Now We Wait for the Ruling

If you’d like a quick primer on what the Supreme Court will be deciding in the next few months, this New York Times chart on how the justices could rule on Prop 8 and DOMA is clear and helpful.

Over at First Things, Glenn Stanton comments on some good questions the Justices asked. I tracked down one of the quotes he cited from Justice Sotomayor to get more of the context:

SOTOMAYOR: Mr. Olson, the bottom line that you're being asked—and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what state restrictions could ever exist? Meaning, what state restrictions with respect to the number of people…the incest laws, the mother and child…I can accept that the state has probably an overbearing interest on protecting a child until they're of age to marry, but what's left?

OLSON: Well, you've said in the cases decided by this court that the polygamy issue, multiple marriages, raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you—if a state prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.

The first mistake Olson makes here is that he thinks people are being denied marriage because of their sexual orientation (i.e., “their status”). This has never happened. There is no test whatsoever for sexual orientation when a person applies for a marriage license. There is no class of people being told they’re not eligible for marriage. In fact, the exclusion of same-sex couples (that’s same-sex couples, not homosexual citizens) from marriage isn’t about prohibiting something on the basis of bad conduct or the status of a group, it’s about the definition of marriage.

As Justice Roberts pointed out:

When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.

If marriage is a particular thing, then everyone has a right to take part in that institution as it stands, regardless of their personal characteristics. But to be part of the institution, they must be part of the institution. They don’t have a right to change that institution into something different simply because they don’t want to be part of it the way it is.

Imagine a public park builds a tennis court so that people can come to play tennis. Nobody should be denied the right to play tennis games there. Period. It’s a public park, open to all. One day, a group of basketball players comes to the park, wanting to play a game, but they find they can’t play basketball on a tennis court. They immediately go to City Hall to complain: “Everyone has the right to competitive exercise with a ball on that court! We’re being denied our rights based on our status as basketball players!” Can you see the problem? The fact that they don’t want to play tennis doesn’t give them the right to demand that the government build a different court at the park. Their right isn’t to “competitive exercise with a ball” (tennis shares that in common with basketball, but it can’t be reduced to that), their right is to play tennis on that court, just like everybody else.

Please don’t take that illustration farther than it’s intended to go. I’m merely trying to show that rights aren’t being denied simply because a person (or group of people) doesn’t want to take part in something. The park promises the same thing to all. It doesn’t promise “competitive exercise with a ball,” it promises tennis. And tennis excludes basketball—not out of prejudice, but by nature. One could certainly argue over whether the park ought to change that court into something different, but as things stand, no rights are being violated. Neither justice nor equality demands that the park change its court to accommodate the desires of the basketball players to play a different game in that space. The same is true for marriage.

Secondly, even if it were legitimate for Olson to make the argument that homosexuals are being denied the right to marry “based upon their status,” I don’t see why one couldn’t equally say that polygamists are being denied their rights based upon their status as people who prefer to have many marriages. Isn’t that class of people being denied their right to define marriage for themselves, if Olson’s way of looking at this is correct?

Another problem: Olson says polygamy is an “entirely different thing” from same-sex marriage because it “raises questions” about legal, social, and moral harms, and that’s what prevents it from being a right. But in making this distinction, he’s merely assuming what he needs to prove. Those defending traditional marriage also have arguments explaining the harm that will be caused by removing the core principle of sexual complementarity from the definition of marriage (including the legal difficulties resulting from surrogacy, sperm and egg donors, etc.—difficulties that will inevitably result because a third person outside the family must always be involved in the creation of a child for same-sex parents).

If Olson is correct that the harm that would result to society from changing the definition of marriage is grounds for not changing the definition to accommodate a particular group’s desires, then same-sex marriage can be disallowed if it causes harm.

But if Olson is correct that same-sex marriage is not merely a desire, but actually a right that can’t be disallowed, even if it raises questions of harm, then Sotomayor’s question stands: If defining marriage for yourself is a fundamental right, what state restrictions could ever exist?

Olson can’t have it both ways.

You can read more quotes from the proceedings in Stanton's article, “Supreme Court Finally Asks the Tough Questions on Same-Sex Marriage,” and on the Huffington Post.

Comments

[Robby Hall]

Great post Amy.

[John M]

Thanks for the post. We should all be praying that the further erosion of our society gets curtailed. Unfortunately, the way things are going, it doesn't seem likely.

[John Moore]

You wrote, "There is no test whatsoever for sexual orientation when a person applies for a marriage license."

Are you really suggesting gay people should marry members of the opposite sex? Would you even want that? Kind of weird.

How about an analogy: We have freedom of religion in this country as long as people are Christian. When people go to get baptized, there's no test of whether they really believe in Christ.

People shouldn't try to change the definition of religion by making it include non-Christian faiths. Is that how you're thinking?

