Saturday, December 28, 2013

Three Reflections on Same-Sex Marriage in Utah

Since last week, I have been trying to sort out my thoughts on the beginnings of same-sex marriage in Utah--and at about 10 pm on Friday 27 December, I sat down to write them. It is now 5:06 am and I have just finished my first draft. Which I have decided to publish as is, with apologies for any typographical errors, incoherent passages, and missing hyperlinks to studies I meant to go find. Apologies also for my failure to condense my thoughts down under 3,000 words: 

1.

 Last Friday, a federal court decision by district judge Robert Shelby made Utah the 18th state to recognize committed same-sex relationships as marriages. By now, you have probably either read—or carefully ignored—a wide variety of reactions to that news.

 Because I have deep-running feelings about the issue, I have tried to keep some track of what the ruling has meant to individual people. I've been hoping to sense the threads in the rope of this debate, you could say. I’m trying to have eyes to see how the noble sentiments on each side are intertwined with the ugly, the insightful bound together into one taut cord with the shallow and the smug.

The practical joy I've seen so many express over relationships solemnized is tied together with the arrogance of those who hold the ruling over the heads of social and political opponents. The honest concerns about the ruling I've seen and share lie side by side with raw expressions of alienating anger.

Maybe there’s no other way this could go. The debate over same-sex marriage is a debate over the nature of family, and for many of us, families are more important than the governments they interact with. If you hold a more traditional view of marriage, you probably feel like your voice has been shoved out of the conversation over a part of the social contract you take more seriously than the Constitution itself. If you hold the emerging dominant view of marriage, you probably feel sick to the stomach of people who balk at giving legal recognition to committed love as the most basic bond human relationships are woven from.

I would describe myself as a marriage traditionalist. If you would describe yourself as an advocate of marriage equality, you may have already put that last word in scare quotes—“traditionalist.” You may feel, as someone recently told me on Facebook, that traditionalists like me “need to be rejected, and quickly, before their tired worldviews do any more damage than they already have.” Your metaphors for me may be drawn from a long list of historical bad guys: Nazis, segregationists, religious extremists. Or you may just think of me as an everyday, run-of-the-mill self-righteous jerk.

I do not, of course, see myself in those terms. I see myself as a fairly sincere and honest person with a long term concern for the place of family in our culture and law. I see myself as an heir to a long legacy of Abrahamic values, and I believe those values have blessed the world far more than they have harmed it. I see myself as someone willing to stand up for difficult truths about what is sustainable and what is not.

Maybe I’m wrong about marriage. Maybe my values and I really can be trampled over with no social cost. 

Or maybe I’m wrong about myself. Maybe I defend traditional marriage primarily to feel holier-than-my-generation, or because I’m lacking in basic empathy, or because I got started by my mother and then became more interested in defending my position than in doing good.

God alone knows the truth about the world and our hearts. If I am wrong with good intentions, may God forgive my wrong conclusions. And if I am right but with wrong intentions, may God save me from my pride. 

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2.

Judge Shelby’s ruling is currently being appealed to the Supreme Court. There is a fairly high chance the Supreme Court will hear the appeal, and a pretty low chance they will overturn his decision—especially with so many marriage licenses already issued. I’m fairly convinced that same-sex marriage is in Utah to stay, and the arguments I have against Shelby’s legal reasoning aren't going to change that. But I’m going to try to lay out where I stand through dialog with his ruling anyway.

I believe that a culture of marriage ought to be built around customs of procreation and child-rearing within the relationship between husband and wife.

In his ruling, Judge Shelby dispatches this notion by pointing out that we don’t give people fertility tests before we allow them to marry. If I really believed marriage was about procreation, he says, I wouldn't want the state to recognize old women’s relationships as marriages. And since I have not objected to postmenopausal marriages, he says, it’s clear that I actually share his view— that marriage is simply a loving, intimate relationship two people form and society has a fundamental obligation to recognize.

