Amazed, But Not Amused

Wow, where do I begin? The State of Utah filed its brief, outlining the State’s position on denying same-sex marriage rights in Utah, on Monday, February 3rd at 11:30 PM. (A scant 30 minutes before deadline.) I’ve spent a good part of yesterday and today reading the brief, looking up references, making notes; and I must admit my amazement. I’ve listed the major points, as I see them, here; and I have added my own comments. If you want to download the brief, it is available here: http://www.scribd.com/doc/204554071/State-of-Utah-ban-on-same-sex-marriage-brief#download, you do have to create a sign in for Scribd.com, but it is free. All page references made refer to the brief as submitted to the court.

What happens if Utah allows same-sex marriage, on an equal footing with opposite-sex marriage?
“Same sex marriage creates. . .(2) a risk of increased fatherlessness (and motherlessness), with all the emotional, social, and economic damage that has been shown to create.
(3) A risk of reduced birthrates, with the demographic and economic crises that could bring.” (Pages 2-3)
These are certainly interesting viewpoints. I would like to see the peer-reviewed papers that create both of these positions; none were cited in the brief. I fail to see how the presence of two loving committed adults in a relationship creates an increased risk of fatherlessness or motherlessness for the children. How will allowing same-sex marriage reduce the birthrate? If same-sex marriage is allowed, will opposite-sex couples stop creating children? That is an extremely doubtful outcome! Should same-sex marriages be denied, it is highly unlikely that the individuals involved will decide to engage in opposite-sex marriage and procreate. It is much more likely the participants will simply choose to cohabitate, without the legal benefit and protection of marriage. The two terms, fatherlessness and motherlessness, really? Who created those terms?

The voters in the general election held in November of 2004 passed Utah Amendment 3. Article 1, Section 29 of the Utah State Constitution now reads:
“(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic unions, however denominated, shall be recognized as a marriage or given the same or substantially equivalent legal effect.”
I have covered this, in depth, in a previous article. Suffice it to say, due to all of the uproar and rhetoric on both sides, our Governor and some in the legislature are now openly talking about allowing “civil unions” for same-sex couples, which they would not consider before. It’s too late for that, Governor. The horse has left the barn, at a gallop. The point the Governor and his supporters are not accepting is that civil unions do not provide all of the benefits accorded to married couples, as per existing federal and state laws. Separate but equal has been tried before, it failed then and it will fail now. Additionally, providing now for civil unions would invalidate paragraph 2 of this section, and as that is a constitutional change, it would have to come before the voters.

Under a section titled “Summary of Argument”, the State argues, among other things, that:
“. . . maintaining the man-woman definition increases the likelihood that children will be raised by their biological mothers and fathers-or at least a mother and father in intact families.” (Page 26)
I cannot follow that argument; if a heterosexual couple is raising their children now, how will allowing same-sex marriage decrease the likelihood they will continue to do so? Is the State saying, if we allow same-sex marriage, fathers or mothers in existing marriages will run off to be with a same-sex partner? Personally, I do not think so. I do not think it will matter to the parents at all, I cannot see same-sex marriage destroying any existing marriages/relationships. Characteristically, Utah is again tilting at windmills.

“. . . maintaining the man-woman definition helps to insure adequate reproduction by parents willing and able to raise their children in stable homes. . .The state has a compelling interest in ensuring adequate reproduction. . . ” (Page 27)
It is a biological fact that procreation requires involvement of opposite sexes. However, I do not understand how allowing same-sex marriage will reduce adequate reproduction by opposite-sex parents. Furthermore, what is the “compelling interest” the State has in ensuring adequate reproduction? The decision to reproduce, or not, belongs to the prospective parents, not to the State. Is this a behind the back maneuver to outlaw birth control in Utah? Could the State be saying, you must reproduce or your marriage is not valid?

“And although sex between men and women naturally- and often accidentally-produces children, it does not necessarily produce stable families dedicated to protecting and nurturing those children” (Page 52)
Well, here is a statement I can understand and agree with. Producing children does not mean a stable relationship, not by a long shot. Given the current number of single parent households in Utah, either because of divorce, desertion, or lack of commitment on the part of either parent, I think this statement is a no-brainer. My real question is, what does this statement have to do with the issue at hand, that is, same-sex marriage?

“Because of its critical social functions, marriage is also one of our most important social institutions.” (Page 53)
“Marriage (n): the state of being united to another person as a usual contractually relationship according to law or custom” (Merriam-Webster) It is indeed one of our most important social institutions, and as such, how would the State benefit by not allowing individuals to marry the person they wish to contract with? When two people decide to marry, to form that contract, they are formalizing their joint desire to enter into a long- term commitment to each other, for better or for worse, as the saying goes.

