Gay Marriage in California

I didn't realize this was even on the agenda, but it's fairly big news:

Divided California Supreme Court legalizes same-sex marriage
By Howard Mintz and Denis Theriault
Mercury News
Article Last Updated: 05/15/2008 09:31:19 PM MDT

...In a ruling that is certain to inflame the social, political and moral debate over gay marriage, a divided state Supreme Court dominated by Republican appointees on Thursday struck down California laws that restrict marriage to heterosexual couples. The 4-3 ruling, written by Chief Justice Ronald George, found that it is unconstitutional to deprive gays and lesbians of the equal right to walk down the aisle with a government-issued marriage license in hand.

So far, God has not racked the state with earthquakes or struck down homosexuals with lightening. Neither have heterosexuals swarmed the divorce courts or abandoned their children. The American family survives.

I do wonder, though, whether it's necessary to move beyond "domestic partnership" to "marriage." The article notes, "State lawyers have argued that California's strong domestic-partnership laws essentially already provide equal benefits to same-sex couples." It's done now, though; I'll be interested to see if the ruling lasts.

I'll also be interested to see how the Republicans respond to this. They can energize their evangelical base, but at the cost of younger independents. I don't think it'll make any difference in the race for the White House -- the Democrats seem hell-bent on running losers -- but at the broader level and in the longer term, the Dems seem ready to continue to take advantage of GOP infighting between the evangelicals and everyone else.

Diana Hsieh has a nice explanation of why marriage should be extended to homosexual couples but not beyond that. Last year I wrote a lengthier article covering similar points.

Knight: Is Homosexuality Genetic?

Recently I discussed Matt Barber's bigotry toward homosexuals, based on two of Barber's articles published by Townhall.com. Today I turn my attention to a more thoughtful article by Robert Knight, again from Townhall.com.

Knight never explicitly states his opinion on homosexuality, though in his article he defends "people who believe homosexuality is wrong." Knight "is director of the Culture & Media Institute," an overtly religious group, which, in its "Best of the Web" section, includes a link to the article, "Eminent Psychiatrist Says Homosexuality a Curable Disorder." So we have a pretty good indication of where Knight is coming from. Yet we must evaluate Knight's claims by their own merits.

In his article, Knight reviews a Good Morning America segment that promotes the idea that homosexuality is a genetic trait. Knight claims that establishing such a claim "is a central strategy of homosexual activists... If sexual behavior is hard-wired like race, then moral considerations can be swept aside, homosexuality declared a 'civil right' and governments can move against people who believe homosexuality is wrong."

Knight's comment contains two errors. First, even if homosexuality were established as a genetic trait, that in no way would justify governments using force "against people who believe homosexuality is wrong." People have a right to be wrong, and they have a right to free speech.

Second, even if homosexuality were established as a genetic trait, that would not prove definitively that it is either morally right or wrong. It would still be possible to argue that a genetic predisposition should not be acted upon. The comparison to race fails, because people cannot choose to change the color of their skin, but they can choose whether and with whom to have sex. To take a different example, some people argue that people are genetically hard-wired to accept religious beliefs. I don't think that's true, but, if it were, I would still argue that we should use our reason to overcome such predispositions. In another example, according to a review of Matt Ridley's The Red Qeen, Riddley "argues that men are polygamous" by genetic predisposition. Even if that were the case, I would not waver in my support of monogamy.

I suspect that homosexuality usually results from a confluence of genetics, environmental factors, and conscious choice. Yet, regardless of which of these three factors is most at play in any given case, I hold that homosexuality can be a healthy, moral path that leads to quality romance. Can homosexual relationships be unhealthy? Yes -- just as heterosexual ones can.

Knight suggests that genetics does not explain homosexuality. He seems open, though, to a genetic predisposition acting in concert with environmental factors:

Dr. Jeffrey Satinover, a psychiatrist with degrees from MIT, the University of Texas and Harvard, has written extensively about problems with genetic research on homosexuality, and also about professional organizations' refusal to consider opposing evidence. In his book Homosexuality and the Politics of Truth, Satinover says genetic factors might contribute "not to homosexuality per se, but rather to some other trait that makes the homosexual 'option' more readily available than to those who lack this genetic trait."

He notes that most basketball players tend to be tall, but that this does not mean that they have a "basketball gene." It only means that they might gravitate toward that sport because of their height. Similarly, a young boy might be more sensitive than other boys, be less athletic, be rejected by his father and peers, and hence be starved for male approval. An early sexual experience could then take him down a path he might not necessarily have taken.

Satinover notes that cultures worldwide historically have varied greatly in terms of homosexual practice and that this indicates that "environmental" factors are at work.

Given that such cultures have existed where the incidence of homosexuality is far greater than at present, the incidence of homosexuality is clearly influenced by mores.

