rarely engage in Polygamy. (if your comment was meant to be sarcastic then oops)
13 September 2010 | Matt Said:
@ jay jones:
There are significant social studies that show that polygamous relationships do cause harm to society – specifically to young males who cannot compete economically with the more fiscally endowed. Plus the sociological environment is set up for partnerships based on 2 adult individuals – not groups. Where it is not out of the range of possibility that questions regarding polygamy would arise in the future, that is not the legal question at hand.
Also interesting that you would assign the possibility of advancement of polygamy on Muslims. Read LDS history much?
13 September 2010 | jacobn Said:
Did Mr. Cooper address what he felt should have been the appropriate standard of review? If it’s strict scrutiny, he fails miserably. He might be able to weasel out a win if he can somehow present a cogent argument that Prop 8 should be subject to some form of intermediate to rational basis review.
I agree that the legal arguments here are weak, but I’ve never really heard the argument for standard of review from Prop 8 proponents.
13 September 2010 | spencer Said:
@Krabboss:
Actually, you’ve got me exactly wrong. I’m opposed to SSM. The point (one of the points) to consider is the arguments used by SSM proponents to undermine the one man one woman norm can, with a little bit of tweaking, be used to undermine any publically endorsed sex norm, including the ones proponents of SSM claim to support.
I do not share your optimism with regard to tradition. Shed all traditions and we lose 90 percent of the intergenerational knowledge that humanity has acquired, like Edmunde Burke pointed out. (recently redefended by Theodore Dalrymple in “In Praise of Predjudice.)
13 September 2010 | Kullervo Said:
I oppose Proposition 8 and support the legalization of gay marriage. That being said, I think that the 14th amendment argument in favor of Proposition 8 is stronger than you’re giving it credit for. Honestly, I think you have dismissed the argument for tradition-as-legitimate-government interest much to quickly.
The minimal scrutiny test, which we are in the realm of here, requires that the legislative classification be rationally related to a legitimate government interest. That’s all. It doesn’t have to be narrowly tailored. It doesn’t have to be compelling. The interest in question does not have to outweigh all other interests.
The fact that traditions change does not mean that the government has no legitimate interest in preserving them. And the fact that there is a competing interest–or even a competing and contradictory tradition–only means that it is precisely the kind of question that is best answered by the democratic process. By introducing the inherently public-policy-based question of balancing interests and sub-interests, you elevate the level of scrutiny and change the constitutional standard. The whole point of rational basis review is to give state governments the latitude to set public policy and balance the morass of competing interests involved in government as they see fit.
Rational basis review protects against arbitrary legislative classifications, not against erroneous public policy determinations or improper weighing of social values. “Which tradition is more important” is not relevant for answering the Constitutional question.
13 September 2010 | Ben Said:
@InYourFace You suggest that a church/religious leader should be unable to publicly voice opinions on matters affecting their beliefs and/or practices. This is a very broad understanding of “separation of church and state” with very real First Amendment implications. Imagine not allowing the Catholic church to make public statements about a new law requiring the use of contraceptives, or Jewish synagogues/organizations not being able to voice their opinions about a new law requiring certain meat inspection guidelines which contravene Kosher practices. This cannot be the case.
@Kullervo You beat me to the punch. This post’s emphasis on “proof” seems to assume an understanding of the term ‘proof’ that isn’t required to meet rational basis (or arguably moderate) scrutiny. It was this aspect of Judge Walker’s decision that I found the most striking. While there was reference to rational basis scrutiny, it appeared quite often to be a higher level of scrutiny than is normally applied in similar cases.
Marshall, just because Mr. Cooper was apparently unprepared for the questions he was asked at BYU law school doesn’t mean that answers to those questions don’t exist. It is also quite possible that he assumed, like another poster here, that this would be a pep-rally for proposition 8 and that he wouldn’t need to be prepared. To assume that this issue will be a cakewalk is dangerous, indeed.
13 September 2010 | Guy Noir, Private Eye Said:
More Smoke & Mirrors courtesy of LDS, Inc.