If I could respond, I might point out that not all couples start their marriages with love. So by his own reasoning, love is not an essential characteristic of marriage. And that we allow people like prisoners to marry without any immediate hope of practical intimacy. So intimacy must not be important either. I might go on to use counter-examples to show that every definition of marriage falls apart once you try to whittle down the definition of marriage through counter-examples. And I might point out that rational judges in the past, recognizing that marriage is more a set of valuable cultural norms than an algebraic legal formula, have ruled that marriage can have procreative norms without demanding fertility from every participant.

If I could respond to Judge Shelby, I might go on to point out that one difference between same-sex couples and infertile couples is that the members of most same-sex couples are individually fertile. While a postmenopausal women is unable to fulfill my stated central goal for marriage by conceiving and bearing a child within a marriage relationship, she is equally unable to undermine my stated goal by conceiving a child outside of it. But the experience of some of the first same-sex couples to win marriage recognition suggests that marriage actually makes them more likely to produce biological children outside of their marriage.

 Take the example of Andrew Solomon. He and his husband, John, are not able to have biological children together because they are both men, but each is biologically capable of procreating with a woman. The recognition of their relationship as a marriage seems to have heightened their interest in procreation, possibly because the culture of marriage still has strong procreative norms, and they have now both fathered children. John has been a sperm donor twice: once for each partner in a lesbian couple he knew through work. Andrew has fathered two children he also has the legal rights of fatherhood for. His biological daughter was conceived when he gave sperm to a divorced female friend who wanted a child. That daughter lives with her mother and her mother’s new husband, but Andrew takes an active parental role in decision-making in her early life. Andrew’s biological son was conceived with a donated egg which was then implanted and carried in the womb of one of the women who had used John’s sperm to produce her own child. The son lives with Andrew and John, who share custody of him. Together, Andrew Solomon refers to this as his “extended nuclear family” of five adults and four children in three states. (The math is a bit tricky, though: if you were to count Andrew’s daughter’s mother’s new husband it’s six adults and if you were to count the egg donor, it’s seven adults and possibly four states.)

Now, I am not saying a state government couldn't choose to encourage the formation of such “extended nuclear families.” But it seems clear to me that Judge Shelby’s assertion that same-sex marriage will not affect the culture of marriage and procreation in any way is naïve even in light of the limited data sets we have for same-sex marriages so far. Same-sex marriages are not interchangeable with post-menopausal marriages. The biological realities and their long term cultural implications are fundamentally different.

How did Judge Shelby miss that possibility? Probably because he has thought a lot more about law in and of itself than about culture—and the complex relationships between law and culture.

As it happens, many of the very people whose positions Judge Shelby ruled as having no rational basis have spent significantly more time thinking about the culture of marriage than he has. Recent Pew Research indicates that Latter-day Saints are far more likely than average Americans to rank marriage and parenthood as top life priorities. Utah’s population, as it happens, is heavily influenced by people with a strong culture (by American standards) of marriage and procreation within marriage.

In fact, if we were to assume that there is no God, Latter-day Saint leaders are people who on their own and without any divine help guide a community of fifteen million people with a strong culture of marriage and procreation within marriage. From a secular standpoint, LDS Church leaders ought to be considered among the world’s top authorities on how to maintain such a culture and ought to have a respected voice in the public sphere on issues involving family and procreation.

That is assuming, of course, that government has anything to do with family and procreation in the first place. Is maintaining a culture of procreation within marriage really a rationally legitimate government purpose?

If I were able to sit down with Judge Shelby, I would go over studies that identify family stability as a central predictor of income mobility and family instability as a central predictor of poverty. If there is a legitimate government interest in alleviating poverty, I would argue, measures that nudge people toward procreation within marriage and family stability ought to be on the table.

I don’t wish to embrace any overnight apocalyptic tone toward same-sex marriage, of course. I hardly except Americans to descend into poverty all at once because we shift slowly toward what Andrew Solomon calls "reproductive libertarianism" But I do think Judge Shelby is premature in saying that my concerns have no rational basis.

