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  • The Legal Argument Against Gay Marriage

    So gay rights is hot topic national topic lately, but this week in particular, and one that I felt for whatever reason I wanted to comment on . . . largely I think because it seems that I only read/hear emotional rants pro/con. And I’m also tired of feeling a little intimidated I guess in expressing a view that seems contrary to trends . . .

    My views on gay marriage is different than gay rights, and yes, it is partly construed from religious beliefs. The moral arguments tend to be more relative and less objective, and while arguably should hold more consideration in the legal argument, technically is not overly relevant. But beyond the religious/moral, I’m more comfortable in my own personal position on gay marriage supported by a legal stand point (thanks EWE for the education and to borrow that phrase) . . .

    So the legal arguments and considerations as I understand it are these:

    1- Marriage is not a Federal Court issue. It’s a state issue . . . always has been (everyone is all excited about this past week’s activities of US Supreme Court, but isn’t potentially relevant to resolving the issue . . . beyond PR). Currently a marriage license is a 3 way contract between 2 people and their state, not the US. This really doesn’t address “the movement” per se, but I do think a relevant point to the discussion.
    2- Marriage is not an inalienable right, i.e. there is not an inherent legal right to marry.  That sounds a little harsh, but there it is.  Basically each State has a right to determine whether it’s in its best interest to enter into and sanction a marriage contract with specific citizens.  Interestingly, many states don’t recognize an automatic legal right to divorce either.
    3- The argument for the traditional definition of marriage has been refined and proven over hundreds and even thousands of years. Namely that society benefits by the sanction of contractual endorsement of marriage between man, woman, and government. Obviously it’s not always a perfect union, but economically, practically, socially, it’s been proven to be the best foundation of a productive society.
    4- What is the societal benefit to gay marriage? Is it possible that man/man or woman/woman, and government based contracts can be a benefit to society? Yes, it’s possible, but the amount of data supporting that thesis pales in comparison to the thousands of years and hundreds of societies/governments based on “traditional” marriage . . . everyone’s anecdotal examples aside. No matter what, there is always going to be an inherent advantage of procreation for “traditional” based societies vs. “gay” based societies.  If I as a citizen want to change the speed limit from 55 to 75, I need to show and prove what the societal benefit is.
    5- This is not a civil rights issue. It seems many in the gay movement are attempting to turn this into a 14th amendment issue and link their cause to slavery/abolition and women’s suffrage. I believe that’s manipulative and proportionally offensive. But this practically may be one of the few ways to attempt to legitimize in a legal argument.

    Finally, a few personal thoughts on the issue.

    1- Because I disagree with you, doesn’t mean I hate you, nor should it mean I’m a bigot. My mom thinks I eat too much and a bit overweight . . . but that doesn’t make her a bigot.
    2- This may sound a bit harsh, but . . . life isn’t fair. Is that a reasonable “catch-all” for this issue? Perhaps not, and I don’t mean to minimize a large sized issue, but the point is, does everything in society have to be altered to make it “fair” for us individually?
    3- As a Mormon, I can think of no greater challenge than to be Gay and Mormon. And I have tremendous respect for those I know that are and the struggles they have.
    4- For those friends of mine that are gay, and are truly being persecuted, please let me know . . . I’d like to stand with you and fight on your behalf.

    Published on March 30, 2013 · Filed under: Politics;
    30 Comments

30 Responses to “The Legal Argument Against Gay Marriage”

  1. If you don’t like gay marriage, then separate the legal from the religious and go for civil unions. Too many legal, tax, probate and other issues are tied up in Marriage to provide no avenue for resolution.

    As far as the rest… It’s pretty hard to know what being legally discriminated against is like unless you’ve walked in the moccasins. I’m gay, know what it means to be a Mormon. I also know the vast majority of Gay Mormons leave the church. No surprise, really. It’s a second class citizenship where intimacy, affection and Love are absent from this life. Or worse, the hope is removed. Ever wonder why the suicide rate among gay Mormon young men is sky high?

    I’d respectfully encourage you to reconsider….

  2. Well presented… Whether I agree with you or not does not really matter. I respect your opinion and that’s all I need to say.

  3. Richard said on

    I agree, you do eat to much.

  4. i’m not really interested in a discussion, but i appreciate your courage and diplomacy to state your (unpopular) belief while reaffirming your support to your gay friends.

  5. and to kurt – i appreciate your honest disagreement without attack.

  6. Richard said on

    I do not believe it is an unpopular belief.

  7. i guess it depends on your peers, richard. i have friends on both sides of the argument. all i meant was that to express an opinion against a federal law to gay marriage can open you to lots of anger, thus it takes courage to do so.

  8. Consider if it were your son or daughter. Can you honestly say you wouldn’t want them to have the same rights that you have?

