The March toward Marriage Equality

When Proposition 8, the amendment to the California Constitution limiting marriage to a man and a woman, passed, it did so by a rather narrow margin -- 52% to 48%.  Opponents to same sex marriage received tremendous financial support from religious groups, especially the Mormon Church.  This amendment served as a response to an earlier California Supreme Court ruling that overturned bans on same gender marriage because they were inherently discriminatory and akin to bans on interracial marriage, which had been overturned in California by the Courts.  What is interesting about California is that it's easier to amend the constitution than pass a budget, and so needing only a simple majority, the voters reversed the court ruling.  That effort led to efforts to overturn the California law by taking it to federal court and arguing that this ban stands contrary to the "Equal Protection" clause of the U.S. Constitution.

Leading the challengers to the law was an interesting pair of attorneys -- two men who faced off against each other in 2000 before the Supreme Court.  The issue then was the 2000 Presidential Election, a case in which the Supreme Court stepped in and ended Florida recounts and handing the election to George W. Bush, even though Al Gore had won the popular vote.  Maybe you remember that.  Anyway, Theodore Olson, Bush's lead attorney in that case, would go on to be Solicitor General -- the position that Elena Kagan held until receiving confirmation yesterday as our next Supreme Court Justice.  Olson is a conservative, a republican, and an advocate for gay marriage!  Sometime back he wrote an important op-ed piece in which he argued for a "conservative case for same sex marriage."   In that piece he wrote:

When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.
So, earlier this week, arguing for the opponents to Prop. 8, his position was vindicated by the Court, when Federal Judge Vaughn Walker argued in his ruling that that tradition alone, including the presupposition that marriage fosters procreation,  is not sufficient to deny rights to one segment of society that is not accorded to another.  

I know that there will be much outcry about activist courts that overrule the will of the people.  Remember, however, that it was the "will of the people" that banned interracial marriage.  It wasn't the legislatures that overturned that discriminatory practice, but the Courts.   It was the will of the people that segregated buses, lunch counters, and schools.  It wasn't legislation that overturned these discriminatory practices, it was the Courts (only afterwards did the Civil Rights legislation get passed to affirm what the courts had already deemed appropriate). 

More important than the initial effects of this ruling are the longer term ones.  Remember that in that earlier election, the vote was rather close -- just a 4 point margin.   While California is considered more liberal than most states, there large swaths of the state that are fairly conservative.  In addition, the Roman Catholic Church and the Mormon Church have significant presences and they both actively backed Prop 8.  In addition, while Latinos and African Americans tend to vote Democratic, they also tend to be social conservatives.  Finally, while the trend in 2008 led to the amendment, recent polls suggest that the wind is at the back of those who support same gender marriage.  So, what's next?

Obviously this will be appealed, and expect it to go all the way to the Supreme Court.  My sense is that the Appeals Court will sustain the District Court judges ruling.  What will be interesting is whether the Supreme Court chooses to hear the case.  It may not choose to do so.  If it does choose to rule, then the question is -- where will Anthony Kennedy take his stand?  If it goes all the way and the Supreme Court rules in favor of the opponents of Prop 8, then we have a perfect storm.  If Prop 8 is ruled unconstitutional then so is every other marriage ban across the nation -- including federal ones.  I think that's what scares religious conservatives (and even many moderates and liberals -- remember that the President has expressed his own discomfort with gay marriage).     

The cultural wind is at the backs of those who support same sex marriage.  Society has become more and more accepting of gays.  In addition, it is becoming increasingly clear that homosexuality is not a chosen "persuasion," but a genetically defined orientation.  The judge in this case accepted as foundational the premise that this is not something that is either "chosen" or "changeable."  My sense is that among those under 40, the majority is not only accepting of gays, but supportive of gay marriage.  The idea that marriage is primarily designed to support procreation is no longer foundational.  We marry for love and companionship, with children as a secondary element.  Besides, with adoption and artificial insemination  there are other avenues for creating families. 

If society is moving in this direction, the religious community seems to be somewhere behind the curve.  It will be a long time coming in Roman Catholic Churches, whose teaching reinforces the principle that marriage, sex, and procreation all go together (my uniformed assumption is that the Orthodox churches would be somewhere in the mix here -- at least regarding the importance of tradition).  Most evangelical churches will stand back from it because they believe it is contrary to their reading of scripture.  Thus, that leaves more moderate to liberal Mainline Protestant churches.  We are, to this point, a mixed bag.  The United Church of Christ and the Evangelical Lutheran Church have taken the most progressive positions.  Disciples of Christ have left these issues to congregations -- with discussion at the "level" of the General Church essentially staying out of the conversation.  What is important to note in all of this is that no church will be "forced" to marry anyone they don't wish to marry.  Although clergy fill a societal role in officiating at weddings (we sign off on the licenses), we are not required to act contrary to theology or beliefs.  