[Dwight]

John,

Please look at the two analogies again.

Religion is not defined in this country (or any other that I can think of) by membership in Christianity.

You should revisit your argument.

[John Moore]

You haven't addressed my analogy. Here's how it works:

Marriage = heterosexual
Religion = Christian

We agree that the second equality is false, but you've got to argue that the two equalities are fundamentally different. That's probably how you want to proceed in your argument.

[WisdomLover]

John-

I think you really wanted to put it this way:

Marriage:Religion

heterosexual:Christian.

Let's see how those replacements go.

The claim about marriage goes like this:

Heterosexuals and non-heterosexuals alike have the same right to enter into a marriage with a person of the opposite sex.

Replacing the terms, this becomes

Christians and non-Christians alike have the same right to enter into a religion with a person of the opposite sex.

This actually doesn't make much sense, and bears no resemblance to the principle about religion that you though, probably with justice, was so incorrect:

Christians and non-Christians alike have the same right to be baptized as Christians (and only as Christians)

.

So you've got no analogy. Unless by "analogy" you just mean that in both cases you are talking about people and rights and things.

[John Moore]

I'm amazed that you guys can't seem to understand a simple analogy. You're not dumb - it's because you purposely refuse to think alternative thoughts. And really, I'm just asking a question:

Do you think religion must be Christian in the same way as marriage must be heterosexual?

If you do, that would be consistent. If you don't, then how do you avoid being inconsistent?

Putting it another way: Do you think it's OK for a person to be baptized as a Christian when he or she is secretly an atheist? If not, then why do you apparently think it's OK for a homosexual person to marry someone of the opposite sex?

There are good rational answers to this question, but you guys don't even seem to know what I'm asking.

[dave]

John,

what if one is bi-sexual and not only wants to marry his boyfriend, but his girlfriend too. Where do you draw the line?

[WisdomLover]

John-

We avoid being inconsistent because you have no analogy as shown above.

[Sam]

John, I think I understand you're analogy. You're saying that just as...

The freedom of religion is the freedom to join any kind of religion you want or no religion at all.

So also...

The freedom to marry is the freedom to enter any kind of marriage you want, or no marriage at all.

If we limit the freedom to marry to the freedom to only enter one kind of marriage, namely heterosexual, then that would be analogous to limiting the freedom of religion to only being able to join the Christian religion.

Am I right?

Dwight did answer you. He showed that your analogy doesn't work because there's no analogy between the definitions of "religion" and "marriage."

Religion is a certain kind of thing for which there are many examples: Islam, Christianity, Judaism, Wicca, Buddhism, etc.

Marriage is a certain kind of thing for which there is only one example: a union between a man and a woman.

So, the freedom of religion would be the freedom to join any of these religions or none at all. And the freedom of marriage would be the freedom to become part of a union between a man and a woman. It would not include the freedom to become part of a union between a man and a man or a woman and a woman.

If you want to make your analogy between religion and marriage, then to be consistent, you're going to have to open marriage to any sort of coupling people want to come up with, just as religion is open to any sort of belief or practice people can come up with. If the "freedom of marriage" is to be the freedom to enter any kind of union you want, then you're going to have to allow polygamy and incest. The only way around that is to give "marriage" a strict definition that excludes polygamy and incest but does not exclude homosexuality.

I'm not sure I understand WL's response to you.

I don't think Amy is saying that gay people should marry people of the opposite gender. All she is saying is that they have that right. Whether they have the desire or not is irrelevant. In the same way, the government gives people the right to join Christianity if they want. Whether they want to or not is irrelevant.

You're probably right that people should not join Christianity if they don't really believe in it. And you're probably right that gay people shouldn't marry members of the opposite sex if they don't want to. But the government doesn't care what people's motivations are in joining religions or marriages. The law doesn't care whether you love the person you marry or not.

Another disanalogy that hasn't been pointed out already is that the government regulates marriage, but it doesn't regulate religion. Joining a legal marriage requires government involvement. They have to issue a marriage license. But joining a religion does not require government involvement at all. So the "freedoms" associated with each are not analogous. One freedom (marriage) requires the government to give you something (i.e. a license, benefits, etc). The other freedom (religion) only requires that the government get out of your way.

As far as "getting out of your way," there is ALREADY freedom of marriage for gay couples. Gay couples are allowed to have weddings, to live together, to call each other "husband and husband," etc. So gay couples already have freedom of marriage in the same sense as people have freedom of religion. What they are asking for is something more--public recognition, a license, a legal stamp of approval, benefits, etc. People who exercise their freedom of religion by joining the religion of their choice are not asking for any of that. In fact, most of us would rather not have it. We don't want the government involved in religion the way it is involved in marriage.

[WisdomLover]

"I'm not sure I understand WL's response to you."