13 September 2010 | admin Said:
I appreciate the comments from @Kullervo. I didn’t fully examine what level of scrutiny would be applied. Boies and Olsen have argued that marriage is a fundamental right and therefore would require a compelling state interest. But who knows if that will hold up on appeal? So, let’s assume that we’re going to move forward with a rational-basis level of scrutiny that requires a legitimate reason for the law. What is it? If it causes absolutely no harm to the traditional institution of marriage, as Mr. Cooper claims, then what is the legitimate reason for the law? You said just because Cooper couldn’t answer it doesn’t mean the answer isn’t out there. So what is it?
I do strongly agree with you, however, that this still will not be a cakewalk by any means. The level of scrutiny will definitely play a major role.
13 September 2010 | Nom_de_Guerre Said:
I really liked this post and many of the comments that followed it.
I’m not as smart as many here so instead of presenting a valid legal argument I’ll use Grover from Sesame Street to present my point of view to all the Karls out there in under 1 minute:
http://www.youtube.com/watch?v=UQJvSzkVfRg
Enjoy!
13 September 2010 | Lars Said:
@Karl Raeder - You say “That which does not fit or follow in the intention and design of the human corporeal is antithetical to human nature.”
If you follow the doctrinal argument that “the NATURAL man is an enemy to God” then anything antithetical to nature would not of necessity be evil.
13 September 2010 | Ben Said:
@admin It is prudent to default to rational basis review in this case. Sexual orientation is not yet a basis for a finding of “suspect class,” and while there are factors that favor finding it to be suspect, the biggest difficulty is the impressive mobilization in favor of SSM marriage.
However, I think you’re mixing your standards of review. Rational basis review doesn’t require a “legitimate” reason; true rational basis review calls for any rational reason. And usually, the court doesn’t even evaluate the strength/reliability of the proof, as long as the state can point to something (anything), the statute passes. Thomasson v. Perry and High Tech Gays v. Defense Industrial Security Clearance Office show how rational basis should be (as opposed to mere lip service) applied to sexual orientation discrimination cases.
Finally, “marriage as a fundamental right” is an interesting argument. While it is generally accepted that the right to marry is a fundamental right, I am not sure that the right to marry whomever one wants is a fundamental right. And that is what would have to be argued, is it not? That would open a whole can of worms that I’m not sure most people want to open. We purposely place limits on marriage for age, consent, immigration, and probably a myriad of other reasons. However, one would have to think that at least some of those reasons would not survive strict scrutiny (immigration in particular).
In any case, thanks for the post. Good food for thought. Have a good night.
13 September 2010 | admin Said:
@Ben, thanks for your comments. It helped clarify some things for me.
14 September 2010 | Sugata Biswas Said:
Marshall…well done. The blog was excellent and the discussion board was pretty civil. In the end, nonsense laws like Prop 8 will fall….just like all those ridiculous laws barring voting rights, inter-racial marriage, basic civil rights, etc.
I think a very legitimate question for active LDS members is ‘does your belief in a living prophet give you any wiggle room to disagree.’ I would tend to think not. Although LDS members are encouraged to seek the truth for themselves through personal prayer, I don’t think you can go counter to a directive from the first presidency. Right? Maybe I missed something.
Anyways, good luck.
14 September 2010 | livehappy Said:
Marshall,
You are my hero.
14 September 2010 | Seth R. Said:
I’m a believing Mormon. So I do not recognize homosexual unions as “marriage” as a theological matter. I have no particular desire to see homosexual unions recognized in LDS temples, for instance. I believe the union of male and female is a key theological point for us and should not be abandoned.
But as a legal and civic matter, it’s an entirely different story.
Like Marshall, I just can’t see the practical societal harm - aside from undermining religious concerns. It’s really hard to make the argument that a decent homosexual couple should not be allowed to raise a child, when, right down the street, some abusive heterosexual dad is ironing his child’s fingers because he wet the bed again.
My sense has been that heterosexual marriage has enough of its own problems to deal with, without looking for fights with homosexual unions.
The utility arguments just don’t work here in my opinion. And the reality is that homosexuals are being treated unfairly.
This is why I propose a third option: take government out of the “marriage” license business entirely, and craft a civil union code for everyone. I first proposed this during the summer before the 2008 election in California that decided Prop 8, on this blog:
http://www.nine-moons.com/?p=813&cpage=1
The conclusion is that homosexual unions are going to happen. As a matter of pure fairness, the majority is eventually going to back them. The concern then becomes solely for religions to protect their own ceremonial and theological turf from societal and government coercion and pressure.
