Efforts to overturn California's anti SSM Prop. 8
|Olson and Boies appear to mean the union of a loving, committed couple,
no matter what their gender.|
|Nimocks and Cooper appear to mean the union only of opposite-sex couples who also procreate and create a family of biologically related children. The exclude all unions by same-sex couples. In fact, their new, radical, and narrow definition of "marriage" excludes most married couples in America.|
Clearly displayed from media articles about the lawsuit are two very different concepts about gender, marriage, parenthood, and society.
The plaintiffs represent most of the LGBT, human rights, secular, and religiously liberal communities, and others. Their views are currently shared by a minority of all American adults, consisting of the approximately 45% of American adults who favor marriage equality. This group is increasing in size by about 1 to 2 percentage points a year. By all indications, the lawyers and their plaintiffs regard loving, committed same-sex relationships as equivalent in every way to loving, committed opposite-sex relationships.
They view the denial of same-sex
couples' right to enter marriage to be a civil rights matter very similar to
the denial of marriage access to inter-racial couples
throughout much of the U.S.
prior to 1967. They feel that for the state and federal governments to take tax
revenue from all couples and then give recognition, status, special rights, and
protections only to opposite-sex couples is profoundly unjust.
They regard marriage as a fundamental human right "to liberty, of privacy, association and spiritual identity." As the U.S. Supreme Court ruled in Loving v. Virginia (1967) -- the case that redefined marriage throughout the U.S. to include inter-racial couples -- "freedom to marry [is...] one of the most vital personal rights to the orderly pursuit by free men."
The plaintiffs make the case that enlarging the scope of marriage to include same-sex couples does not threaten opposite-sex couples, children, or the public welfare.
They argue that a Proposition 8 that was designed to revoke the marriage rights of one "disfavored group of citizens" was an unconstitutional appeal to fear and prejudice. 2 In their briefs, the lawyers assert that the ballot measure was: "motivated by moral disapproval and irrational views" about gays and lesbians.
The plaintiffs have an uphill battle ahead of them. No federal court has ruled on SSM in the past. Also, although a substantial majority of American voters support civil unions for same-sex couples, a narrow majority opposes SSM.
The defendants represent most of the religious and social conservatives in America and others. They are currently a majority, consisting of the approximately 55% of American adults who favor restricting marriage as the union of one man and one woman. This excludes loving, committed same-sex couples from the institution of marriage. This group is decreasing in size by about 1 to 2 percentage points a year.
The defense team and Protect Marriage apparently take the position that marriage, by
definition, can only involve the union of one man and one woman. Such
unions predate the establishment of the first governments and legal systems.
They feel that the definition of marriage should not and cannot be changed. They describe men and women as "two different elements" in society -- almost as if they are different species. This follows logically from the common conservative Protestant position that in marriage a major role of the man is to protect the woman; a major role of the woman is to civilize the man. From these points of view, same sex marriage makes no sense. A married lesbian couple would consist of two women seeking protection but unable to give it to each other; a married gay couple would consist of two men seeking to be civilized, but unable to give that to each other.
Lawyer Charles Cooper is reported as having stated that marriage is:
"a pro-child social institution. ... [The purpose of marriage is] to promote naturally procreative sexual activity in a stable and enduring relationship" that will nurture children. 3
In the middle of this statement are two key words: "naturally" and "procreative." Together, he uses them to redefine marriage from its traditional definition into a radical new meaning. He appears to mean that in a valid marriage, the two spouses engage in sexual intercourse, conceive, and create a family involving children who are biologically related to their parents. That is, the children's DNA is composed of parts of the DNA from both spouses. He seems to believe that without this biological link in the children's DNA, that a true marriage cannot exist. The implication is that parents raising children who have foreign DNA are unable to bond well with their children.