Of course, the incidence of admitted homosexuality -- and of underground homosexual activity -- is also influenced by mores as well as by laws. For example, in Iran, where the government kills homosexuals, people are unlikely to advertise the practice.

Whether homosexuality is caused by genes, environment, choice, or a combination of the three, homosexuals deserve legal protection of their rights and safety. On the cultural level, homosexuals also deserve not to be condemned merely because of their sexual orientation.

Back to Barber

A few days ago, I discussed Matt Barber's bigotry toward homosexuals. Today I want to reply to another article by Barber, "'Gay' Sex Kills." He writes:

Can you imagine officials at a middle school, junior high or high school setting aside a day to promote "tolerance" for heavy smoking and drinking among children? How about a day where teachers encourage kids to "embrace who they are," pick up that crack pipe and give it a stiff toke? ...

That's exactly what the homosexual activist "Day of Silence" is all about -- advancing, through clever, feel-good propaganda, full acceptance among children of the homosexual lifestyle.

Barber's comparison of homosexuality to smoking and drinking is ridiculous. People can choose whether to smoke or drink; those things are not inherent in one's character. Homosexuality, by contrast, is a deeply ingrained characteristic. I don't know whether homosexuality has a genetic component, but whether or not it does, it is deeply embedded in personality. (That said, I favor market education in which, I suspect, most schools would eschew political activism in favor of learning.)

One can form a psychological addiction to smoking or drinking, but such addictions can be formed and broken. Homosexuality is entirely dissimilar. Sexual orientation precedes puberty; it is latent from a very young age. Of course, a homosexual can choose not to practice homosexuality, just as a heterosexual can choose to practice gay sex or to become celibate. (At some point we might distinguish between a homosexual orientation and homosexual practice; for example, prison rape hardly indicates an orientation.) While it is obviously possible to choose to have sex with people of different genders, homosexuality as an orientation seems to be unalterable or very close to it.

Moreover, there's nothing inherently wrong with homosexuality. Insofar as homosexuality can lead to loving relationships and healthy sex, it can be a good thing, just as heterosexuality can be a good thing.

Barber notes that male homosexuality is associated with AIDS:

By recently admitting that "HIV is a gay disease," Matt Foreman, outgoing Executive Director of the National Gay and Lesbian Task Force, acknowledged what the medical community has known for decades: the homosexual lifestyle is extremely high-risk and often leads to disease and even death.

In fact, multiple studies have established that homosexual conduct, especially among males, is considerably more hazardous to one's health than a lifetime of chain smoking.

To the consternation of "gay" activist flat-earthers and homosexual AIDS holocaust deniers everywhere, one such study -- conducted by pro-"gay" researchers in Canada -- was published in the International Journal of Epidemiology (IJE) in 1997.

While the medical consensus is that smoking knocks from two to 10 years off an individual’s life expectancy, the IJE study found that homosexual conduct shortens the lifespan of "gays" by an astounding "8 to 20 years" -- more than twice that of smoking.

"[U]nder even the most liberal assumptions," concluded the study, "gay and bisexual men in this urban centre are now experiencing a life expectancy similar to that experienced by all men in Canada in the year 1871. ... [L]ife expectancy at age 20 years for gay and bisexual men is 8 to 20 years less than for all men."

This morose reality makes a strong case for a fitting redefinition of so-called "homophobia," that being "Homophobia: The rational fear that 'gay sex' will kill you!"

No one doubts that male gay sex is associated with a higher incidence of AIDS. But this does not establish Barber's point. Female gay sex is not so associated; does Barber therefore approve of female but not male homosexuality? Furthermore, unsafe heterosexual relations with multiple partners is also associated with a higher incidence of various diseases, while monogamous homosexual relations are not.

Barber's comparison of homosexuality to chain smoking fails. Chain smoking harms the health of anyone who tries it, though the magnitude of the harm depends a great deal upon genetics and luck. Male homosexuality, on the other hand, is risky only with partners who might have AIDS. Two healthy men who enter a monogamous relationship have no more chance of getting AIDS than Barber does.

Barber the Bigot

Matt Barber is the policy director for cultural issues with Concerned Women for America, a group "helping our members across the country bring Biblical principles into all levels of public policy." Barber thinks that gay people deserve the "due penalty for their perversion," including death.

Writing for the conservative Townhall, Barber writes:

[T]here are those who... with haughty hearts and sardonic “pride,” willfully choose sin over Christ; death over life.

It's a self-evident reality which is bolstered by medical science, but Scripture additionally reminds us in both the Old and New Testaments that those who choose to engage in homosexual conduct do so at their own peril.

Consider Romans 1:26-27...