This can only be done by de-linking marriage from the realm of government and making it a private matter of belief.
Prop 8 was a splendidly organized campaign, but it lacked any real foundation of solid argument and direction. As such, it can only ever play the role of a hastily constructed stopgap measure for the LDS Church. It’s going to be toppled eventually. And when it does fall, the LDS Church is going to be in a very awkward situation - having essentially acknowledged that marital legitimacy is something the government has the right to bestow.
Far more useful that Prop 8, would have been a campaign of attacking the state’s right to issue marriage licenses in the court system. I don’t know how such a campaign would be best crafted, but I think it’s the last best chance the LDS Church has to preserve the institution of marriage in the form it desires it.
14 September 2010 | Kullervo Said:
Ben’s got it right.
Although I wonder if as a practical matter, the Moreno case creates a “slightly higher than rational basis” test for when there is evidence that a legislative classification is motivated by animus. In Moreno, the court appears to be substantively critiquing the effectiveness of the legislative scheme, which analytically should not even be done in a rational basis framework. But the court does it anyway, and it appears to be doing it because the specter of group animus overshadows the whole thing.
I think it’s a bad result and a badly decided case, but I also think that for most people Moreno stands for “legislative classicifcation based on group animus cannot survive rational basis review.” And that’s not properly a part of rational basis review at all.
An alternate read of Moreno might be that a legislative scheme can be so ill-fitted ot the legitimate government purpose that it ceases to be rational–which means the stuff about animus is dicta–but I don’t think that’s how the case is generally taught, understood, and accepted precedent-wise.
14 September 2010 | Latter-day Guy Said:
Great write-up. Prop 8 was a black eye as a referendum, and a laugh as a court case. Whether or not the Church ever shifts to a more humane position/approach on the issue of homosexuality, it is already apparent that nobody seems able to enunciate cogent reasons to refuse homosexual couples the same kinds of privileges and responsibilities that pertain to heterosexual couples in civil society.
Best of luck to future generations of Mormons who try to make sense of the Church’s political involvement on this issue for the past 15 years or so! Perhaps it could be sold as some kind of socio-political “Zion’s Camp” experience, claiming that those involved grew and learned and were tested. However, just like “Zion’s Camp,” sprinkling the facts with airy-fairy fluff won’t really camouflage the reality that it was, from top to bottom and beginning to end, a disaster, a fiasco, a joke.
14 September 2010 | Mike Said:
This is a completely one-sided interpretation by an admittedly insane liberal. What do you expect?
14 September 2010 | Renverseur Said:
The question should be irrlevant to a judicial determination of this issue. The original ratifiers of the fourteenth amendment would never have considered that homosexuality (or sodomy or buggery as they would have called it since “homosexuality” is later term) was protected by that amendment. If we are to have a government of law rather than men, the foregoing analysis ends the judicial discussion. Judge Walker’s decision and any precedents it relied on (including those of the Supreme Court) are wrong as a matter of law. This is the only acceptable outcome if we are to live in a democracy rather than a judicial dictatorship.
The issue of gay marriage should lay solely in the province of the legislative branch. The Constitution is silent as to homosexuality. Therefore the judiciary has no authority to make any determinations on the subject.
Conversely, factual issues about the benefits or detriments of gay marriage are relevant to legislative decisions. Just as nothing on the Constitution authorizes the courts to impose gay rights on society, nothing in the Constitution prohibits state legislatures from enacting laws to protect gay rights, including gay marriage. This issue belongs exclusively in legislative chambers, not court chambers.
14 September 2010 | Brad Carmack Said:
Haha, hey Marshall good to meet you!
I’m the “another BYU law student:” “The next question, however, was a doozy. Another BYU law student, whom I’ve never met, listed the advancements of reproductive technology in the last couple of decades. He then asked Mr. Cooper if these advances, which make it entirely possible for gay couples to fully participate in procreation and child-rearing, wouldn’t seriously hurt his arguments.”
I’m flattered that you thought that question was a doozy. Dr. Wardle thought my follow-up question (demanding the link or nexus between Cooper’s evidence and his position) was a good one.