Webmaster's note: Full disclosure: I am having
difficulty maintaining my cool in the presence of this radical
re-definition of marriage. I am a male very happily married to one wife
who together are approaching their 20th anniversary. I am the proud father of
an adopted daughter whose DNA is totally unrelated to his own. He cannot
conceive [no pun intended] of being more completely bonded to her. I
regard Cooper's new restrictive concept of marriage as a slap in the
face to me and to all other adoptive parents. In addition, because of
age and necessary medical intervention, both my wife and I are
infertile. According to Cooper's "naturally procreative" phrase, my
marriage is doubly invalid.
Cooper's position radically redefines marriage, because it seems to imply that most marriages in America are invalid; they do not meet Coopers sole purpose of marriage. Consider:
|All current marriages by same-sex couples.|
|Lesbian couples who procreate through artificial insemination, in-vitro
fertilization. and other assisted reproductive services. They have children
who contain the DNA of only one spouse -- at least with currently available
technology. However future advances in stem-cell research may eventually
allow lesbian couples to meet Cooper's DNA criteria and thus meet the purpose of
marriage in his eyes. Even then, Cooper would probably wish to exclude them
from marriage because the process by which they conceive would be
unnatural in his eyes.|
couples -- opposite-sex or same-sex who lovingly choose to adopt and raise children.|
|Elderly opposite-sex couples who marry when the woman has passed
menopause and has become infertile, or when the husband is infertile or
|All couples -- same-sex or opposite-sex -- who choose to have no
|All couples -- same-sex or opposite-sex -- who are using a contraceptive
method or technique to avoid becoming pregnant.|
|Some opposite-sex married couples in which one partner is infertile. If they go through an assisted reproduction program involving an ovum from the wife and sperm from the husband, then they might meet Coopers new definition of marriage. However, they may be excluded since Cooper might regard the program as unnatural. Certainly, if they use a donated sperm, donated egg, or snowflake embryo (a donated embryo) they would not meet his definition.|
In short, their position denigrates and excludes most marriages in America as not meeting the "purpose" of marriage.
Their position can be interpreted as an attack on opposite-sex married couples who are infertile and/or who adopt children, or who decide to not have children. So far, we have not found any outrage against this position. Such a radical position will obviously impede their ability to obtain a favorable ruling at the trial level and any subsequent appeal.
Their position may indicate a split in the evangelical Christian community. Even as this anti-SSM drive proceeds through the courts, evangelical groups like Focus on the Family are investing heavily in the promotion of adoption.
Bob Egelko of the San Francisco Chronicle attempted to describe the
stance of the defendants. He wrote:
"Extending wedlock to gays and lesbians, they maintain, would radically redefine marriage, weaken biological parents' connection with their children, tell men that 'they have no significant place in family life' and force many religious Americans to choose between being a believer and being a good citizen'." 2
|Redefining marriage: It is true that overturning Prop.
8 would redefine marriage to create a culture of marriage equality in which
all loving committed couples could marry -- without regard to their gender
and sexual orientation. This would allow an additional 2 to 5% of loving
committed couples to marry -- namely same-sex couples. This would not be the
first such redefinition in the history of the U.S. Marriage was redefined by
the U.S. Supreme Court in 1967 when inter-racial couples were allowed to
marry anywhere in the U.S. It was redefined after the Civil War when African
Americans were allowed to marry. But the philosophy of the defendants, as
described above, is also a redefinition of marriage. It is much more
radical. it would deny that most American married couples have a
relationship that meets the purpose of marriage. |
|Weakening the biological connection: This apparently
relates to their ideas about children's DNA. Tens of millions of successful
families who have adopted children or used assisted reproductive services
show that this is not a significant concern. However, if a man defines his
main role in life is to be a sperm donor to his wife, he might be concerned
whether same-sex couples can bond with their children.|
|Men have no place in the family: Men obviously have a
place in families led by two lesbians, because without the contribution of
sperm, no children could be conceived. Tens of millions of children are
raised by single parents -- typically a woman; sometimes a man --
successfully. Many women do this without the continual presence of a male.