  9. Richard said on

    The mere fact of being Gay does not entitle you to anything. Just like being a human being does not entitle you to live anywhere you want on this planet. Is being gay another entitlement program?

  10. Being a citizen does entitle me, and you, to equal protection under the law, to civil rights, to the fundamental premise that all men are created equal. I don’t believe it was written as “all men are created equal , unless they are gay.”

    Nobody is asking for entitlement, except perhaps those who wish to impose their view of legal rights upon various minorities.

    But of course, that’s been going on for centuries…

  11. Richard said on

    Under the law! That is what the courts are hearing now. So far the vast majority of our states rule against gay marriage. The people of Calif. voted against it, so it was the will of the people at this time. How come many in the Gay community state they are not created equal. They themselves bring God into it by claiming God made them Gay, so in fact they are not equal. But dont let other groups or people bring up God who are against Gay marriage and the screaming and hollering on the other side drowns out everything else.

  12. People voted to pass the constitution too… Which originally allowed slavery, considered black people to be 3/5ths of a white man, and prevented women from having the right to vote. Germans elected Hitler. What makes the act of a majority vote so perfect?

    You’ve got every right to scream and holler just as much as those of us on he other side. Have fun.

  13. Kurt – you were one that I thought of as I wrote this, and while considering the issue. I know you to be a person of integrity, and someone worthy of respect. I agree with you to a large degree in the argument for civil union laws . . . but that doesn’t always seem to be the end goal or real intent. It feels that most want “fairness” to be legislated . . . and to impose that “fairness” on everyone, regardless of impact on others. Example would be adoption and Catholic Church. Further, is there any doubt that eventually the ACLU or other groups will sue the Mormon Church to force gay marriage in temples?
    As far as the “walked in the moccasins” . . . ultimately you’re right, that’s always a bit of a trump card that can be used by those in unique situations. As a racial minority, I’ve expressed that opinion myself. One of my favorite scenes in the movie Good Will Hunting is the part where Sean and Will are at a park and Sean expresses comfort in the fact that Will, while smart and intelligent; ultimately book learning is different than experience. Sean expresses to Will, who is an orphan, “Do you think I would presume to know the first thing about [being an orphan] because I read ‘Oliver Twist’?” But that doesn’t preclude and remove the ability of others to consider and even legislate on issues that they don’t have first hand knowledge. Hopefully as evolved beings we can empathize and sympathize appropriately where necessary.
    Certainly I can’t reasonably debate with your feelings of “Second class membership.” At the same time, while I understand how those feelings can manifest, to suggest that is somehow a purposeful intent I think minimizes our own accountability to adapt, or find meaningful resolution, or unfortunately to simply find ways to cope.
    I appreciate your dialogues on this!

  14. Richard – you’re obviously in the same bigot camp as my mom!

    JOKES, I make JOKES!!

  15. Kurt, I don’t recognize the difference between a gay man and a straight man. Both are men. I don’t think being gay is being a different race. As a society we don’t have to accept every decision that people make. You may argue that when you act you are not deciding anything. I trust in a faith that tells me otherwise. I can respect your decision to act as you wish, but I don’t want my kids being taught in school that it is morally acceptable and condoned by the government. It is what it is Kurt. I doubt we will ever agree but I wanted to be honest with you about my feelings.

  16. Will – honesty is always appreciated. Disagreement with you is more fun than disagreement with other less rational souls.

  17. But I don’t think I ever said that when I act I’m not deciding anything…. But I didn’t “choose” to be gay, and you didn’t “choose” to be straight. You were fortunate enough to be blessed/chosen (whatever term you want) with Heterosexuality, being white, a solid middle class upbringing by a family who loves you, and with the legal right to marry someone to whom you are physically attracted to. Pretty good package, I’d say. But life hands all of us lemons, we then have to make some lemonade, but how much sugar (positive attitude) we add to the package is up to us. Teach your children what you wish, I’ll do the same with mine. But I know myself, I know my own heart, and I know that Love is Love, and it makes no distinctions. I hold the belief that our government has some “equal rights” obligations which ought to be “fair.”

  18. Take a read gentlemen if you want to see what I mean about legal rights. http://www.hrc.org/resources/entry/an-overview-of-federal-rights-and-protections-granted-to-married-couples

  19. Lisa BL said on

    I agree totally with you. To me, marriage has and always will be a “religious” ceremony. If someone wishes the legal benefits of a union they could just as easily request a change in civil liberties … it doesn’t have to be “marriage” per se … just as common law relationships allow to a certain extent, legal rights, there could be other options for those wishing to intertwine their lives legally. I’m not a polygamist obviously (however if there was another woman willing to clean the house I may consider it at this point in life ), but I believe those who as adults want and consent to that type of relationship, should also be given legal options … don’t leave out one group over another.