My blog post telling my version of the Cooper story (http://bradcarmack.blogspot.com/2010/09/in-re-proposition-8-perry-v.html) is very similar to yours. Since I import my blog posts as facebook notes, I received a number of comments responding to my post. I answered about 20 of those comments in another post (http://bradcarmack.blogspot.com/2010/09/responses-to-comments-on-my-in-re.html). My somewhat related post about homosexuality (http://bradcarmack.blogspot.com/2010/02/i-support-heterosexual-members-of-lds.html) also contains a thoughtful and detailed analysis. Check them out!!
Funny thing, I was interviewed twice after the event, and the Daily Universe even quoted me. In one of the interviews (it might have been with the other reporter, I don’t remember) I expressed my opinion that Cooper’s arguments were thin; I was quoted only as saying, “his tradition-based defense is very relevant.” Gotta love the press!
I expect a comment from you on my blog post. Thanks for recording your experience as well.
14 September 2010 | Quayle Said:
“Best of luck to future generations of Mormons who try to make sense of the Church’s political involvement on this issue for the past 15 years or so! Perhaps it could be sold as some kind of socio-political “Zion’s Camp” experience, claiming that those involved grew and learned and were tested. However, just like “Zion’s Camp,” sprinkling the facts with airy-fairy fluff won’t really camouflage the reality that it was, from top to bottom and beginning to end, a disaster, a fiasco, a joke.”
On important social issues, voting according to one’s world view is never a disaster, a fiasco, or a joke. It is the essence of democracy.
And so is organizing to urge others to vote their world view.
So what is there to explain or interpret. Mormon leaders urged the members to look at the issue and to vote, and to urge others to do the same.
The Mormons were on the majority side of the vote, which kind of destroys your lame “Zion’s Camp” analogy, doesn’t it.
The votes carry their own innate value and meaning. They need no explanation or bolstering, regardless of how the courts deal with the constitutional issue.
14 September 2010 | Eric Said:
Here’s an interesting take from one author on why he thinks gay marriage won’t work: because it isn’t necessary.
http://weeklystandard.com/Content/Public/Articles/000/000/016/533narty.asp?pg=1
15 September 2010 | john Said:
My bias towards BYU students as being unable to think for themselves was seriously confronted by the questioning put forth to Charles Cooper. I resigned from the church because I felt Mormons in general could only pray, pay and obey.
I’m amazed to find out how seriously flawed my thinking has been about BYU students and their ability to think for themselves. Thank you for the revelation!
15 September 2010 | davenycity Said:
great blog thank you
15 September 2010 | Kullervo Said:
Eric, I only skimmed the article, but it looked like it was going in the direction of “there’s no need for gay marriage because marriage is historically about creating the parent-child relationship.”
That’s nonsense, both historically and in terms of being relevant to modern marriage. Historically, marriage has been as much about property rights as it has about parenthood. And in today’s society, marriage serves a lot of legal roles and legal functions entirely unrelated to parenting. Even if the author is correct, and marriage in ancient societies was a cultural artifact intended to secure a family bond in order to raise children, that’s just not what marriage is as a legal artifact right now. And it’s not even what amrriage is at present as a cultural artifact. You can pooh-pooh modern cultural understandings of marriage all you want, but it’s still the cultural understanding we have now and the one that almost every American has grown up internalizing. So to say “but our ancestors’ culture viewed marriage as serving a totally different function!” says nothing about whether we should have gay marriage now.
Maybe gay marriage would not have been necessary for our ancient ancestors In fact, it absolutely wasn’t necessary! See ancient Greece, where homosexuality was practiced all the time but just had nothing to do with the cultural expectations of marriage. But we are not living in ancient Greece, and most of the norms of the ancient Greeks just don’t apply to us at all (we don’t leave baby girls out to die, for example). Arguing contemporary public policy from the cultural norms of ancient people just doesn’t make sense.
Furthermore, it’s a big leap to get from “marriage is about raising children so homosexuals should not want to get married” to “it is sensible policy to forbid homosexuals from marrying.”
