Talking Prop. 8: Of Rites and Rights

The striking down of Proposition 8 in California comes for many as a welcome decision in the battle for marriage equality and equality for all people. For others, it is, in a word: “demoralizing.”

For those of us who research and write about religion, beliefs and the people who hold them dearly, the written ruling by Chief District Judge Vaughn R. Walker (an appointee of President Reagan) holds important implications not only for marriage, but also for the interpretation of the role of religion and morality with regard to laws of both state and nation.

RD Contributors Rev. Candace Chellew-Hodge, Rev. Peter Laarman, and I have watched the unfolding of the Proposition 8 Case intently, and we wanted to have a “virtual” conversation about the important takeaways for the RD reader. At this writing, the proposition has been struck down, a Notice of Appeal has been filed, and the State of California and its citizens await the judges ruling with regard to the resumption of same-sex marriages. It seems certain that the appeal will, in all likelihood, reach the Supreme Court—and for that reason among others, this remains an important landmark case to watch.

I’d like to start out by asking Candace to discuss how religion has been a powerful obstacle for gays and lesbians, and to think about the implications surrounding Judge Walker’s discussion of gender roles. Peter Laarman will follow by discussing Judge Walker’s assertion that the belief in the difference (and inferiority) of same-sex couples is a belief formed solely by religious and moral ideas and will also comment on the contest between belief in the rule of law—a belief that self-adjusts—and fixed religious beliefs about what is right and “given.”

I will close the discussion with observations about the backlash from proponents of Proposition 8, some musing about their future role in the appeal, and a reflection on why The President of Change can’t change his mind about same-sex marriage.

–Anthea Butler


Candace Chellew Hodge: An Evolution in the Understanding of Gender

“Which one of you is the man?”

This is a question lesbians hear often.

“There is no man,” I reply. “That’s sort of the point.”

But, this idea, that there must be a “man” and a “woman” in all relationships is a major stumbling block for many people faced with recognizing gay and lesbian relationships. The notion of gender roles within relationships—especially marriages—is engrained in our culture. More than that, it is engrained in our religions; not just Christianity, but in Judaism and Islam as well. It is ordained by God that woman is man’s “helpmate” and not his equal.

This is often at the heart of the opposition to marriage equality for same-sex couples. People wonder, without hesitating, “Who is the man?” or “Who is the woman?” It boggles many minds to think that a marriage could be egalitarian: a union of equals where both may do the dishes or mow the lawn or fix the car, or do the laundry. “Women’s work” and “men’s work” often blur, depending on the genders in the relationship. For many, such relationships do not compute, and for still others, such relationships are an abomination.

In his ruling striking down Prop. 8 as unconstitutional, Judge Vaughn Walker takes a mighty axe to that gnarled tree of marital gender roles and brings it down in just a few chops.

“Marriage between a man and a woman,” he writes in his findings of fact, “was traditionally organized based on presumptions of division of labor along gender lines. Men were seen as suited for certain types of work and women for others.”

Later, in his conclusion of law, he writes that over time marriage has moved away from a gendered institution into a union of equals and “toward an institution free from state-mandated gender roles.” Such a move, he writes, “reflects an evolution of the understanding of gender rather than a change in marriage.”

This is an important move on Judge Walker’s part, since those opposed to same-sex marriage accuse gays and lesbians of wanting a “change in marriage.” Instead, Walker’s decision is a complete refutation of the stereotypes (both social and religious) that the gay and lesbian community has had to labor under for decades. Instead of seeking a “a new right,” Walker makes it clear that gays and lesbians really seek the same old “rite” that opposite-sex couples seek:

To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy—namely marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriage.

And it doesn’t matter who takes out the trash, the marriage is the same whether the couple is of different sexes or the same sex. Walker’s brilliantly written opinion destroys the stereotypes about gays and lesbians that have been proffered by opponents for decades—and unfortunately taken to heart by a large portion of the voting public.

One stereotype is that gays and lesbians cannot form long-lasting relationships, instead hopping from bed to bed. Walker finds: “Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.”

Another stereotype is that same-sex marriages will somehow decimate the whole institution of marriage, but Walker finds: “Permitting same-sex couples to marry will not affect the number of opposite sex couples who marry, divorce, cohabit, have children outside of marriage, or otherwise affect the stability of opposite-sex marriages.”

Oh, and about those children, Walker addresses the stereotypes that gays and lesbians are child molesters and would make horrible parents. Walker finds: “The children of same-sex couples benefit when their parents can marry.” He also asserts evidence that “the gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent.”

Walker most forcefully dispels the religious belief that “gay and lesbian relationships are sinful or inferior to heterosexual relationships,” and asserts that such beliefs harm gays and lesbians. Walker notes that such arguments were also made in the 1950s in the fight against interracial marriage. They are as worthless a legal argument now as they were then.