So, where will this lead?  Only time will tell! 


Allan R. Bevere said…
The only comment I would make at this point, Bob is that the comparison between same sex marriage being prohibited and interracial marriage being prohibited is a bad comparison. The prohibition of interracial marriage was an issue peculiar to American history (and other places too)meaning that it has not been an issue in many places for most of world history. The issue of marrying foreign women in the OT has to do with the issue of inter-religious marriage, not interracial as you know.

The same cannot be said of same sex marriage.

I used it because it was the basis on which the original gay marriage ban was argued. I also used it not because they are exactly the same, but because the same arguments were used to support those bans -- it was the will of the people.

So far the arguments for Prop 8 have been -- tradition and will of the people. Neither of these arguments have ultimate legal value.

Now, as I noted there is a difference between what the "law allows" and what "churches affirm." We need to keep these two issues separate.
Allan R. Bevere said…
Bob, I agree the issues need to be kept separate. My only point was that the judge's comparison between the two was a bad one for the reasons I suggested. But, as you say we will see how this plays out.
Gary said…
The U.S. Constituion does not support Judge Walker's decision. Homosexuals are not being treated unequally, nor unfairly; they can now marry someone of the opposite sex, just like everyone. There is no right to change the definition of marriage, not in the Constitution, or anywhere else.

The moral aspects of the ruling are clear too: Walker's ruling is immoral. He contradicts God's word on the subject.

Since Walker has abused his office and violated his oath by saying that the Constituion says things that it does not say, he should be impeached. The Democrats won't do it, but maybe the Republicans will, if they get control of the Senate. But I doubt it.

Walker's ruling will be overturned. It might take until Christ returns to set up his kingdom before that happens, but it will happen.
David Mc said…
Walker is a good ol' Republican conservative. Why would the republicans threaten him?

Obama needs to finally stop with the separate but equal drivel. It makes him sound like a moron.
Anonymous said…
Walker had come under more criticism for representing the U.S. Olympic Committee in a lawsuit against a gay ex-Olympian who had created the so-called Gay Olympics. Walker won, forcing the Gay Olympics to become the Gay Games. He also aggressively pursued legal fees by attaching a $97,000 lien to the home of the organization's founder while he was dying of AIDS.

Gay activists cried foul, and his appointment to a federal judgeship was delayed for two years in the waning days of Ronald Reagan's presidency.
John said…
From a purely secular point of view, the distinction between a law banning marriage between people of different races seems to me to be analogous to the a law banning marriage between people of the same gender.

The state sponsored institution of marriage is a recognition and a grant of a special privileges to a contract between two people to become a corporate entity. The reason for permitting and even encouraging this special contract is that it contributes to the peace, stability and good order of society.

The legal privileges accorded to members of such an entity are regulated by the state. The determination of who may participate in such a contract are determined by the state. Paramount in the state's consideration of who may participate in the contract should be the concern that the parties have the capacity to knowingly consent to participate in such a contract.

The state is precluded by the Federal Constitution from invidious discrimination as to who may partake of privileges and rights granted by the state. To exclude someone from such contract because they do not share the same race as the other, or because they share the same gender appears to be invidious to me.

The analogy is a fair one for the state to draw.

However, religious organizations need not affirm conduct, which though legal, is prohibited by their religious covenants.

Even then however, religious organizations may be lose state benefits if they embrace and participate in acts of invidious discrimination, e.g., the threat to Bob Jone University to lose its tax exempt status if it should continue to advocate the prohibition of inter-racial dating and marriage among its adherents.

Gary said…

The Constitution does not mean what you think. Homosexuals are already being treated the same as heterosexuals by the government concerning marriage. Everyone, whether heterosexual or homosexual may marry someone(one at a time) of the opposite sex, provided neither party is already married, and is of legal age to marry.

Homosexuals are NOT being denied the right to marry. What they are being denied is the same thing that I am being denied, which is the ability to define marriage any way I want. There is no right, constitutional or otherwise, to define legal marriage any way you want.