Is it sensible policy to forbid people who have had a hysterectomy or a vasectomy from marrying? The same logic should apply. What about people who openly do not want children? Would it be okay to legislate that you have to sign an affidavit swearing that you want children in order to get a marriage license? What about a law that gives couples a certain number of years to have kids, or have their marriage nullified? If it makes sense to forbid gays from marrying, then these laws also make sense. Would you support them? If not, why the difference? Why forbid gay couples from marrying on the basis of their inability to have children and not infertile straight couples on the ame basis?
And adoption is sort of an obvious rebuttal, too. Gay couples can already adopt. Single people can adopt. If marriage is about raising children and not about sex, then why do we let unmaried people adopt? And why not let gay couples adopt? And if you think that children require a male and a female parent to be properly raised, and therefore gay couples and single people should not be able to adopt, would you also support a law taking children away from single parents? Why not? What’s the difference?
The difference is, the line about “being against gay marriage is about families raising children, not about the Bible or homophobia” is a complete crock.
15 September 2010 | Latter-day Guy Said:
Democracy and stupidity/bigotry are not mutually exclusive. Of course everyone may vote according to their worldview, but that doesn’t change the value of that worldview. And, yes, urging others to participate politically is just dandy; doing so by proliferating specious and misleading arguments is less so. In fact, I would say it is destructive to democracy.
How delightfully disingenuous! An honest appraisal of the Prop 8 campaign will reveal that the Church was not simply counseling members to be politically active. Tremendous pressure was brought to bear, particularly by local ward and stake leaders. The situation was frequently framed in terms similar to the war in heaven, suggesting that if you didn’t donate and/or volunteer enough, you were a minion of Satan. The upshot of the whole situation was that many Mormons voted for Prop 8 against their better judgment, because the prophet told them to. (And please don’t try to argue that the prophet didn’t tell them HOW to vote on this issue––the message was very clear.)
Not remotely. (Why don’t you actually read what I wrote next time.) I was comparing the Church’s (more than decade-long) carefully orchestrated campaign against gay rights (not just Prop
to Zion’s Camp. Prop 22 passed with a comfortable 20 point margin in 2000. Prop 8 squeaked by with 4 points. Within the next decade or so, gay marriage will become a reality in CA and many other states, and you know what will happen then?
Nothing.
Nada.
Zip.
The sky is not going to fall in CA any more than in Canada and the bevy of other nations/states that allow gay marriage. Mormons will look back on this period in the same way that we look at Church statements and GC talks condemning miscegenation: with discomfort and embarrassment. And perhaps we will try to salvage and justify all the money/time/effort involved by couching the issue in some narrative of faith and testing (à la Zion’s Camp).
That, sir, is meaningless arse-dribble.
15 September 2010 | Latter-day Guy Said:
“Prop 8)” should, of course, read “Prop 8,” although it looks pretty groovy with the sunglasses.
15 September 2010 | Latter-day Guy Said:
Facepalm. The emoticon gods are cruel today.
15 September 2010 | kaye Said:
What about the “will of the people” in our democracy? 52% of the voters think a particular group of people are disgusting, immoral and possessed by satan, should that not be sufficient constitutional justification to deny them certain rights?
15 September 2010 | Quayle Said:
Democracy and stupidity/bigotry are not mutually exclusive. Of course everyone may vote according to their worldview, but that doesn’t change the value of that worldview.
So your issue, then, is clear with the world view. So why not just come out and say it - just say that you believe Mormons are wrong about God, the nature of man, and the reality of revelation and prophecy - and be done with engaging Mormons and discussing your false issues.
“Mormons will look back on this period in the same way that we look at Church statements and GC talks condemning miscegenation: with discomfort and embarrassment.
Oh, so you don’t doubt the reality of prophecy, you just think you are the prophet.
I see.
15 September 2010 | Quayle Said:
“Not remotely. (Why don’t you actually read what I wrote next time.) I was comparing the Church’s (more than decade-long) carefully orchestrated campaign against gay rights (not just Prop
to Zion’s Camp. Prop 22 passed with a comfortable 20 point margin in 2000. Prop 8 squeaked by with 4 points. Within the next decade or so, gay marriage will become a reality in CA and many other states, and you know what will happen then?
Nothing.
Nada.
Zip.”
And you make this claim based on what long term evidence? Or are you making the claim on your authority as a prophet? I say that because you appear comfortable in that self-assumed role, telling us all what will and won’t happen in the future. (That also might explain why you seem to be so angry at your “competition” in Salt Lake City.)