And it would be nice, as conversations over our culture move forward, if at least three or four Supreme Court justices take advantage of an opportunity to officially agree with me. If just a few people could say in an official capacity that giving people the space to pursue same-sex relationships and merging the norms of those relationships with the norms of traditional marriages are two very different things, and that the people of a given state do have some right to think about how they want to legally recognize different types of relationships.

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3.

I don’t really hope for more than three or four, though. I imagine that five justices have already decided where they stand on the Utah case and may well be mentally preparing their legal rationales for overturning all state laws designed to clarify the definition of marriage as between a man and a woman.

 Where does that leave someone with my views? Should I protest the legal changes to marriage? Should I riot in the streets over the issue? Should I campaign vigorously for the deeply problematic and demographically decaying Republican Party?

 No, thank you.

This particular political and legal struggle is all but over. As a person who cares about the future of marriage, I feel that my energy will be far better used preparing for the next major cultural or legal struggle, which may or may not directly involve same-sex marriage.

I cannot allow my perspective to be reduced to opposition to same-sex marriage. I need to show proactively what my core underlying interests and guiding principles are, and I need to help them become a part of current cultural conversations in a way that will shape the next unforeseen debate.

Of course, I can’t know what that debate will be. But I have a feeling that the following three principles will be continue to be challenged in different ways and that affirming them will continue to have utility:

Principle #1. Biological parents will be accountable to their children; children have a right to responsible biological parents.

The day I adopted my oldest daughter, who is now nine, was one of the best days of my life. But the relationship we share doesn’t relieve her of the emotions she will have to work through or with over the biological father, still living, who hasn’t seen her since she was three.

I believe strongly that children have a right to their biological parents and that biological parents are accountable to their children. In some cases, such as abandonment or serious parental unpreparedness, it is far better for children to be raised by loving and stable adoptive parents than by their biological parents. But it is better still when children are born to parents who are solidly committed to each other and to them. Children deserve that.

There are many ways, of course, to deprive children of stable biological parents. The oldest and most common is for individuals to have children outside of committed relationships. But recent technologies have provided several other options.

I once knew a single woman with serious depression problems who decided to undergo artificial insemination in order to have a child. There was a lot in that woman I admired, but that particular decision of hers devastated me. I have serious reservations about women undergoing artificial insemination out of wedlock.

When I had testicular cancer (shortly after I met the woman who later became my wife), doctors advised me to bank some of my sperm in case treatments affected my fertility. In the process, I had to sign documents giving the sperm bank permission to destroy my sperm in the event of my death—or else to fill out alternate documents providing a beneficiary.

It took a moment for the implications to sink in for me. We have the technology now for posthumous conception. It is entirely possible to imagine some near-future society in which a male celebrity’s sperm is sold for private use after his death. How would we respond if the posthumous use of sperm became a major cultural or legal issue? I hope we would follow the principle that children have a right, whenever possible, to be conceived and raised by committed biological parents.

Principle #2. Fatherhood and Motherhood still matter as distinct roles. Communities succeed when they find the proper balance of guidance and flexibility in preparing the young for these vital roles. 

I believe that Fatherhood and Motherhood matter in two distinct senses. First, I believe there are underlying differences between the ways most men and most women process reality and that each approach lends fathers and mothers a special niche in childrearing. Second, I believe that communities serve the needs of tomorrow’s children best when they prepare today’s children for parenthood and that some flexible form of gender role is a valuable cultural technology in helping pass on essential training to children.

 Around the time the Proposition 8 case reached the Supreme Court, I was privileged to have a detailed exchange of views with an old friend of mine in Ohio who believes strongly that committed same-sex relationships should be recognized as marriages. I had no desire to change his mind on the same-sex marriage issue given his broader view of marriage (which was consistent with the emerging dominant romantic/companionate view), but I did want him to understand how my community values and fundamental understanding of marriage differed from his.