It's sad when people yield to disordered sexual temptations that can literally kill them spiritually, emotionally and physically. Nobody with any compassion enjoys watching others "[receive] in themselves the due penalty for their perversion." But a corollary to free will is living (or dying) with the choices we've made.

Barber here makes three basic errors. First, he thinks that we should guide our lives according to bigoted comments in an ancient book of mythology. Second, he assumes that homosexuality is sinful temptation, rather than a fundamental orientation of a person developed at least from childhood. Third, he conflates risky sexual activity with homosexuality.

I accept at face value Barber's claims that male homosexuals (he conveniently forgets about female homosexuals for this point) have higher incidences of various diseases. But the problem is risky sexual behavior with multiple partners (coupled with the greater chance of sharing blood via anal sex), not homosexuality per se.

Heterosexuals who engage in risky sex with multiple partners have a higher incidence of various diseases than do monogamous homosexuals.

Barber moves to a discussion of blood donations. He rightly criticizes "militant homosexual activists" in South Africa who "have been 'protesting' by deliberately and surreptitiously violating that nation's blood ban" of male homosexual donations (again taking his claim at face value).

However, Barber is wrong to paint all homosexuals with the same brush. The fact that a Christian has murdered a practitioner of abortion does not make all Christians murderers.

I'm all for protecting the blood supply; I certainly don't want to get HIV should I need a transfusion. But a ban on male homosexual donations does not get to the root of the problem, for it prohibits some low-risk people from donating blood, and it allows some high-risk people to donate (though I assume that high-risk heterosexuals are also screened out). The more effective screening question would be: "Have you had anal sex with more than one partner within the last X years?" (A follow-up question could ask about the partner.)

But such a question, though objectively more relevant, doesn't mention homosexuality, and so it does not fit Barber's bigoted agenda.

Barber continues:

...Oklahoma State Rep. Sally Kern has been viciously attacked and ruthlessly maligned, even receiving death threats, for saying publicly that "the homosexual agenda is destroying the nation." She even went so far as to say that, in her estimation, homosexual behaviors and "gay" activism pose a greater threat than terrorism.

Reasonable people can debate that opinion...

Reasonable people can endorse only one side of that opinion. Anyone who thinks that homosexuals pose a greater threat than Islamic terrorists is suffering from self-induced insanity.

But I do have a couple of questions for Barber, given his faith-based approach to homosexuality. Do you believe that any literature or speech pertaining to homosexuality (including, but not limited to, pornography) should be censored? Do you believe that consenting adults should be subjected to any criminal penalties for practicing homosexuality?

In fact, those would be good questions to ask anyone who claims that homosexuality is prohibited by the Bible.

Iran Murders Homosexual

Back in September, when the United States government shamefully permitted Iran's president Mahmoud Ahmadinejad -- in fact a primary and aggressive enemy of the United States -- to enter the United States, Ahmadinejad claimed that there are no homosexuals in Iran. He said, "In Iran we don't have homosexuals like in your country... In Iran we do not have this phenomenon. I don't know who's told you that we have this."

There's a good reason why Iranians don't admit to homosexuality: Iran murders homosexuals as a matter of official policy.

On March 9, the AP reported:

Mehdi Kazemi, 19, came to London to study English in 2005 but later discovered that his boyfriend had been arrested by the Iranian police, charged with sodomy and hanged.

Mr Kazemi was told by his father in Tehran that his boyfriend had been questioned about his sexual relationships before his execution in April 2006 and named him under interrogation.

Mr Kazemi claimed asylum in Britain, fearing for his life if he returned to Iran but his case was refused late last year. He fled Britain for the Netherlands, where he is now being detained.

The article notes that the fate of Kazemi is now in the hands of the Dutch courts. I find it astounding that Britain refused to offer Kazemi protection. Absent important relevant facts not revealed by the AP, Britain's decision was inexcusable. Hopefully Kazemi will find protection elsewhere. If the United States had sensible immigration policies, he would be offered a (voluntarily funded) plane ticket to America.

'Crime Against Nature'

In looking up the original story by WCNC about the pastor in North Carolina who allegedly tried to solicit an undercover male police officer for sex, I read, "Graff is charged with crimes against nature..."

Say what? "Crimes against nature?" Could such a thing actually exist in modern books of statutes?

I looked up the statutes for North Carolina. Sure enough:

SUBCHAPTER VII. OFFENSES AGAINST PUBLIC MORALITY AND DECENCY.
Article 26.
Offenses against Public Morality and Decency.
§ 14‑177. Crime against nature.
If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

You may read the entire Article 26 if you wish. It is a mixture of justified prohibitions rooted in objective law and and entirely non-objective, ambiguous, and even outright silly prohibitions. Statute 14-196(a)(1) offers another outstanding example of this latter category: "It shall be unlawful for any person [t]o use in telephonic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation." And I thought Colorado's statutes were pathetic.