“Tremendous pressure was brought to bear, particularly by local ward and stake leaders.”
In a church association that is entirely voluntary, I would be very interested to hear what kind of pressure someone as intelligent as you would consider to be “tremendous?” Because in a voluntary association the only possible pressures that I can think of would be (a) the threat of physical force or (b) social pressure. Since I don’t hear you claiming that Mormon Bisphops and Stake Presidents physically threatened the members, you must be referring to social pressure.
What social organization doesn’t have social pressure? Do you think that GLAD doesn’t have social pressure? How about a humanities department in any of one our major universities - any social pressure there?
But of course, you probably feel that Mormons are different because their pressure is so, so very tremendous. Which reveals you to be no more imaginative (nor as likely to succeed in your opposition) as the critics of Brigham Young in the mid to late 1800s, who all took their turns in righteous condemnation of those horrible Mormon leaders and how they wielded their horrible, tremendous social pressure.
16 September 2010 | Chino Blanco Said:
Brigham Young’s critics failed?
16 September 2010 | Sideon Said:
Great blog, analysis, and commentary.
“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” - Marbury v. Madison.
Three hundred million people could vote to say marriage can only happen between white, Mormon, opposite-sexed, Americans of national origin… and still be wrong and overturned. If rights were left to popular vote, we’d still have slavery, women would be property, and alcohol would be illegal.
For the commenter that threw out the “liberal” comment: you’d have been first in line to crucify Jesus, one of the most famous liberals, right?
16 September 2010 | Latter-day Guy Said:
Oh, Quayle… It sounds like you need a hug.
You are setting up a false dichotomy here. In short, I do not believe that the leadership of the Church is infallible (see any number of statements by Brigham Young on issues like race or the Adam-God doctrine). On this issue in particular, I believe that they are wrong, that they have been wrong repeatedly (read “To the One,” to see a past LDS position on the cause of homosexuality and the prophecy that it would be “routinely” curable), and that this has resulted in bloodshed. For myself, I worry some of that may be on my hands too. After a young man I knew committed suicide, I have wondered if there was anything I said (or didn’t say) that contributed to his choice. Did I laugh at a joke I ought to have condemned? I worry that our defense of the idea of “family” has caused major damage to actual members of our own families.
I make the claim based on simple observation of a demographic trend. Younger people tend to be more accepting of homosexuals, and less opposed to the idea of gay marriage. In the time between Prop 22 and Prop 8, the margin narrowed substantially; I can see no reason that it should suddenly reverse. Perhaps, before that happens, millions of people around the globe will disappear, and then Jesus will come back in time to explode all the Muslims, Jews, and other non-evangelical Christians like over-stuffed sausages in an orgy of righteous bloodshed (don’t you just love Left Behind!) but I’m not planning on it.
While I feel no “competition” with Church leadership, I do think we sometimes forget our history:
“And none are required to tamely and blindly submit to a man because he has a portion of the priesthood… [S]uch obedience as this is worse than folly to us; it is slavery in the extreme; and the man who would thus willingly degrade himself should not claim a rank among intelligent beings, until he turns from his folly. A man of God… would despise the idea.” (Millennial Star, vol.14 #38, pp. 593-95)
“I am more afraid that this people [will] settle down in a state of blind self-security, trusting their eternal destiny in the hands of their leaders with a reckless confidence that in itself would thwart the purposes of God in their salvation, and weaken the influence they could give to their leaders…” (JD 9:150)
“How easy it would be for your leaders to lead you to destruction, unless you actually know the mind and will of the spirit yourselves.” (JD 4:368)
We are never at liberty to abdicate the responsibility of agency and careful thought and prayer. Many LDS Californians of my acquaintance have admitted (either verbally or in writing) their discomfort and distress at their involvement in Prop 8, several suggesting that they would have opposed it, knowing what they know now. That so many acted contrary to their better judgment is a legitimate cause for concern.
It’s a little ironic that you could write the preceding, and simultaneously accuse me of lacking imagination.