 Naturally, we ended up spending a significant amount of time on the idea of gender roles. He and I turned out to agree that some degree of specialization is positive in a partnership or marriage, and both of us agreed that individual couples needed flexibility to find the right division of responsibilities for their relationship, but we had an important disagreement about how to reach that flexibility. My friend felt strongly that partners should begin to determine their roles after becoming a couple. As a parent, I told him I felt strongly that children should be raised with some gender-based specific preparation and expectations as a baseline for marital negotiations.

That is to say: I am raising my daughter with a clear sense that focusing on nurturing her children is a worthy and important goal, and will likely be a defining responsibility in her life. I am raising my sons with the skills to nurture children but also with an expectation that they will likely be responsible for providing economically for their families.

As I raise my children, I feel there’s a delicate balance to be achieved. What if the basic roles I am teaching them turn out to be poor fits for their life situations? I need to teach them the flexibility to adjust as needed. A relative of mine, for example, found that his specific anxiety condition made it difficult to work outside the home. He and his wife do far better by having him use his talents in the somewhat more contained sphere of nurturing their children during working hours, while her training has been sufficient to provide for their family financially. But there’s a difference between teaching flexibility and teaching procrastination. Assuming adults will successfully choose their own roles without any modelling or preparation strikes me as naïve.

Just as individual parents can strive to find the right balance of preparation, accountability, and flexibility, I think communities succeed when some sort of broad positive roles are available for modeling and adaptation.

Gender roles are under fire, but I’m not prepared to give up on them. Fathers and mothers matter, and they aren’t made starting from the wedding day.

Principle #3. The link between sexuality and procreation is not incidental.

Over the past sixty years, our ideas about procreation and our ideas about sex have been drifting apart. It is now quite possible to have babies without sex, and simpler than ever for a fertile person to consistently have sex without babies. It is easier than ever to use sex for power, for pleasure, to override unwanted emotions, to negotiate identity or to pursue goals of self-discovery without thinking about the creative potential of intercourse.

And yet what have we gained from wide-ranging sexual freedom? It seems to me that anxiety and isolation are the two most common fruits of our prevailing sexual culture.

I believe that human sexuality serves two main purposes: it enables procreation, and it builds and nourishes powerful bonds of trust. Those chemically-fortified bonds strike me as an ideal asset for raising children. Why not restore and strengthen customs that connect the two?

It seems to me that treating sex as primarily about pleasure rather than about bonding creates all kinds of dysfunction. It’s quite common for young couples to prioritize the physical pleasure of sex, which is easier to recognize at first than the trust/bonding chemical effect sexual relations produce. But failing to take the bonding function of sex seriously complicates numerous relationships: in cohabitation situations, for example, the lack of firm commitment coupled with the bonding impulses of sex often seem to create major relationship anxieties that drive partners apart.

It’s also worth noting that the sheer intensity of sexual arousal combined with the wide availability of pornography has made sexual arousal a common form of attempted self-medication for young people with emotional difficulties. In the same way that veterans have often used the physical and chemical intensity of a bar fight to distract them from feeling of anxiety, depression, or loss of control, many people seem to be turning to pornography to override uncomfortable feelings they don’t know how to confront. Like most systems of self-medication, though, pornography typically only delays the emotional problem and creates an addictive pattern in the process. It’s becoming a major health issue.

 All of which is to say bringing the procreative and bonding functions of sexuality back to the forefront of conversation about sexuality strikes me as an important cultural contribution of people with my views on marriage. Rather than focusing on a single issue like same-sex marriage—which appears to be completely out of our influence and control—traditionalists might benefit from stepping back to articulate their underlying values.

We need to watch the culture and do what we can to be involved early in the next major conversations to arise.

34 comments:

  1. Well said, James. If everyone would take as much time to ponder the real implications of these issues as deeply as you do, we'd no doubt solve many problems. Your humble and dispassionate treatment of the controversy while retaining a strong passion for your stance is inspiring.

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  2. Wait, you had cancer? How did I not know this?

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  3. Articulating the impacts in a reasoned conversation is an important part of our cultural responsibility. I appreciate this very much, James.