The utter and complete denial by this ruling of all the stereotypes trotted out by marriage equality opponents has been so devastating that they are now left with only one argument: marriage is not a right guaranteed in the Constitution, and must be left to the states. As Randy Thomasson, president of the Save California organization explained:

The opponents of man-woman marriage claim Prop. 8 is unconstitutional. Yet there’s nothing about marriage in the US Constitution. Therefore, under the 10th Amendment, marriage laws are up to individual states. Also supporting Californians’ positive vote for Prop. 8 is Article IV of the Constitution, which requires states to have a government run by the people, specifically, “a republican form of government.” And despite enemies of man-woman marriage trying to morph the Constitution’s references to “liberty” and “equal protection” into a declaration of homosexual “marriages,” these words in the post-Civil War 14th Amendment are about giving former black slaves the same legal rights as white freemen—it’s not at all about marriage or even about couples.

Before I make my point, let me say this in response to Mr. Thomasson: Those who want marriage equality for gays and lesbians are not “opponents of man-woman marriage.” We don’t want to end your right to marry, we are not “enemies” of opposite-sex marriage, but instead seek to enjoy the same rights as those in a “man-woman” (never a “woman-man,” mind you) marriage. That’s just plain old fearmongering.

Okay, on to my point. The fact of the matter is, however, that the right to marry is covered by the Constitution under the Due Process Clause of the 14th Amendment, and has been reaffirmed as such in several US Supreme Court cases quoted by Walker, including Loving v. Virginia in 1967, and Cleveland Board of Education v. LaFluer in 1974 in which the majority wrote: “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” The law is pretty clear that marriage is a right guaranteed under the Constitution.

Yet, precedent doesn’t hold much water among opponents.

“This is a classic case of judicial activism,” said Mary McAlister, senior litigation counsel for Liberty Counsel. “The Constitution is unrecognizable in this opinion. This is simply the whim of one judge.”

Yes, just one judge, backed by years and years of precedent.

I’d argue further, but I have to stop now and do the laundry before we get ready for church.

–Candace Chellew-Hodge


Peter Laarman: The Naked Truth

Writing in my organization’s newsletter last week, I called Judge Walker’s ruling a “civics lesson” for these times and urged our folks to read and reflect on it. I do think the reverberations will be broad and deep. The New York Times editorialized on Thursday that these 17 words from the ruling might someday be recalled as historic: “Moral disapproval alone is an improper basis on which to deny rights to gay men and women.”

I think what might become equally memorable is Judge Walker’s very clear statement that the sole source of this moral disapproval is religion and traditional morality. He wrote, “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.” (emphasis added)

Here the judge speaks the naked truth, so to speak, about bad religion bumping up against what we know today about the nature of same-sex attraction, the stability of same-sex relationships, and the effects and effectiveness of same-sex parenting. Bad religion cannot withstand the impact of a collision with empirical reality. Not legally, anyway. And much of the difference between bad religion and enlightened faith always comes down to whether believers can integrate new information without their heads exploding.

Exploding heads is exactly what we now see among the pro-8 leaders, it goes without saying. They are left stammering and gibbering in much the same way that family values champion David Blankenhorn was left stammering and gibbering at the trial, as the judge systematically demolished his “findings” about the superiority of opposite-sex parents.

What I mainly take away from the ruling is how little understanding of Constitutional government there actually is among today’s religious and social conservatives and how desperately our whole country needs a deep-level civics lesson. I heard one leader of the pro-Prop. 8 group here in California sputter on the radio about the judge “trampling on the plain words of the Constitution,” and of course there are tons of dismayed conservatives now trying to say that the framers took for granted that marriage would always be solely between a man and a woman.

In the face of this, we must point out that the framers (most of them) also took for granted that the ownership and exchange of human “property” would remain in place—a fact that later caused William Lloyd Garrison to denounce the Constitution as “a covenant with death and an agreement with hell.” My point here is the obvious one: Constitutional government is self-correcting over time; the framers clearly wished for this and anticipated it, even though they could never have foreseen how such corrections would, over time, upend their own traditional ideas and prejudices.

It’s anyone’s guess how this plays out now. As Anthea notes, the president should actually lead the nation’s civics discussion in the wake of this historic ruling, but we’re not holding our breath. My fear is that this will lead to new heights of vituperation and agitation against “activist” judges and against courts that are deemed to be “out of touch” with popular beliefs and values (which, of course, is what courts are sometimes supposed to be under the Constitutional system). My hope is that even some people who have doubts about same-sex marriage will gain new respect for the majesty (there’s no other word) of the law.