“. . . the law often supports social institutions, in order to give them formal recognition, bring legal and administrative arrangements into line with them, facilitate their use by members of the community who wish to do so, and encourage the transmission of belief in their value to future generations.” (Pages 55-56)
Let us then allow formal recognition of same sex marriages. Let those who wish to marry, to make a contract with another person, do so without segregation by race, creed, national origin, language, or sexual orientation. Provide all marriages the same legal and administrative arrangements currently enjoyed by opposite sex marriages. As I understand it, that is at the crux of the argument for same-sex marriage.

Utah has listed seven arguments against “redefining” marriage as the union of two people (as opposed to the current wording, one man and one woman.) The State refers to this as genderless marriage. Here are Utah’s seven arguments:

“First, redefining marriage in genderless terms would break the critical conceptual link between marriage and procreation. . . the redefinition ordered by the district court would tend to encourage more parents to raise their existing biological children without the other biological parent.” (Pages 72-73)
This argument has some serious flaws. What is the critical conceptual link between marriage and procreation? Many couples enter into marriage knowingly without the ability or desire to procreate. Further, the State offers no peer-reviewed documentation or studies that conclude allowing same sex marriage would encourage more parents to raise children without the other biological parent involved. Is the State trying to blame a shadow-figure for the incidence of single-parent households? That bucket doesn’t hold water, we already have children being raised in single-parent households and we currently do not have genderless marriage.

“Second . . . the loss of the State’s clear message in favor of biological mother-father parenting within marriage would likely result in a higher percentage of couples conceiving children without the stability that marriage would otherwise bring.” (Page 73)
I agree that the ideal situation for raising children is a two-parent, financially secure, loving household. The State does not explain how allowing same-sex marriage will cause that “clear message” to be lost. Nor does, or can, the State demonstrate how same-sex marriage will encourage couples to conceive children without marriage. Where did they come up with this argument?

“Third. . . would undermine the existing social norm that often leads parents in acceptable but not ideal marriages to make self-sacrifices and remain married to the parents of their children.” (Page 73)
Ok, sadly, I have heard this one before. The State is encouraging parents to stay married for the sake of the children. It wants parents to remain in a perhaps loveless or tumultuous relationship for the sake of a theoretically existing social norm. To keep up the (false) appearance of Utah as a family-centered state, the State expects and desires parents to remain in a relationship that may be damaging to their mental or physical well-being. This is not just a bucket-load of cattle by-product; instead, it is a whole trainload! All of which having been said, how does this social norm bear on the subject at hand, which is the recognition of same-sex marriage? I cannot make that connection, no matter how hard I try.

“Fourth . . . would also undermine the current social norm (weakened though it may be) that those who wish to have children-or engage in conduct that could lead to children-should get married. “ (Page 75)
Let us remember what this lawsuit is about, the validity of same-sex marriage. These same sex couples want to get married. They want to raise children, if any are involved, in a two-parent, loving household. If anything, they want to strengthen the social norm of being married when raising children. I am beginning to wonder about the validity, and appropriateness, of the State’s arguments.

“Fifth, and most obviously, a genderless definition of marriage would likely increase the number of children being raised by same-sex parents. That could happen because the couple decides to raise together an existing child of one of the partners. Or it could be the result of the conception of a new child through surrogacy or sperm donation.” (Page 76)
For this to be a valid argument against same-sex marriage, the State needs to demonstrate (which they haven’t) how this arrangement would be detrimental to the State, or to the children involved. Previously, the State has argued that is it important for children to be raised in a two-parent household; a two-parent household provides a better environment for the children. Why, then, does the State not want to support marriage? This sounds like circular reasoning, and not very good reasoning at that.

“Sixth. . . it would likely lead to other innovations. . . for starters, if homosexual marriage is OK, why not group marriage?” (Page 77)
Ah, the good old slippery slope again. Let’s all go out to the slide in the playground. Polygamous marriage is not legal under current Federal law, although that law is currently being challenged in federal courts. Polygamy, however, is not the question here. Is the State creating a diversion because they don’t feel they have a strong enough argument in this case? If so, Utah should remember that it had to renounce and outlaw polygamy in order to gain admission into the Union.

“Seventh. . . a court-ordered redefinition of marriage could well lead to its wholesale “privatization”-for example by enactment of a civil union regime for all couples, with religious and other organizations being free to offer the title of “marriage” as they see fit.” (Page78)
The individual(s) responsible for this paragraph needs to go back to law school! In order to be legally married, the couple-opposite-sex or same-sex- must first obtain a marriage license from the state. This license creates a legal, binding contract between the two people; if they wish a religious component to the marriage, they can be wed in a ceremony by a faith that allows that marriage. Conversely, they can be wed by the county clerk, or by a justice of the peace, even Elvis, if they wish to go to Las Vegas. Is the State, not too subtly, suggesting that marriage require a religious component? Given this is Utah we are talking about, that is not a big stretch of the imagination.