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  4. While I disagree with several things within this article, I did want to thank you for your well thought out arguments and discussion on the subject matter at hand. It is the only review from a traditionalist (granted, I haven't seen many) that I have read since the ruling that is set out to be a logical review instead of a faith based or emotionally based cry against proponents of same-sex marriage or the government.

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  5. Thank you for articulating more clearly some thoughts I have and also for moving the discussion to a broader place.

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  6. Well done! Even writing through the night, you are quite coherent :)

    I have now read it 1 1/2 times (because I got halfway through and then read it aloud to my husband :) ) We had a good discussion and think you brought up some good points. We agree!

    As my husband sees it, it is essentially an argument about whether marriage should serve the individual or the community. The marriage equality group seems to be saying marriage should mainly serve the individual. Whereas the traditional marriage group (that includes procreation within marriage and raising the children within that marriage) is encouraging serving the community--we need children to keep the community going..without children, no more community..There are some cultures where that seems to be the entire focus and purpose of marriage--babies--and lots of them.

    Of course, traditional (1 man, 1 woman) marriages can also be about serving the individual. My husband heard a man saying he wanted to get married and wait for 5 years before having kids so that they could travel around and such. That also sounds quite centered on the individual and the individual desires.

    To us it seems that ideally we should have a balance between the two. Marriage is about creating the bond of trust between the partners, as you mentioned, as well as procreation, which ultimately serves the couple and the community.

    One of my professors, referring to the effects of same-sex marriages/relationships on children and on society, said that the jury is still out. We don't know yet what the effects will be. We don't really have enough data on it yet. We do, for example, have quite a bit of data on the correlation between single-mothers and poverty..but how same-sex relationships affect children and society--we're only beginning to see. But we _do_ know that marriages between a man and a woman have been successful (also unsuccessful), but I'm still in favor of them.

    Thanks for sharing those great thoughts!

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  7. James, I really appreciate how thoughtfully and eloquently you express your opinions. This issue is no exception.

    I would like to present another point that I feel is often overlooked. We talk about individual vs. community good when it comes to the definition of marriage. I feel that we're approaching that conversation from the top of the iceberg. The reality is that humans were never meant to live the isolated lives that we currently inhabit with single-family dwellings and skill segregated places of work. My belief is that the reason we are facing these issues today is because we have created nuclear families that are dangerously small with the husband-wife-children structure. If we go back 3000 years, members of a community were much more involved in one another's lives and far less segregated than we are today (at least, within the community itself). A homosexual man would still be culturally pressured into marrying a woman, but he would also have opportunities to forge close bonds with other men, therefore meeting the needs for trust and friendship within a same-sex dynamic, whether or not those relationships were physical. But now there are few avenues for developing true deep attachments outside of a marital/small nuclear family dynamic. Is it any wonder that our LGBT brothers and sisters desire for the same recognition in the attachment structure our society has created? I'm suggesting that perhaps the issue isn't that the LGBTQ and "progressive" communities are trying to change society but that our current societal mold encourages the changes they're requesting.

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    1. I agree with you on the idea that changing underlying dynamics are at work--though I don't think you have to go back 3,000 years to see a clear difference. I've blogged before about how the Bible, Shakespeare, and the American 19th century are full of examples of deep homosocial bonds which include physical expressions of friendship/affection which most people are not comfortable with in a non-romantic relationship today. If romance is our only real frame for physical affection, many people crave strong homosocial bonds seem more likely to frame their feelings as necessarily homosexual.

      We'll see how things play out. I remember a friend remarking several years ago that female BYU students seemed far more comfortable with physical expressions of affection with other women than female students at her other school in Iowa--probably because in Iowa, same-gender physical affection was considered romantic, whereas at BYU it was still framed as social.

      I would love to live in a culture with more room for non-romantic same-gender expressions of bonding and affection. We'll see whether we swing back toward that in my life time or whether our fairly binary popular view of sexual orientation keeps us in a place where affection is increasingly framed in romantic terms.

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  8. James:

    Great stuff.