What you, and Walker are saying is that the Constitution allows people to redefine marriage as they want. You are both wrong.
John said…
Marriage is not defined in the Constitution. It is a preferential type of contract, defined and regulated by state law. The issue is not whether I or anyone else can define it anyway we want, but how the states define it, and whether the states are free to limit who may and may not participate in such a contract.

The 5th and 14th amendments to the Constitution preclude the states from denying equal protection of the laws to any one on the basis of invidious distinctions. Distinctions based on race and gender are considered invidious and thus precluded.

So the question is presented can a state allow two people of different genders to participate in a marriage contract and then deny two people of the same gender from participating in such a contract? Or, can a state sidestep the problems of the Equal Protection Clause simply by re-defining marriage as a contract between one man and one woman? It could be argued that it is a definitional statute and therefore not prohibited in any explicit way. Could a state then re-define marriage as a contract between one black man and and one black woman as a contract between one white man and one white woman. After all its just a definitional change, not any sort of an explicit prohibition.

Since you are so attuned to the physical relationship between the married couple: could a state re-define marriage as a contract between a man and a woman who together are physically and medically capable of having coitus and in that act they are thereby capable together of conceiving and bearing children.

If coitus and bearing children are optional and not required components of a marriage relationship, then you can have no objection if two people who are committed to childlessness and celibacy choose to marry each other. In such case is there any reason to require that they be different genders? What would be the rational point to such a limitation?

No, it is not about defining marriage any way I want. I love my wife and the daughters of our union. I am blessed to have been born into a circumstance which allowed me to live according to my own heterosexual nature and realize my dreams of conceiving and bearing children with my spouse.

It is about what the state can and can't lawfully do.

Gary said…

I read the 5th and 14th amendments to the U.S. Constitution. Neither of them say anything about "invidious distinctions".

There is nothing in the U.S. Constitution that requires any state to allow same-sex marriage. Judge Walker's ruling that there is such a requirement is fundamentally dishonest. For that dishonesty, he should be impeached.

The proponents of same-sex marriage have no basis for their argument in the Constitution. They want same-sex marriage for reasons other than Constitutional ones, but they are trying to make everyone believe that the Constitution is on their side when it is not. I suspect that they(you) know that, but don't think you(they) can afford to admit it.
Doug Sloan said…
Since no one here is claiming to be a Constitutional scholar, the arguments made here by all sides, while interesting and entertaining, are not persuasive.

I am content to let the U.S. judicial system work. First the Appeals Court, then the Supreme Court. At that point, the question about the constitutionality of Prop 8 will have a definitive and enforceable answer.
Gary said…
We left it to the judicial system with Walker, and what we got was an abuse of the Constitution.

I expect the 9th Circuit Court will be as moronic and incompetent as was Walker. Hopefully there are five judges on the Supreme Court that will make a decision that is Constitutional. If there are five, then Constitutional sanity may prevail.

Also, a lot of people have ignored the opinion of the Ulitmate Judge. But God will have the last say.
David Mc said…
John said, "Marriage is not defined in the Constitution."

Which is interesting since I'm sure there were the same proportion of the population who were gay as today.

Oh well, that's why we vote on amendments.

hmm.."or the right of the people peaceably to assemble". No I won't go there. But even out of context, gay marriage pertains to the rare issue of law regarding to the freedom to love. We should do it out of pure reason, not what someone's God implies.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
John said…

Not persuasive to whom? Are you suggesting that there is nothing to be gained from public debate?

Regardless of how the issues is eventually disposed of by the courts, debate is healthy, and regardless of how the courts ultimately rule, that does not mean that the courts will get it right ( Dred Scott, Plessy v Bd of Education) or that the debate will be resolved.

And why should we be content to sit quietly and await the judgment of the courts? Public debate is part of the American fabric. It is part of the Disciples fabric.

Issues such as this need to be considered and debated, especially among people of faith, because however the courts decide on behalf of the state, that will not resolve the matter within the church. Issues regarding the requirements of Scripture, and issues of exclusion and inclusion, issues of sin, forgiveness, compassion, and the limits on human and divine love are critical to what it means to be part of the body, especially in the Disciples tradition where have no Pope to declare for us what we should believe.

What is right is that people like me and Gary should wrestle with each other until we have exhausted ourselves, and that we should do so publicly so that those who have no stomach for active participation in the debate can hear and reflect on the merits of our positions and pray to God for wisdom in discerning truth, if either one of us get close to it.

I can't sit contentedly until a court tells me what is right. And maybe not after the court tells me what is right.