Reducing the influence of the Church to “social pressure” comparable to that of a club or a university department is disingenuous in the extreme. Clubs and college departments do not mediate your experience with divinity. They do not significantly shape or define your family relationships. Those who voted for Prop 8 against their better judgment didn’t do so out of fear that they would miss a few potlucks every year. They did it in order to hold onto their temple recommends, and to keep their family members with them in the hereafter. Do you think that Californian Saints are just blowing smoke when they talk about the deep rifts and divisions that remain in their wards? Was Elder Holland’s call for “healing [to] begin” just a PR move?
True, the SLTrib published the following statement: “Latter-day Saints are free to disagree with their church on the issue without facing any sanction, said L. Whitney Clayton of the LDS Quorum of the Seventy. ‘We love them and bear them no ill will,’” BUT only at the end of OCTOBER! By that time, the campaign had been in full swing for quite a while. Given (as I previously mentioned) the tenor of in-church discussion of the proposition, particularly how it was frequently tied to questions of salvation, attempting to downplay the Church’s influence by using the label “social” smacks either of a serious inability to comprehend, or a deliberate attempt at distortion.
Hating the Church would make this easy, Quayle. It’s loving it that makes it painful.
17 September 2010 | Athena Said:
Elder Clayton’s comments never reached our CA ward, where, indeed, despite Elder Holland’s plea for healing, the rifts remain. It is very painful.
18 September 2010 | mikenola Said:
the entertaining part of the arguments put up by Cooper and ProtectMarriage.com is that they are fighting for the children.
If that were really the case then what they would be fighting to do is remove all the benefits that straight people get just for being married and having that money go towards those people who actually HAVE children no matter the marital state.
Their case is not and never was about the children, it is about enshrining bigotry and their “religous” point of view into the law. Those people actively desire to control what everyone else in this country believes, and not just on this issue.
Cooper and the haters behind Prop 8 will do absolutely anything to make people frightened, which only causes their churches coffers and standing rise because that is the only way to MAKE people join the church
19 September 2010 | TomTallis Said:
I doubt this will ever get to SCOTUS. So far as I can tell no one has mentioned the one thing that separates California from the other states that ban same sex marriage. We have 18,000 legally married same-sex couples (my husband and I are one of them) and multiples of thousands more IDENTICALLY SITUATED same-sex couples who are not permitted to marry. That is a clear violation of the 14th Amendment.
Then there is the standing issue. It’s very unlikely that the appellants have standing to pursue the appeal and it’s likely that the Ninth Circuit will throw out the appeal, and that would likely be upheld on an en banc appeal.
The next appeal of the denial of standing would go to SCOTUS. Now SCOTUS doesn’t want to touch this case with a 1,000 foot pole. It’s a constitutional and political hot potato (and after Bush v. Gore, we know just HOW political the members of SCOTUS are). If they refuse cert. then it’s over, Prop 8 is gone and the Judge Walker’s ruling only applies to California.
It’s also possible that, should the appellants be found to have standing that the Ninth Circuit will find on the narrow 14th Amendment grounds outlined in the first paragraph, above, which would, again, limit the damage to California. If that happens SCOTUS likely would deny cert because there’s no federal question.
In any event, I really doubt that SCOTUS will rule on the issue of same-sex marriage using the opening provided by this case. They will wait until there’s a conflict between two different Circuit Courts of Appeal and then take up the matter.
20 September 2010 | Wagon Master Said:
It is very interesting that most of those posters here that favor Prop8 fall back on the alledged immorality of same sex relationships. In doing so they bring to the arguement a religious perspective which in not defenseable in a court of law. Why? Rather simple, the 1st Amendment has two clauses in it that are called the Establishment Clause and the Free Exercise Clause. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” In the light of these two clauses it is rather plain that everyone is entitled by these two clauses to worship as they so choose to worship. At the same time these two clauses also prohibit any single person, group or coalition of groups to interefer with the process of another person, group or coalition of groups right to worship as they see fit.
When one group of citizens becomes a majority and vote on something, it must pass muster of its constitutionality. Prop8 does not pass such muster in that it imposes the religious dogma, doctrine and beleifs of one goalition of groups upon the rest of socieity.