I mentioned the Constitution’s onetime enshrinement of chattel slavery. We should observe with some delight, I think, that nearly every domestic human rights advance over the past century and half, including Judge Walker’s ruling, has hinged on the 1868 amendment that decisively embraced equality for formerly enslaved Americans—the 14th Amendment, whose first section reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

History doesn’t repeat itself, but it does rhyme, as Mark Twain is supposed to have said. These days there’s a contemptible move underway among top Senate Republicans (McConnell, Graham, McCain, Grassley) to hold Congressional hearings to “look into” the 14th Amendment’s guarantee of citizenship to anyone born in America. They’re playing ugly politics with anti-immigrant feeling.

They won’t get far. However fuzzy and vague most people’s recollection of the Constitution may be, and however desperate we are for a civics renewal at this point in our history, there’s still an important residuum of understanding that “equal protection under the law” means something important. It’s our job in the progressive religious world to build on that residuum—and to show how the equal protection principle is so much more “of God” than any lingering prejudice about who is worthy to walk down the aisle of a wedding chapel.

–Peter Laarman


Anthea Butler: Going to the Chapel

For the coalition of conservatives, Mormons, evangelicals, black churches and others who supported Proposition 8, the ruling shatters many of the specious arguments put forth by their “witnesses,” David Blackenhorn and Kenneth P. Miller. When a judge builds most of his ruling on the shoddy work of the witnesses who were supposed to represent the wishes of the people of California, it is laughable, if not for the fervor that groups supporting Proposition 8 represent. Previous talking points opposing same-sex marriage look to arguments based on morality to support marriage between a man and a woman. Judge Walker firmly dismantles this argument in his ruling. What I applaud Judge Walker for, however, is showing the absolute naïveté of “proponents of marriage.” By providing weak, unsupportable arguments by “experts,” the “one man, one woman” marriage movement has hit its biggest wall yet: the inability to realize that perhaps belief, after all, just doesn’t make it so.

For the members of this coalition of the weak-minded, the scramble begins to ready themselves for an appeal. The Family Research Council’s press release headline after the ruling read “FRC Criticizes Court Ruling, Warns against the Roe v. Wade of Same-Sex Marriage.” Talk about a thinly-disguised dog whistle. That’s one way to rally the troops. Speaking for the black church, Bishop Harry Jackson, senior pastor of Hope Christian Church in Bellville Maryland, (yes, on the East Coast) and a figure on the religious right scene, weighs in from the black church pulpit on the other side of the country to express his outrage about “the implicit comparison Judge Walker Vaughn made between racism and opposition to same-sex marriage is particularly offensive to me and all who remember the reality of Jim Crow.” Please. Here’s the problem: long before Jim Crow, black slaves didn’t have the right to get married either. Mormons also issued as statement, outlined in Joanna Brooks’ post from last week.

What is most infuriating to me, however is President Obama’s stonewalling of the issue. He of course, is allowed his personal viewpoint, but the “change we can believe in” does not extend to marriage rights for same-sex couples. When the ruling was issued, David Axelrod appeared on MSNBC, stuttering about how the president opposed Proposition 8.

Of course, this is no news to most people who have watched the president dancing around the issue, showing his support of civil unions but not of gay marriage. All of this dancing, however, stems from the president’s apparent desire to be “Mr. Respectability-in’Chief.” The presidential rhetoric regarding sexuality has always been about “responsibility” and trying to regulate sexuality according to Christian religious norms; fascinating for a president who doesn’t attend a church regularly. It is also interesting to remember that many of the conversations the president has had with African American groups or churches have been about fatherhood and familial responsibility. Clearly, he is of the one man-one woman marriage camp.

Sadly for him, the right is never going to embrace him, because they aren’t sure about his birth certificate—never mind his being black and all. Now, the worst thing he could possibly imagine has happened: same-sex marriage will most likely be argued in front of the Supreme Court, with two women Justices he appointed (about whose sexual orientation the press seems obsessed). Somehow, I don’t feel sorry for him.

While thinking about what I would write to close this piece, I’ve been hearing the strains of that song “Going to the Chapel of Love” first sung by the Dixie Cups in 1964. What is amazing about that song is that there is only one gender reference in the lyrics, and even that is sort of ambiguous:

Bells will ring, The sun will shine
(whoa-whoa-whoa) I
ll be his
and, He
ll be mine.

That I could be another guy, you know.

I’m sure a lot of my more conservative Christian friends are going to read this and wonder how could I be happy about the ruling overturning Proposition 8. Well, I can truly say that I am. I want people to be happy. As someone who spent quite a bit of time of her early adult life wishing she could get married, and now is quite happy that she is not, I certainly want the chance for everyone to have the same right to be blissfully happy, have a family, and slug it out like everyone else.

A vote and a Constitution that doesn’t speak to marriage as a right should not stop someone from declaring their love in the way that they best know how. 

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