Incidentally, the entire Article 27 is devoted to prostitution.

There is no such thing as a real "crime against nature." Apparently the legislators of North Carolina missed this fact, but nature possesses no consciousness, and thus cannot be offended. Of course, "nature" in this context is euphemism for "God," and the statute is rooted in religious bigotry against homosexuals.

When a Pastor Falls

Unlike some critics of religion, I do not gleefully rub my hands at news of another fallen Christian. Such news neither wipes away the good character of many Christians nor excuses the sins of some atheists. Nevertheless, I think there are a couple of sober lessons to be gleaned from the following story:

According to NBC affiliate WCNC in Charlotte, N.C., police arrested the senior pastor at St. Luke's Lutheran church in Dilworth after a sting at Park Road Park where they say Robert Graff tried to solicit an undercover male police officer for sex.

"He's a great man, he's a wonderful man. I'm shocked,” one church member told the station.

WCNC's report says the 58-year-old Graff is married and has been the pastor at St. Luke’s for the past four years.

Of course, these are only allegations at this point. Yet, in light of the problems of other Christian leaders such as Ted Haggard, Christians should bear in mind that it won't do to attribute every sin of every atheist to atheism while denying that any sin of any Christian has anything to do with Christianity. At least Christians should not overstate their claims that Christianity inspires universal moral virtue.

Neither a person's Christianity nor a person's atheism necessarily leads to wrong acts. Both Christians and atheists can lead good, moral lives or fall into misdeeds. However, I would argue that, in cases such as this, Christianity can sometimes play a negative role by encouraging repression. Homosexuals cannot be "cured" by prayer or indoctrination camps. Moreover, there is nothing morally wrong with homosexuality (though infidelity is wrong regardless of sexual orientation), so Christianity (at least of a particular variety) tends to inspire both bigotry toward homosexuals and self-loathing and/or repression among homosexuals who accept anti-homosexual doctrine. (I do not mean to suggest that every male who solicits a male prostitute is generally homosexual.)

Meanwhile, I think people of all ideological stripes can wish Graff and his wife well in trying to get their lives back on track.

Further Discussion of Gay Marriage

Here Ryan Puzycki and I continue our previous discussion regarding gay marriage and Colorado's Amendment 43, which defines "marriage" as between a man and woman. To review briefly, we both agree that gay couples should have the ability to contract as heterosexual couples do in romantic unions. However, while Puzycki believes that Amendment 43 should be overturned by the courts, I'm not so sure.

Following is Puzycki's reply of February 19:

Thanks for your response post.

In asserting that Amendment 43 should be overturned "[b]ased on the religious motivations," I was reiterating my own interpretation of the Amendment. As I understand it, it does not seem to have any secular foundation and seems to rise only from religious beliefs, but the language of the Amendment itself is not religious in nature. So, I agree that this would be difficult to overturn on the establishment clause. But, if the Amendment is interpreted to allow only for "marriages" with no provision for "domestic partnerships," then a very strong argument would still have to be invented to defend a possible secular foundation for why homosexual couples should not be afforded any partnership rights.

However, even if we consider the possible allowance for domestic partnerships, then we would have to explain the need to create "domestic partnerships" apart from "marriage." You have suggested as a "plausible argument" the potentiality of heterosexual marriages to result in children. Notwithstanding the facts you mentioned that homosexual couples can adopt and use artificial insemination, Diana Hsieh already made the valid point that procreation is not an acceptable basis for marriage. As for the historical nominalist argument, that is easily dismissed, as well. I have still heard no secular arguments that stand on their feet.

So, what justification does the government have for establishing a "marriage" for heterosexual couples and a "domestic partnership" for homosexual couples? Even if marriages and domestic partnerships afforded the same rights to couples of either sexual orientation, one must ask why it is necessary for the government to make a legal distinction between straights and gays. As I wrote in my earlier email, "separate" implies inequality--or why else make the distinction? The establishment of "domestic partnerships" would denigrate gays to a second-class status before the law, at least as far as marriage contracts are concerned. The concept of blind justice is meant to suggest that laws should be objective, but if the law instead sees a distinction between heterosexuals and homosexuals, it is not.

Before the law, all individuals must be afforded equal protection of their rights as stipulated in the 14th Amendment. It would therefore be unconstitutional to make any law that establishes separate legal status to individuals based on their sexual orientation. Before the law, sexual orientation is irrelevant. A murderer's sexual orientation is no more relevant to the crime committed than is a homebuyer's sexual orientation to a loan. The only questions the law can legitimately ask in regard to marriage are: are these two individuals of age and did they both consent?