  20. Lisa BL said on

    :-) A bigot is someone who is obstinate in their beliefs :-) — pretty much everyone is a bigot whether they support or not either way — being a bigot isn’t necessarily a bad thing.

  21. Not being acquainted with any of you but Mike, permit me to add my thoughts. i wrote a letter to the editor of our local newspaper that expresses some of my thinking. At the end it I just wanted to have the distinction of being among those who can and chose to have children. Todd,

    After reading Kenneth Lowe’s article ‘Illinois gays eager for equality’ In Sunday’s newspaper, I decided that I needed to weigh in on the issue. I have no reservation with gays and lesbians having the same legal rights as recognized married men and women under Illinois law. Legal union is an appropriate term which should be recognized by all factions of society, giving these individuals the right to claim each other as legal tax exemptions, to hold property jointly, to adopt and rear children together and equal in every other legal way as those we call married. I disagree with my friend and colleague, Rene Very, that it is more than a matter of semantics.. I believe marriage is a sacred covenant between man, woman and God to perpetuate their species with offspring. It is a covenant to rear and nurture the product of their conjugal union. As a retired biologist I have yet to learn of a way two men or two women can do this without outside intervention such as artificial insemination. This concept of marriage is the foundation of perpetuating societies and has been accepted since man”s beginning on earth. As such I think that this distinction should be maintained and reserved for those of us who have the biological ability and resolve to bear and rear children. Let’s create a new term ‘gay/lesbian marriage’ or just keep ‘civil union’ so as to not trivialize marriage into simply a legal joining of two individuals.

  22. Sorry I left the impression that Todd wrote the intro. I failed to delete his name and yes I also know Leslie.

  23. Vinnie D said on

    I appreciate your dialogue. These are some intelligent comments. I, to, am mormon and have many gay friends. I have an oppinion on this matter that is somewhat unique- maybe its garbage maybe not- you can judge. The inherant problem in the system is hypocrasy in the very foundation of our constitution. As much as i love God and think everyone should be mormon i have to point out that we do not have seperation of church and state. The constitution has God in it. Whats up with that? Either have a prophet president or have a clear seperation of the two. All marraiges should be civil as a contract beetween two people of any gender and the state at minimum. If someone chooses they can involve God into that contract through their church. And people should have the right to be married in a church and not be married in the state. For example there are people who have multiple wives. I religiously abhor this practice but who am i to interrupt their rejoicings? If 2 dudes want to be civilly joined then why should we interrupt them? Do i agree with it? No. Do i feel it is morally wrong? Yes. But my reasons are religious and would need to be checked at the door when i weigh a governmental decision. Alma was an example of this when he freed a man who preached doctrine contrary and offensive to his own beliefs. The unfortunate change we need is to slice God out of the constitution and then send more missionaries to teach people about God. I volunteer to go. This whole debacle of gay marraige and marching and grouping together into camps is just disunifying us all. Let a persons religious views be between them and their God. Let us seperate that which is state from that which is church. Give to caeser that which is caesers and render to God that which is Gods.

  24. Vinnie D said on

    And it truly will be a sad day when our society has morally declined so far as to need to take God out of our constitution. I will weep and i will vote for it.

  25. Vinnie D said on

    Besides- what does the government care if the benefit check goes to a man or a woman? Clearly it is not our place to determine which two people can marry- neither should it be our place to determine which gender. The church may but the government shouldnt. If the government does then they dont cite God as the reason and so it is discrimination. If they do cite God as the reason then they have just forced religious beliefs with police power. And so the government will be unable to resolve this and it will be pushed around forever until the constitution is altered.

  26. Vinnie – I think I understand the premise of what you’re saying . . . but I do think there is an important clarification. Separation of Church/State I do not believe is the same thing as Separation of Church/God. In readings and research of early American history, I feel fairly confident even further, that the Founding Fathers would suggest a necessary God/State link . . . just not a specific church or religion. I think the idea that we would not consider a Judeo/Christian God in our constitution and law making was such a foreign concept to them, that they did not even think the need to specify. Clearly the constitution vis-a-vis the FF did not draw primary influence from the governments and history of Islam, China, etc.

    You question why the government cares, and whether you have a right to consider God/religion when you cast a vote, etc. And in my opinion, the answer is again to the consideration to the overall health and benefit to society. Your religious background will obviously contribute to your feelings and understanding of what is good for society. . . and rightfully so. Its clear that the FF’s used personal considerations as well. As a parent, you tell your kids “no” often . . . sometimes for a good specific reason, and sometimes without. A benefit of that in a macro sense is that they learn discipline, even if there isn’t a strong reason to say no in a micro. To always say “yes” would likely lead to hedonism and entitlement.