    And...long time no see! Hope you're well - Bryan

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  9. This is an articulate essay, and I appreciate the non-reactionary tone. On the other hand, it's upsetting that the best arguments on this side of the issue almost all lack content and substance --- and I'm afraid that this holds here, as well. The argument is built around a series of social scientific causal inferences, each of which is made either without evidence or on the basis of anecdotes. Unfortunately, anecdotes just don't help with causal inference, and are often misleading.

    Two examples. You give the anecdote of Mr. Solomon. Showing that he got married and had children doesn't actually do the work this argument needs. What is needed is evidence that he had children because of his marriage. The facts of the anecdote preclude such an interpretation, as the childbearing in Mr. Solomon's family network appears to predate same-sex marriage. But even if the timing were right, we would still need evidence that, had marriage been illegal, no children would have been conceived. This seems hard to argue; gay people and lesbian people have had children even when same-sex marriage was a political impossibility, so the causal case is at best probabilistic and messy for an anecdote. But you actually need even more than that: you need evidence that gay men in general, and lesbians in general, have more children on average because of marriage than they would in the absence of marriage. I don't think this is easy to answer, but it's not even tried in the essay above.

    Similarly, the claim that fatherhood and motherhood both matter is an empirical issue and not really a matter for speculative decision-making. Furthermore, it's been intensively studied. A great weight of evidence now suggests that children who are raised in stable homes with two parents have basically the same outcomes across nearly every measurable variable regardless of the genders of the two parents. If we want to push the data to the limits, there is some evidence that children with two mothers have the best outcomes --- but this is relatively weaker than the overwhelming body of evidence that parents' gender mix doesn't affect children. Either some sort of rebuttal of the scientific evidence is needed or the argument on this point falls into a kind of inadvertent denialism.

    Ultimately, I think the argumentative emptiness of this essay is an echo of the emptiness that judges have repeatedly found in the best available evidence and legal briefs against marriage equality. That emptiness, I think, ultimately means something --- especially when the author is as intelligent and articulate as James...

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    1. Thanks for the detailed response.

      Obviously, the individual anecdote of Andrew Solomon's experience doesn't prove anything. Proof strikes me as inherently beyond the scope of a blog post.

      If you look at the eighth(?) paragraph Solomon's article, though, it's clear that marriage and procreation are linked in his rhetorical relationship with John. John agrees to support Andrew as Andrew fathers a child on condition of marriage, Andrew agrees to marriage on the condition that John will support him as he fathers a child for them. To me, that suggests the possibility that classifying same-sex relationships as marriage will lead to more procreation along the same lines. As you say, we would really need data about average effects over the entire population, but I don't think we have that data yet. I certainly don't have access to it.

      As to the question of fatherhood and motherhood as roles: I should emphasize that my legal arguments are in section #2 only, and that section #3 is about the cultural values I plan to emphasize as we transition away from the debate over same-sex marriage while continuing conversations about what a culture of marriage should look like in other areas.

      As a cultural value, I believe fatherhood and motherhood matter. At a minimum, motherhood is still essential as a biological role: we have neither artificial eggs nor artificial wombs. I also suggest here that roles may be helpful at a community level: within my faith community, for example, part of the structure for preparing children for parenthood is through preparation for fatherhood and motherhood.

      I suspect that fatherhood and motherhood matter in other ways we haven't yet clearly measured, but that's a discussion for another day.

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    2. Jamies, I think I disagree with your reading of the relevant paragraph in the Solomon article. It seems to me that marriage is presented as a bargaining chip in that couple's negotiations about whether to jointly parent a child, rather than as a cultural enabling condition or symbolic motive. In any case, the point remains --- at least two children had been biologically fathered by one of these men before this issue even arose. My experience is that you can always find a case of anything in human life, so showing one gay couple who used marriage as a quid pro quo for reproduction isn't much.

      More generally, I agree that you shouldn't have to supply proof in a blog post, or indeed much of anywhere else. Proof is usually out of human reach. On the other hand, while you and some comments by others characterize this essay as being about values, I don't think it is. A pure values statement would say something like: heterosexual couples are an end in themselves, but same-sex couples are not. This would be pure preference on the part of the speaker --- and the reader would either agree or not.