While it seems obvious that Amendment 43 was motivated by religion, the Amendment itself makes no mention of God, so demonstrating the Amendment's intent would be better left to a sophisticated lawyer who could make a clear case based on the establishment clause. However, the Amendment is, clearly, a violation of the equal protection clause because it does not explicitly protect the rights of gays to contract in any form of "marriage" and, secondly, because the potential allowance it implies is inherently unequal and legally baseless.

On that basis, then, Colorado's courts should overturn the Amendment.

Our disagreement is not about Amendment 43 -- we both disapprove of it -- but whether it should be overturned by the courts based on the establishment and/or equal-protection clause. I think we also agree that the amendment more plausibly violates the equal-protection clause. However, I'm still going to argue that it should not be overturned even for that reason, though my argument is tentative.

In Colorado, by law the state government distributes a document commonly called the "blue book" that contains the language of ballot measures as well as summaries of arguments from proponents and opponents. The 2006 blue-book information about Amendment 43 pertains to this discussion:

Summary and Analysis

Definitions of marriage affecting Coloradans. Federal statutes define marriage as a legal union between one man and one woman for purposes of all federal laws relating to marital status. Colorado statutes define marriage as a legal union between one man and one woman for purposes of the state's laws relating to marital status.

For a marriage to be valid under Colorado statutes, it must be: (1) between a man and a woman; and (2) licensed, solemnized, and registered according to established procedures. In addition, Colorado recognizes common law marriage between a man and a woman who live together and hold themselves out publicly as husband and wife. Common law marriages are treated exactly the same as licensed marriages.

Legal effects of marriage in Colorado. The marriage relationship in Colorado provides spouses with a number of legal rights, responsibilities, and benefits, including:

* collecting benefits such as pensions, life insurance, and workers' compensation without being
designated as a beneficiary;
* jointly incurring and being held liable for debts;
* making medical treatment decisions for each other;
* protection from discrimination based on marital status in areas such as employment and housing;
* filing income taxes jointly; and
* ending a marriage and distributing property through a legal process.

Arguments For

1) The public has an interest in preserving the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman and, as such, provides the optimal environment for creating, nurturing, and protecting children and preserving families.

2) A constitutional amendment is necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. In Massachusetts, a statutory definition was not sufficient to prevent a court from requiring the state to recognize same-sex marriages. Any change to the definition of marriage should be determined by the voters, not judges.

Arguments Against

1) Language that limits marriage to opposite-sex couples does not belong in Colorado's Bill of Rights, which generally guarantees individual rights. Amendment 43 may be unconstitutional because it denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.

2) Adding the proposed language to the constitution is unnecessary because there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman. Additionally, federal statutes define marriage as between one man and one woman for purposes of federal laws.

I'm not finding much here relevant to the establishment clause. While I think the "arguments for" are faulty, I also think that they are separable from religion.

So what about the equal-protection clause? The second "argument for" claims that the goal is to prevent the courts from overturning state law. And, as an addition to the state's Constitution, Amendment 43 would restrict the action of state-level courts. But it would not stop federal courts from tossing it out on equal-protection grounds.

The first "argument against" expressly raises the matter of equal protection, claiming that Amendment 43 "denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children." However, the second argument points out that "there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman."

As discussed previously, Amendment 43 does not seem to restrict "domestic partnerships" for gay couples. Thus, if a court were to intervene on equal-protection grounds, I think the more likely route would be for the court to require the state to allow for "domestic partnerships" in statute.

I have suggested that, regardless of the position of the courts, the legislature should provide for "domestic partnerships" through statute.

Would this, as Puzycki argues, still violate the equal-protection clause? I remain unconvinced.

Puzycki claims that offering "marriage" contracts for heterosexual couples but "domestic partnership" contracts for homosexual couples would create separate status for the two, and "'separate' implies inequality." However, unlike segregated schools, having two titles for contracts of romantic unions would not physically separate heterosexuals from homosexuals. The only difference that I can see is that the contract would have a different title on top, which doesn't strike me as much of an imposition.

I don't want to fall into the trap of failing to take the principled stand on this one. But I just don't see any significant difference between "marriages" and "domestic partnerships" for gay couples. Why fight for eliminating a distinction that doesn't matter? Adding "domestic partnerships" via statute would be a lot easier than removing Amendment 43 and instituting "marriage" for gay couples. As far as I can tell, we're not even talking about a "whole loaf" versus "half of a loaf" here; we're talking about the same loaf in a differently-labeled wrapper.

Marriage, Homosexuality, and Amendment 43

What is the government's legitimate role in marriage? What distinctions may the government properly draw between unions of heterosexual and homosexual couples, if any?