Rial Hamann said…
I would like the US to consider something which is very common in Europe. The civil rights of joined people are granted or taken away by the "state" at a civil service by a designated civil servant.

The confirmation of that state issued bonding, now under God, is the domain of the church. The church can not disolve the rights of the couple under the law. They may choose not to recognize that civil bonding or they may choose to recognize the civil bonding and bless the event "under God's eyes."

The seperation of the civil from the sacred actually adds clarity in my mind. The "state" givith or taketh away the legal rights of the individuals in the bonding. The church grants or does not grant the blessing of the church in the eyes of God to the couple.
Gary said…
America is provoking God with things like this court ruling. That is very foolish. People today have no fear of God. Some think God is a kindly old gentleman that chuckles at their sin and pats them on the head.

Some think God actually approves of this wickedness. I read one so-called pastor who said that Prop 8 was incompatible with Christianity. Imagine that, marriage between a man and a woman incompatible with Christianity. What idiots the seminaries are turning out. Instead of educating men of God, they are producing infidels.
Doug Sloan said…
(excerpt from RECLAIMING GOD by Doug Sloan)

God has never been, at any time for any reason, a capricious God of death, war, destruction, murder, violence, oppression, retribution, vengeance, hate, or conditional acceptance.

God has always been a consistent God of life, peace, creation, healing, reconciliation, liberation, resurrection, transformation, love, and grace.

God has always been the same. God does not change. What is changing is our expanding view of God and the increasing wisdom of our understanding of God and the Godly life we are called to live. From Genesis 1:1 to Revelation 22:21, through the entire course of the Biblical scripture, God is calling us from within the scripture to grow and to continually move forward and to mature beyond the view and wisdom found in the scripture. From mere existence through tribal justice through the detailed code of the Law of Moses through the revelation by Jesus of the dual foundation and purpose and expectation of the Law through the invitation to live a new life of resurrection and transformation with God as the only ruler of our new life. God is continuously calling us to grow and to move forward and to mature beyond our usual human existence to be the Kingdom of God. Without the requirement of death as a precedent, we are constantly invited to be resurrected for and transformed into the Kingdom of God for our life and especially the lives of others. We are called to live here and now a life of resurrection and transformation as the Kingdom of God - this is the Good News.
David Mc said…
Your brother's not the boss of you Gary.
John said…

I sense that this getting off- topic, but I want to respond anyway.

I think God is changing, constantly.

I think the Creation always reveals hints about it's creator. One thing is static and unchanging about the creation of which we are a part, and that is that it is marked by endless change, change at all times, at all levels, macro- and micro-, continuously. We age, time passes, life and death unfold, moving into the next phase, into the next aspect of creation. Time does not stop, and nothing is the same from one moment to the next, each moment being informed by the last.

If a basic operating principle of creation is change, then it is fair to surmise that change is a basic operative principle for the creator. God is informed by our successes and failure, by our joys and our sorrows, by the threats we face and the moments we celebrate.

Equiped with this information, God is moved, God is changed, and God responds accordingly. Nothing is pre-determined. If it were not so, then we are merely actors in a play, on the 43rd night, doing our bit to play out the string. But that is not so: God is present, supporting each of us, cheering us on, not as a pointless exercise, but in genuine hope that this time we are sufficiently changed to do better, and perhaps even for once, get it right. And if not God is there prepared t
o console us in our failure.

And God is changed by the experience. I don't agree that God is unchanging. We change God. And God the Creator would have it no other way! It is part of the nature of love - to always be affected by the beloved.

Doug Sloan said…

Your post really gave me pause - truly, thank you for that.

Where I am in my faith journey; how God adapts to our changing relationship does not indicate a change in the nature of God, in who God is.

God is always yearning for us to be our best. So God's adaptation to the place and conditions of the relationship God has with each of us, is an adaptation with a purpose - to call us forward from where we are to something better.

The “will of God” – what God wants for us, what God yearns for us to be – has always been for us to:
* Be Free and Independent
* Think
* Be Curious
* Be Intelligent and Wise
* Value Knowledge over Ignorance and Compassion over Knowledge
* Be Creative
* Grow and Mature
* Live Long Healthy Satisfying Lives
* Live Non-Violently Without Vengeance
* Be Hospitable
* Be Generous
* Do No Harm
* Heal and Reconcile and Rehabilitate
* Be Good Stewards of all Resources
* Live Here as One Family
* Live in Loving Relationship with God
* Be Transformed through Resurrection
* Be the Kingdom of God

Our spiritual ancestors saw God as "a capricious God of death, war, destruction, murder, violence, oppression, retribution, vengeance, hate, and conditional acceptance."