Second, the 14th Amendment to the US Constitution requires that all laws provide for equal treatment of all citizens. Rather simply here too. In the State of California the Supreme Court of California stated in Perez v Sharp 1949 that all persons (consenting adults) in the State of California had the basic civil right to marry “whom so ever they choose to marry”. They made it very and it was reiterrated a three or four times in the decision. 28 years later the SCOTUS stated exactly the same thing in Loving v Virginia 1967. Going even further than CASC did they stated very strongly that “civil marriage” is a basic civil right of all consenting adults.
Today we have a series of decisions by the CASC that to the stance that Perez v Sharp was correct when applied to same sex marriage and one that said Califorians could modify their Constitution. The first two threw out the laws that were unconstitutional which limited marriage to a man and a woman. The third said yes Californians can amend their constitution even if it puts something that is a violation of Federal Constitutional law. OPPS!!!
The State of California, and for that matter all the states, Constitutions must pass Federal muster as the the Constitutionality of their Constitutions. Prop8 was taken to Federal Court and Justice Walker concurred with the CASC in their assesment that to deny same sex couples the “civil right of marriage” was unconstitutional.
So where are we looking? Lets go back to the founders of our Country for this one. James Madison stated the following:
“In our Government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be leveled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper.
But I confess that I do conceive that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body.
The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies,
namely, that which possesses the highest prerogative of power.
But it is not found in either the executive or legislative departments of Government,
but in the body of the people, operating by the majority against the minority.”
This single statement is the founding principle behind the 14th Amendment. The majority cannot act against the minority. It is that protection of basic civil rights that is being put to the test right now.
21 September 2010 | Azz Said:
Matt, I was lucky enough to attend some of the trial, and the argument you mention did come up — the fact that some same-sex couples do adopt, or have children from at least one of the members — and that point made the proponents very nervous and defensive.
First there was evidence brought in that mentioned that children whose parents had undergone a divorce, or children who had been adopted, did less well on the whole than children remaining with their biological parents. However, this evidence fell over when it came out that all of this research had classed children who had been adopted from birth in with children who were with their genetic mother and father — the difference that the research had been measuring was not due to genetic relationship, it was due to having been with the same parents all of the child’s life. One of the proponents’ witnesses was only present via pre-taped questioning — this witness’s entire argument about biological parents being the best was based on the research which showed it, and in the face of the fact that a genetic connection was considered irrelevant in this research, the witness retracted his previous statements. Interestingly enough, the proponents did not use the material from this witness, but the prosecution sure did.
Similarly, I believe it may have shown that children born to a couple who had been married to other people before — any given member of the couple had had a previous divorce, but they were now married to a new person — showed no ill effects from the fact that their parents were not married to the original partner, suggesting that it is the stressful process of having one’s parents initiate a divorce while a child is growing that causes ill effects in children.
(I would really like also to have seen research on how children whose parents were in miserable marriages that were staying together for the sake of the children did, over time, compared to children whose parents were miserable together and divorced, but as I did not see this come up during the hearing, I suspect that this research either does not exist, or is terribly obscure. Of particular interest would be research on the effects on children of a gay or lesbian parent in an opposite-sex marriage, versus children of a gay or lesbian parent who was divorced from a previous opposite-sex spouse. I only personally know one woman who is divorced from a gay husband, and while they are now again good friends, their marriage was miserable; I suspect this would bear out in research.)
I believe the proponents briefly tried to argue that gays and lesbians were dangerous to children, but this was swiftly laughed out by actual evidence. The proponents next argued that parents who had planned to have children were the best parents of all, and because of the virtual impossibility of accidental parenthood in a monogamous same-sex relationship, all children of monogamous same-sex partners would either be from a prior relationship or deliberate. Therefore, same-sex couples did not really neeeed marriage, because they were already going to be good parents; it was the unfortunate unwed mothers who needed marriage — and yes, yes, having their parents being married might well help the children of same-sex couples, but the state doesn’t need to worry about the children of same-sex couples, the children needs to worry about the children of poor unwed mothers, who are deprived of both two loving parents, and also of married parents! Though they never quite managed to focus on how allowing same-sex parents to marry would deprive children of unmarried opposite-sex parents of anything. They didn’t go so far as to suggest that young gay men were having unprotected sex with straight women to see if they were really gay or not, getting them pregnant, and then running off to get married to other men, but that’s basically the only scenario I can imagine where same-sex marriage would directly affect the children of a heterosexual parent.