Ryan Puzycki sent in the following comment on February 13 regarding my previous post:

I enjoyed your post on "A 'Religious Foundation' for Law," but was intrigued by your conclusion that you're "not convinced that Amendment 43 violates the establishment clause, as there may be some plausible nonreligious arguments in favor of it." I have attempted, since becoming seriously interested in the issue of gay marriage, to find a secular reason against it. While other Objectivists have raised the possibility that there might be valid arguments against it, none have indicated what those arguments may be. To date, I still have not heard a valid secular argument. From this viewpoint, I do not think there is any way to reconcile Amendment 43.

If marriage is only a religious institution, then the state should have no business involving itself in any aspect of it whatsoever. Those who are married should practice it as a sacred rite, such as the Eucharist or holy orders, outside the authority of the state in the privacy of their homes and churches. The establishment clause would prohibit state interference in the matter, and it would be left to the churches, rightly, to decide whom they are willing to marry. The secular state would still have an obligation to protect those who are unwilling or too young from marriage and to protect the right of the consenting and legally-aged to practice the rite, but otherwise it should confer no special rights, privileges, or benefits.

In upholding the wall of separation, the State would Catholics to marry only one man to one woman, Unitarians to marry gays, and even Mormons to marry one man to several women -- and it would prevent Muslims from marrying a man to a child. The state would have no business sanctioning marriage, as a religious institution, nor offering a secular, civil equivalent. Indeed, there could be no to secular equivalent to a holy union made inviolate by God. In the eyes of the secular state, marriage would be nothing more than a religious observance -- but it would still have the obligation to protect those who wish to practice it. Of course, conversely, religions would have no right nor incentive to ask the state to interfere in religious affairs.

However, marriage is not only a religious institution. Indeed, in the secular realm, marriage is a contract between consenting adults. The marriage contract has a secular, legal, and necessary basis for the protection of, for instance, the transfer of property between spouses upon death and also the legal adoption of a spouse's children. This is not an exhaustive list, but a full list would, of course, exclude tax incentives and other state conferred "benefits." The state's role is merely to enforce that the contract is between consenting adults by protecting the rights of either party if the terms of the contract are breached. And, as with other contracts, the state has no business delimiting the gender of the parties involved (or, even, how many parties are involved). Amendment 43, therefore, nullifies equal protection before the law (14th Amendment) by delimiting who is allowed to contract and who is not.

I think the unconstitutionality of this is made more clear by considering what Amendment 43 would mean if it were translated to other contracts. The state rightly does not dictate the gender or sexual orientation of parties contracting for mortgages, car sales, employment, or transfers of property. In that vein, Amendment 43's potential allowance for "domestic partnerships" is entirely irrelevant. In the same way that the state cannot provide "separate but equal" services for blacks and whites, it is equally unconstitutional to mandate heterosexual loans, homosexual mortgages, and certainly separate classifications for marriages. On the wedding train, what is the constitutional basis for reserving a "civil union" car for Plessy and a "marriage" car for Ferguson? The concepts of "domestic partnership" and "civil union" denote a second-class status to gay marriages. "Separate" is inherently unequal.

Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional. But, even if the Amendment were not religiously inspired, there would be no constitutional or secular basis for a state mandate that discriminates based on sexual orientation. The 14th Amendment is a reminder that the government's primary function is to protect rights equally for all individuals -- not to confer to or deny them any. Insofar as the government has an obligation to enforce contracts, it cannot do so if it legally prohibits individuals from contracting. The state has a duty to recognize and protect the right of any and all adults to consent to a legal union. Therefore, if the state is to refer to such a union as a "marriage," it should recognize only one marriage contract for all consenting adults.

I'd be interested to know your thoughts in response to this, and in light of your post.

Best regards,

Ryan Puzycki

I appreciate the subtle points that Puzycki brings up. I largely agree with Puzycki -- except that I'm still not convinced that Amendment 43 should be overturned by the courts.

I emphatically add that I did not support Amendment 43. I voted against it. It was not one of my major issues of the year, though, for I was busy opposing increased wage controls (which passed) and supporting the partial re-legalization marijuana (which failed). I did write the following about an alternative measure (which also failed): "Referendum I would create domestic partnerships. It makes sense to assure legal standing for gay couples."

I agreed with Diana Hsieh's take on the two measures:

Amendment 43 - Marriage... My vote: No! This amendment is the darling of the Religious Right. ... It must be defeated.