My position is that God was never that way. "God has always been a consistent God of life, peace, creation, healing, reconciliation, liberation, resurrection, transformation, love, and grace."

This is also with the understanding that the faith stories of our spiritual ancestors were written by the people of that time for their people of their time - and not for us. For us, much of this written heritage is sacremental, inspirational, worthy of meditation and even instructional - there is much wisdom there. There are also actions and attitudes and advice that are not applicable to us and are to be disregarded or opposed. We do well to consult and study and understand this spiritual legacy. We are not controlled by it, more importantly, we do not have to be limited by it.

The written legacy of our spiritual ancestors has some important basic themes:

* God is singular and yearns for a loving relationship with us.

* God yearns for us to have a loving relationship with each other.

* For these relationships to occur and to mature, God is constantly calling us forward from where we are.

Thus, even though the written legacy of our spiritual ancestors never opposes slavery, we have matured enough to oppose it and declare it immoral and illegal. This is not a contradiction of the written legacy, it is a continuation and extension of it. It is a classic example of how God has called us forward and beyond the written legacy of our spiritual ancestors.

So it is with same sex marriages. For all the impressive legalism of a wandering desert nation, it was a fascist society. When a nation is so controlling of the minutia of daily life that even your sexuality is controlled by the nation for the nation, that "seed" is not to be wasted on non-productive activities (for example, a man lying with a man), and there is ignorance of the range of human sexuality, then that is a part of the legacy that is to be disregarded. When there are attempts to impose such fascist policies on our lives, it is to be opposed.
Gary said…
Some of you have read about God in the Bible, and have made the decision that you don't like him. You would prefer to believe in a God who is like you want him to be.

If there is anyone reading this who is interested in being realistic, in addition to the Bible, I would recommend you read a book by A.W. Tozer entitled The Knowledge of the Holy.
Doug Sloan said…

We are convinced that attempting to take the Bible literally is theologically superficial and incomplete. By reading the scripture in context of its authorship, culture, original language, its place in time and geography and history - we find a scripture that is richer and deeper than just the text-shaped ink on the page. Literalism is scripturally de-meaning - it removes the true meaning of the scripture by deliberately ignoring the deeper and richer meaning of the scripture. Consequently, literalism yields a theology that is abusive towards the scripture and people. Literalism seems to have a strong tendency to promote fear over love, exclusion over inclusion, authoritarianism and oppression over wisdom, intelligence, independence, and community.

We reject and renounce the fear and intimidation that so often accompanies literalism. We have spent decades teaching our children that God is love and that "Jesus loves the little children." Guess what? The kids get it and are running with it. There will be same-sex marriages, there will be women in all aspects and corners of ministry and church administration, and there will be a leaving behind of theocratic authoritarianism and its fear and oppression and exclusion and living for a nebulous future and emphasis on belief to be replaced by a spirit of love and freedom and inclusion and community and living the Good News as the Kingdom of God here and now.
Gary said…
Doug Sloan,

Since God is not what you imagine him to be, you are an idolater.
John said…
If one chooses to interpret Scripture literally, I am OK with that, provided that interpretation results in the discernment that the paramount obligations of children of God are loving kindness and forgiveness, and that God is especially averse to coercion and violence between humans.

Any interpretation of Scripture, literal, metaphorical, or otherwise, which fails to discern and convey these truths is false and abusive to the text.

Doug Sloan said…

Thanks for proving my point by not providing any theological rebuttal, just name calling.
Gary said…

Calling you an idolater is a theological rebuttal. When someone has a concept of God that is contrary to what the Bible reveals about God, like you do, then they are an idolater.
Doug Sloan said…
When something other than God has been given an absolute status, then that is idolatry. Faith without a questioning spirit is idolatry. Having so much reverence for the scripture that we assume to have the authority to tell others how to live – is an act of idolatry. Holding the scripture in such high esteem that we assume to have authority to tell others what to believe and what not to believe – is an act of idolatry. Raising the scripture as an indisputable source that grants us authority to delineate how others can and cannot behave – is an act of idolatry. Dogmatic belief in the scripture or the authoritarian use of the scripture is idolatry and is not an act of faithfulness.
John said…

Actually, Gary's idolatry is not of Scripture per se, but of his wooden interpretation of it.

David Mc said…
Anyway Gary, does your church drum up much "business" with those hateful signs and fire and brimstone? You can catch more Christians with honey.

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