  27. The church believes acting on homosexuality is wrong. So be it, but have any of you ever wondered why God bothers to create the circumstances for so many of his children to be gay? Pretty fair question I would say… He hasn’t mentioned homosexuality in any modern scripture. There are far more gay people in this world than there are Latter Day Saints. Was it population control? That doesn’t seem to fly with “multiply and replenish the earth”. Was it because we were a bunch of screw ups that deserved this particular torment in this life? When he answers the questions, I’ll be ready to listen.

  28. Vinnie D said on

    Michael- I agree somewhat with your comments. Early America was a form of British government because that is what they knew. And British rule was indoctrinated with religion.

  29. Vinnie D said on

    Kurt- perhaps it is the other way around. I hear people say all the time that God is the source and salvation of their problems. I don’t think this is true. My sister suffered from debilitating depression which got so bad she ended her own life. My father was hit by a car one day while he was riding his bicycle and he died. My mother was severely injured in a car accident when I was 9 and she still bares the handicap from it. And when I served a mission I had to endure Elder Fisk. Did God do these horrible things? My response is- no. Does God dole out Down’s syndrome and Cleft palates like trading cards to new spirits as the fly down to earth? I don’t think so. Did God make someone gay? I don’t believe that, either. We chose to come here to earth to be proved. I honestly think homosexuality is among the most difficult of trials. To live this life without being able to act on your passions and have romantic companionship sounds like torture to me. And yet that is the lot of it. We are here to subdue our natural man and do all things commanded of us- to be proven herewith. Job had one of the most difficult struggles in the scripture. Amid his myriad of trials his friends told him to curse God and die but he would not. He stayed true to the end. I have a very good friend who served an honorable mission and then went to an LDS college where he organized a scripture study group every thursday night. He went to see his Bishop and explained he was having homosexual tenancies. He spent a year working with his Bishop about his feelings all while being obedient. His bishop was kind and supportive. In the end my friend chose to leave the church because he wanted a meaningful relationship. Now I like to think that if I were in his shoes that I would endure endure endure but alas I am not in his shoes and there is no way I truly know what I would do. He is still a good friend but he has very much grown far from the beliefs he once had. Perhaps you, having been LDS, are similar to this situation? Ours in not judge him but it is also not to judge God. Perhaps he was so stalwart in the pre-earth life that he needed a mountain of challenge as big as homosexuality to be proven. Perhaps the trials we face in this life are commensurate with our needs to be exalted. I know the LDS church is God’s church. I cannot deny that. I also don’t think for a moment that God sent us here to be punished- we were successful in our first estate and we chose and were excited to come to our second. I’m sure it is not easy for Heavenly Father to see us suffer. Afterall, Heavenly father watched his own son e brutally tortured and then hung on a cross. Surely that was not easy for a father to witness. So to answer your questions- was it population control. Ha ha- no. Was it because gays are a bunch of screw-ups? No- gays are not screw-ups. Who says that? I don’t know what causes homosexuality. Maybe it’s a gene. Maybe it is something in the water. I have no idea. I do know that gay does not define someone. We all have our salvation to work out. I have my own battles and I far from being a position to tell someone they are not living righteously. I wish you the very best in your life. I think we should live in such a way as to not interrupt other peoples rejoicings. We should lift people up instead of tearing them down. Yes I have my strong religious beliefs but these beliefs should not impede your happiness.

  30. Well written. If someone is trying to interpret all the “why’s” in this world–they may indeed feel that God is dishing out the problems. I actually no longer see being Gay as a “torment” or torture. I’ve come to grips with it, and accept that its part of who I am. I’ve been through a long process of evaluating, coming to grips, examining beliefs, taking a much deeper look at the church and its core doctrines, a much deeper look at the un-whitewashed history of the church, and a process of allowing rational thought and an examination of other faiths and spiritual beliefs to be involved with all this. LDS doctrine embraces the concept that we exist to have joy. I just don’t believe this mortal life should be exempt from that purpose, when it is within our control to find it. I am, and always will be grateful for many things I learned from life as a Latter Day Saint. But at this point in my life, I can’t see much point in living the next 50 years if its going to be alone, intimacy free, romance free, and absent all affection and deep connection with a soul-mate, or at least the hope of it. When I told my mother I was gay, the first words out of her mouth were–“well, you can’t stay in the church—you’ll blow your brains out.” Frankly, she was right. The church trains us to believe that we will never be happy outside of its walls. I’ve learned how false that really is. I’ve also come to realize that my beliefs of what God really is don’t coincide with the LDS view of God. Mormons would say I’ve jumped off the deep end, but if I want peace, happiness and contentment, it just isn’t to be found for me in the Church. And with that–I’ll bid you all adieu. My very best wishes for all of you as you attempt to get your hands around this issue. It took me 40 years…..