Referendum I - Domestic Partnerships ... My vote: Yes. Voting "yes" on this referendum is perhaps the most clear way of rejecting Christian government in Colorado this election. I do worry that permitting gay marriage will usher in major subjectivism in marriage law, e.g. marry whomever you please, including two women, three men, and a goat. However, that's not a problem with gay marriage (or domestic partnerships) per se, but rather with people's failure to understand the proper grounds of marriage. Moreover, I regard that subjectivism as far less evil -- and far less likely -- than a return to a seriously religious conception of marriage. On that view, Paul and I aren't really married since we're not producing more children for God and community. For an example of that view, see this OpinionJournal op-ed by a Methodist Pastor. Oh, and don't miss Augustine's fantastically revolting views on marriage. Moreover, consider the main argument in our Colorado "Blue Book" against the referendum:

Domestic partnerships diminish the significance of marriage for society by reducing marriage to a list of benefits and responsibilities. The benefits given to married couples are intended to support child rearing by one man and one woman. The state has an interest in restricting recognition and legal protection to these married couples to provide stability for the individuals, their families, and the broader community.

In other words, marriage is a mysterious gift from God, not to be understood in words by man. Also, the sole justification for marriage is the demands of raising proper children in a stable family and community. People who choose not to procreate have no claim to the goods of marriage. In general, marriage is not two people committing to integrating their lives according to their own values. That's obviously too selfish and too individualistic.

Unfortunately, this "domestic partnership" measure will impose more government-mandated entitlements (e.g. health care and worker's compensation) upon businesses, but that's a problem with the government-mandated entitlements, not domestic partnership per se.

So I'd strongly recommend voting in favor of this measure.

Last year, I also wrote an article titled, "A Defense of Marriage for Couples." There is a "contractual basis of marriage," I argued, and it is among the government's legitimate functions to facilitate and uphold contracts. However, I saw no important difference between "gay marriage" and "domestic partnership;" I wrote that "gay marriage (or 'domestic partnership') rightly puts homosexual couples on equal footing with heterosexual couples..."

Puzycki writes, "Based on the religious motivations that spurred Amendment 43 alone, it should be overturned as unconstitutional." I disagree with this argument.

Take, for example, the abolition of slavery. Obviously that was religiously motivated. There may have been some abolitionists who were not Christians and who did not offer Christian reasons for abolishing slavery, but I am not able to name any. Obviously, we do not wish to re-institute slavery because its abolition was religiously motivated.

The important point, as I argued in my recent post, is whether the reasons for a law are separable from religion: "[S]ome laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason."

The protection of individual rights, regardless of race, does not fundamentally depend upon any religious doctrine. It is entirely separable from religion. For example, Ayn Rand eloquently argued against racism on purely secular grounds, and she argued that rights arise from man's nature as a reasoning being, which has nothing to do with race.

The spending of tax dollars to teach creationism is an example of a policy that is not separable from religion. Creationism promotes a distinctly religious view that a supernatural being or force created the world and life.

I'm still not convinced that Amendment 43, whatever its faults and problems, violates the establishment clause or the equal-protection clause. I wrote:

[T]here may be some plausible non-religious arguments in favor of it. If it's true that Amendment 43 allows for "domestic partnerships" -- an equivalent of the marriage contract for gay couples -- then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.

Note that I did not claim that the non-religious arguments must be valid. I claimed merely that they must be "plausible." (By the way, I know of no Objectivist who has claimed to make a valid argument against gay marriage, but I'd be interested in learning about such claims if they exist.)

I think that I can offer at least one such plausible argument: "The difference between heterosexual marriage and homosexual domestic partnership is that only heterosexual marriage can result in one partner impregnating another. Obviously female domestic partners can become pregnant, but the sperm necessarily comes from a party external to the partnership. Male partners can adopt children but not give birth themselves. Thus, while the domestic partnership contract is substantially similar to the marriage contract, it must accommodate the real, biologically-based differences between heterosexual and homosexual couples."

I don't think that argument ultimately holds up, because heterosexual, married couples can also adopt children and use artificial insemination, and the marriage contract seems to accommodate such situations.

Here is another argument that is less plausible (because based on philosophical nominalism) but still not religious: "By common understanding, practically everyone sees 'marriage' as the union of a man and a woman. Thus, we need some other name to describe unions of homosexual couples."

I'm convinced that Amendment 43 was unnecessary, that it doesn't belong in the state's Constitution, and that it was largely motivated by bigotry rooted in religious dogma. Yet I am still not persuaded that Amendment 43 should be overturned by the courts based on the establishment or equal-protection clause. (I remain open to debate on this matter, and the argument about equal protection strikes me as more forceful.)

However, Puzycki's main point seems to be that homosexual couples deserve comparable protection of contract law, and on this point I quite agree.

February 21 Update: Readers are welcome to read the further discussion on this topic.

A 'Religious Foundation' for Law

Lynn Bartels wrote an interesting article for today's Rocky Mountain News that begins, "A lesbian couple wants to overturn a voter-approved ballot measure that defines marriage in Colorado as the union of one man and one woman."