One thing is an analog of another when there is an isomorphism between them. The old black vinyl records were analog recordings because the shape of the ripples in the grooves were the same as the shape of the sound waves as you'd see them in the oscilloscope.

In a logical argument by analogy, you show isomorphism between to principles through some scheme of term-for-term replacement that transforms the one principle to the other.

If you have no isomorphism, you have no analogy and no argument.

My response to John is basically that no such replacement will work for John's point...so there is no analogy. I stated the principle we do have for marriage, carried out the replacements that John himself suggested and what I got was gibberish.

So John has no analogy.

[John Moore]

Thanks, Sam. I understand much better now. Just one other point: The government actually does regulate religion to a certain extent, because you're not allowed to do human sacrifice anymore, right? The U.S. government condemns certain religious practices in other countries, such as female genital mutilation. And Mormon polygamy was a religious tenet, but the government still outlawed it. Despite these examples, though, I agree that the government should not be involved in religion except in very severe cases.

[Louis Kuhelj]

John

"The government actually does regulate religion to a certain extent, because you're not allowed to do human sacrifice anymore, right?"

Not exactly right. The government does in fact allow human sacrifices to the great god of personal convenience, through abortion.

"The U.S. government condemns certain religious practices in other countries, such as female genital mutilation."

True enough, but condemnation is not regulation.

" And Mormon polygamy was a religious tenet, but the government still outlawed it."

Since the purpose of marriage as an institution does not require religion it is possible to compartmentalize marriage as a separate issue in any policy making decisions, thus making policy regarding marriage without touching on the issue of religion. It is those religions holding to polygamy that are actually stepping over the bounds, not the government. I should point out that those bounds are in fact biologically established and sociologically grounded. Neither of those those two require religion as a foundation to start with.

[Brad B]

"Since the purpose of marriage as an institution does not require religion it is possible to compartmentalize marriage as a separate issue in any policy making decisions, thus making policy regarding marriage without touching on the issue of religion."

I think you make an important point Louis, and in fact the point is also biblically supportable. God's mininster for good, aka the civil magistrate does do well to reward good behavior and punish bad behavior. These good/bad judgements are in relation to the overall health of the civilization/culture.

Marraige by definition is 1 man + 1 woman, anything else is not marraige. If the civil authority is faithfully carrying out its duty to reward good behavior, it will often provide incentives for culturally beneficial behavior which marraige has shown to do since history has been recorded.

The American political machine in its blind and foolish acts of legislative and judicial activism pushing unhealthy inclusivisim has been unfaithful in its God given duty to reward good behavior and punish bad behavior for the good of society in general. Unless and until unions of other couples can provide at a minimum multiple decades of steady proof of beneficial results to society in general, government is bound to disuade the behavior if not prohibit it outright. It is not about one particular couple or one particular individual not being treated as another, the government is supposed to care about the health of society in general, not particular individuals when it comes their behavior. If 1 man 1 woman unions [aka marraige] weren't beneficial to society, government would/should have no interest in promoting it as a behavior.

[Brad B]

I also would add that government did err when "no fault divorce" was allowed to become law, since it has proven to have damaged the culture in its application and harmed marraige, an institution of value to culture in general. An institution like marraige that traditionally is the backbone of support of a healthy community/culture should be protected, nurtured, and promoted. Marraige has proven to provide stability and sustainability, etc.. to the long term success of a society unlike any other human behavoir.

[Brad B]

"Marraige has proven to provide stability and sustainability, etc.. to the long term success of a society unlike any other human behavoir"

This sentence is awkward...should have proofread. I might better have said "unmatched by any other human behavior".

[Sage S.]

"The government actually does regulate religion to a certain extent, because you're not allowed to do human sacrifice anymore, right?"

The government outlawing "human sacrifice" is not a regulation on religion! 1st degree murder is a capital crime regardless of the killer's motives. Outlawing polygamy sets parameters for society generally, and Mormon / Muslim marital preferences are collateral damage.

These examples regulate behavior, not religion. One regulation on religious free speech is the tax code requiring churches to forfeit their tax exempt status when they support candidates or legislation from the pulpit. Another direct regulation would be prohibiting pastors from declaring homosexuality is a sin.

In essence direct regulation of religion is strictly forbidden by the 1st Amendment, and laws applying generally to society are not religious regulations, even when they limit activities upheld by certain religious groups.

[Dwight]

I would also like to reiterate a very important point mentioned in passing above:

It is not the government's job (at least in the USA) to regulate desire. It is entirely inappropriate for the government to seek to protect or prohibit individual desire - only to protect or prohibit practice and action.

The desire to marry, or not marry, or to "marry" whomever or whatever you like is not the government's business to protect, and yet this is exactly what is being proposed. It is legislative protection of desire. Not unlike other attempts by government to legislatively control thought through making some crimes "hate crimes" rather than just justly addressing criminal action and behavior.