Men in families who adopt children obviously share the child raising
responsibilities. Children need a loving, secure, and stable environment in
which to thrive. Some families have no father present; some have one and
others have two. All can be successful. |
|Force religious individuals to choose between their faith and
being a good citizen: We are unsure what this belief means. We will contact Protect Marriage but don't expect a
We tentatively assume that "being a good citizen" means to work for "liberty and justice for all" persons. This would imply support for marriage equality and SSM.
If a person is affiliated with a liberal or with with some of the mainline religious groups, they should have no problem balancing these two roles. Their faith is compatible with the belief in marriage equality: that all loving committed couples should be eligible to marry, assuming no genetic closeness precludes this.
If a person is affiliated with a conservative religious group, then they might have a problem. They may be taught that same-sex sexual behavior is an abomination to God and that marriage is defined as a union of one man and one woman to the exclusion of all others. This might produce a conflict between their faith and a culture that practices marriage equality. Still, they could adopt a position where they do not approve of same-sex marriage and do not personally recognize its validity and yet do not vote to veto it. This would be similar to the position taken by the Roman Catholic Church towards one aspect of marriage. They do not recognize divorce or remarriage without an annulment. But they still accept divorced people into their fellowship and support them spiritually.
The Chronicle article mentions that the defendants assert that the proposition was unrelated to anti-gay bias. They believe that all the ballot measure accomplished was to write the time-honored definition of marriage into the California Constitution.
Charles Cooper, an attorney for the defense, said:
"The traditional definition of marriage does not reflect animus against gays and lesbians. It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation."
Karl Vick, staff writer at The Washington Post, commenting
on public support for SSM, wrote:
"Polls show a similar divide for Americans, with enough support among younger people that advocates predict 'marriage equality' will eventually become the law of the land, whatever the outcome of the San Francisco case."
However, attorney Austin R. Nimocks of the ADF commented:
"The funny thing about younger people is they tend to get older. As we become more wise and more mature, start families of our own and have a wealth of experience under our belts, things change."
|1948: The Supreme Court of California legalized
inter-racial marriages in that state. About 90% of American adults opposed
interracial marriage at the time.|
|1967: The U.S. Supreme Court legalized interracial
marriage across the U.S. About 72% were opposed. A near majority favored
criminalizing inter-racial marriage.|
|1991: Adults opposed to interracial marriage dipped below
50% and became a
|That three major fundamental beliefs that drive much of the anti-SSM
stance by conservatives will not be mentioned at the trial:|
|Chief U.S. District Judge Vaughn R. Walker will rule in favor of
|This case will go all the way to the U.S. Supreme Court, no matter
what the trial court and circuit court decide.|
|The four strict constructionists on the Court -- Chief Justice Roberts and Justices Alito, Scalia and Thomas -- will
vote as a block against the legalization of SSM.|
|The Justices' vote will be 5 to 4, as it has been on essentially all recent moral/religious/ethical cases
before the highest court.|
|The majority will be in opposition to SSM.|
|The decision will hamper future efforts to legalize SSM in the U.S. because the Supreme Court's ruling will be a precedent to overcome by a future Supreme Court.|
It will be interesting to see how many of these predictions are correct. Only time will tell. It should be an interesting ride.
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
Karl Vick, "Same-sex marriage set for big day in federal court," Washington Post, 2010-JAN-11, at: http://www.washingtonpost.com/
Bob Egelko, "Prop. 8 trial begins today," San Francisco Chronicle, 2010-JAN-11, at: http://www.sfgate.com/
Lori Preuitt, "Tears flow during gay marriage trial," NDC Bay Area, 2010-JAN-11, at: http://www.nbcbayarea.com/
Copyright © 2010 by Ontario Consultants on Religious
Original posting: 2010-JAN-11
Latest update: 2010-JAN-12
Author: B.A. Robinson
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