Here, I am not so much interested in whether the measure should be overturned by the courts, but rather in what sort of arguments people are making on both sides. Here is the basic debate, as summarized by Bartels:

The lawsuit claims Amendment 43, which 56 percent of voters approved in 2006, is unconstitutional on several grounds, including it was "religiously motivated" and has the effect "of establishing religion."

Rep. Kevin Lundberg, R-Berthoud, who helped put the amendment on the ballot, laughed at that argument.

"If that's the case," he said, "we can throw out most of our laws because most are based on some moral perspective, and you could argue that is a religious foundation."

"We could even throw in the Declaration of Independence on those grounds: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights... Creator."

I have heard Lundberg's basic argument many times before. The argument is that all laws have a moral foundation, and all moral truths have a divine origin, thus all laws have a religious base, and no law may be rejected merely because it has a religious base. Lundberg's argument is complete nonsense.

It is true that all just laws have a moral foundation. However, it is not true that moral truths depend upon a god. Our right to life, liberty, and the pursuit of happiness does not depend upon the existence of a supernatural "Creator." To take another example, murder laws are based on the immorality of unjustified killing; there are perfectly secular, non-religious, earth-bound reasons not to kill others (excepting cases of self-defense).

Various religions, on the other hand, offer a variety of "reasons" for killing others, along the lines that God said so. For example, Leviticus 20:13 advocates the murder of homosexuals: "If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them" (the Oxford Revised Standard).

The distinction that Lundberg fails to make is that some laws have a solid secular moral foundation (regardless of whether they also match some religious code), while other laws have a strictly religious foundation. Laws that arise solely from religious beliefs should be repealed or overturned for precisely that reason.

The question, then, is whether Amendment 43 is basically grounded in religion, or whether it also has a serious secular foundation. That is, is the issue fundamentally separable from religion? If it is, then it should not be overturned based on the establishment clause.

This is not always an easy thing to figure out. For example, clearly the Blue Laws -- prohibitions on select economic activity on Sundays -- have a religious background historically. However, today nobody seriously supports those laws on religious grounds. Instead, arguments in favor of such laws are essentially protectionist in nature. Thus, while the Blue Laws should be repealed because they violate rights of contract and property, it's not obvious that they should be overturned based on the establishment clause.

Clearly, Lundberg himself is strongly motivated by religion. For example, he endorses Mike Huckabee for president because Huckabee's "faith and principles guide his every step." Given that Lundberg endorses the idea of religious faith guiding a politician's every step, mightn't we conclude that Lundberg's opposition to gay marriage (or partnership) is religiously motivated?

I looked up an old article about Amendment 43, and it too suggests a strong religious motivation for the measure:

Push to nix gay nuptials begins
But groups not all on same page -- Focus on the Family and others disagree on whether a state amendment should ban civil unions too.
The Denver Post, December 9, 2005
Eric Gorski

What was envisioned as a broad coalition coming together to put a constitutional amendment prohibiting gay marriage on the Colorado ballot next fall is divided over what exactly the measure should say.

According to sources involved in the discussions, the influential Colorado Springs evangelical Christian group Focus on the Family is pressing for a measure that would ban not only gay marriage but also same-sex civil unions or domestic partnerships.

But other potential backers of an amendment -- including the state's three Roman Catholic bishops -- prefer a narrower, potentially less divisive ballot measure that would simply define marriage as between one man and one woman, sources said.

Another key player, the Rev. Ted Haggard of Colorado Springs, president of the National Association of Evangelicals, said Thursday that he stands with the Catholic position.

He said the institution of marriage deserves constitutional protection and that civil unions are a matter for the state legislature.

The fact that Haggard was later discovered to have purchased illegal drugs and various services from a male prostitute does not change the fact that that Amendment 43 was religiously motivated.

However, I'm not convinced that Amendment 43 violates the establishment clause, as there may be some plausible non-religious arguments in favor of it. If it's true that Amendment 43 allows for "domestic partnerships" -- an equivalent of the marriage contract for gay couples -- then that strikes me as a reasonable alternative that should be pursued through the legislature. The courts are not always the answer to religiously-motivated bigotry against homosexuals.

Bigotry in the Name of God

Hell does not exist, but the bigoted, despicable thug Fred Phelps, who protests homosexuality at the funerals of American soldiers and blames the nation's problems on homosexuality, would richly deserve a place there.

As Mike S. Adams writes ("Fred Phelps Goes Down Under," January 30, 2008), recently Phelps wrote to the family of Heath Ledger, claiming that Ledger is burning in hell and asking how to disrupt the funeral.

Adams appropriately condemns Phelps. However, he (apparently) jokes that Phelps is also gay and that is why he is so angry; the truth is much uglier. For Adams to mock homosexuals in the same article that he condemns Phelps is tasteless, to put it mildly.