The State continues to focus on the fertility rates, arguing that:
“By implicating endorsing the adult-centric model of marriage, a genderless redefinition would send a powerful message that it is entirely appropriate-even expected-for adults to forgo or severely limit the number of their children based upon concerns for their own convenience. “ (Page 88)
This argument shows arrogance, sheer unadulterated arrogance on the part of the State. It is altogether appropriate for adults to consider their own circumstances in the decision to have children, and how many children to have. Career, financial, health, and lifestyle choices can and should be an important part in the educated decision to have, or not have children, and in the decision of how many children to have. It is my observation, having lived in this state for almost 40 years, that many people feel it is their (religious) duty to have children quickly, and frequently, regardless of their ability to support the children, or their personal desire or physical/mental condition to have children. This “duty” can, and in some cases does, cause severe social/economic stress on the parents, and on society as a whole. Our overcrowded, under-funded educational system comes to mind, but that is a discussion for another day.

“Preserving Utah’s marriage definition furthers the State’s vital interest in accommodating religious freedom and reducing the potential for civic strife.” (Page 90)
I believe we have finally arrived at the core of the State’s position. The very predominant religion in the state of Utah is The Church of Jesus Christ of Latter-Day Saints; the Church does not accept or condone same-sex relationships or marriages. Its position is that homosexuality is a sin, and a choice; a choice that can be “corrected” by faith, prayer, fasting, and marriage to a person of the opposite sex, with procreation following. The Church maintains this position regardless of the mounting scientific evidence that homosexuality is a biological factor that is decided while the child is in utero; that it is not the “fault” of the mother or the father, and that it is not genetically related.
No logical, thinking individual could or should deny the Church its right to its beliefs. Nor will that same individual deny the members of the Church their right to practice their religion, insofar as that practice does not conflict with the rights of those who do not believe the same.
In reference to the quote above, the State does have a vital interest in promoting religious freedom and reducing civil strife. That religious freedom, however, is a double-edged sword. The sword does protect the right of a church, and its members, to believe and practice as they wish. It also protects others in the same fashion; that is, they have the right to believe and practice, according to their own personal dictates and conscience.

The narrow issue in this matter before the court is civil rights, or equality. There are no less than 15 Supreme Court decisions that have delineated marriage as a civil right, beginning in 1888; the latest decision was US vs. Windsor. (The following quote is from Lawrence vs. Texas., 2003)
“[O]ur laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”(Lawrence vs. Texas)
The majority of Utah’s citizens are members of the LDS church, and support and participate in the Church to varying degrees. That is fine, but majorities do not decide or control civil rights. The laws and courts of our nation are there to protect the civil rights of minorities as well as majorities. In this particular matter, it is the civil right of homosexual persons to be married, the same as heterosexual persons, and to enjoy the rights, benefits, and responsibilities of marriage, that is under discussion. This case is not a discussion of procreation, though the State would like to make it that. Nor is it a discussion of morals, because morals are as individual as you and I are. It is a matter of the rights of individuals to marry as they choose, and to enjoy the protection and benefit of marriage.

After reading and studying this brief, I have several opinions. (Surprise!)
First, the State has failed to show why or how same-sex marriage will harm the State, its citizens, or the children. In constructing this document, the State refers to the incidence of single-parent families, and attempts but miserably fails to connect same-sex marriage to single-parent households.
Second, the State has raised the specter of same-sex marriage causing a decrease in the number of children born in Utah, without demonstrating causation. This thinking flies into the wall of reason, and falls hard to the ground. I hope that it will stay there. It certainly does not deserve reincarnation.
Third, the State has claimed, without justification, that same-sex marriage will increase the number of children born of causal, non-committed sexual congress. Excuse me, how did the “crack legal team” hired by the Attorney General come up with this idea? Marriage will lead to an increase in childbearing casual sex? Anyone following that road deserves to drive off the cliff.
Fourth, and in my opinion most dangerously, the State has tried, however subtly, to inject majority religious opinion into secular law. I know this is Utah, but come on; we are in the 21st century, not the dark ages. Religion –any religion-does not belong in secular law!

Finally, patient reader (I know this has been a long document, even for me), I believe the State has wasted good money on this brief, and indeed is wasting money on this entire case. That is money that should go to education, for education is the best defense of civil rights, and of liberty. I also believe that while this case is about Utah law, the decisions reached will, long-term, effect the entire United States of America.

I hope you have enjoyed this discussion, I know you have opinions that may agree or disagree with mine. However, that is the beauty of America, we are all entitled to our opinions, and I would like to hear yours. Please leave your comments below.
Thanks for reading, as always!

One final housekeeping item: In this article, when I use the term marriage, I am referring to the arrangement between two consenting adults, of legal age to enter marriage.

Sources:
For Utah’s brief: http://www.scribd.com/doc/204554071/State-of-Utah-ban-on-same-sex-marriage-brief#download

For Lawrence vs. Texas: http://www.scribd.com/doc/79449919/Lawrence-vs-Texas