      Instead of a pure values assertion of this sort, you have made a case built primarily around causal claims. In other words, this essay (whether you intended this or not) has to be read as social science and not as an essay on values. Since the social science evidence on these questions that I know of mostly suggests that the causal claims you assert are either nonexistent or in some instances backwards, the essay needs to grapple with evidence. That is to say, your views are either based on insights that would be pathbreaking in some areas of sociology and psychology or they are deficient. Readers should be aware of this situation --- I don't want people to walk away from this essay assuming that the causal links it presupposes are not in tension with the best available scientific evidence.

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    3. Thanks again for the response.

      It may be helpful to articulate which causal claims are at issue here and which social science is relevant.

      It seems that the central causal question at issue in our comments here is:

      Will recognizing same-sex relationships as marriages create an incentive for procreation outside of wedlock?

      My argument is that there is reason to believe it will, in the following way: 1) marriage is accompanied not only by legal rights and obligations, but also by social norms 2) even though procreation is not a legal condition of marriage, the prevailing social norms of marriage include the conception of children 3) it is reasonable to believe that same-sex couples may follow those norms by conceiving children and 4) that given our current technology, such children are necessarily biologically descended from one member of the couple and one parent outside the couple.

      Which of those four components do you see refuted in research?

      My sense is that there's broad consensus about #1.

      #2 is certainly not as strong as it once was, but it does seem like a few years after marriage, people are comfortable asking about when children will be on the way. I'd love to see research on this point.

      #3 seems to be where we have the strongest disagreement. I think it's quite likely that the norms of marriage will increase the number of people in same-sex couples who want to conceive children. My evidence for this is admittedly anecdotal and debatable, but I'm not aware of any research that shows that giving the name "marriage" to committed same-sex relationships has no effect or a deterrent effect on the desire of individuals within such unions to procreate. And there is a lot of research on how people tend to follow the narrative models they admire. For instance, in Brazil the number of children born to each family dropped drastically in various states as cable TV was introduced, likely because telenovella families tended to have one or no children. The new narrative norm changed behavior. By analogy, I think we have reason to suspect that marital norms which encourage the conception of biological children will result in more same-sex couples wanting to conceive children the more firmly entrenched those narrative norms become.

      #4 seems indisputable to me.

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  10. Athie, I also appreciate your continuing the conversation in a civil tone, which I hope to emulate.

    Now I don't know the specifics of your perspective, only the few glimpses you gave above. They're reasonable, but wholly insufficient for me to give your position the kind of thoughtful response you gave James.

    Still, I can't help but feel that you and James (and the best articulations of the larger positions you two represent) are talking past each other. I feel this way because James' point isn't really about same-sex marriage but about the nature of the family.

    As a discussion of values, his argument cannot possibly be said to be empty. Variants of those values both fostered civilizations and still inform even pro–same-sex marriage arguments (some more obviously than others: e.g. Theodore Olsen's).

    Most of all, I like the idea James proposes of affirming values rather than identifying winners and losers. No argument can convince everyone, and especially in contentious issues, it's a waste of my time trying to find one. My emotional energy is better spent learning how to treat others with kindness and respect, even if the values that inspire those actions may, ironically, offend others.

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  11. I know this is silly, but I'm sick and a little muddle headed, and the thing that has stuck in my mind here is the concept of an expanded nuclear family. Isn't that pretty much the same concept that gave Hiroshima so much trouble? I don't think "expanded" and "nuclear" co-exist in this universe without making significant ripples in reality. (here, I pause to sniffle and blow.) I think I am in agreement with the person above who suggested that our isolation - all ten year olds in fifth grade, school children living in a world that is is capsulized and separate from their "family" life, corner offices - university "majors" (as though this bit of knowledge and philosophy can be held distinct and exclusive of that one - history without music, science without religion, art all in its own smokey haze) - I think that the family of man has been fragmenting and fraying horribly over the last couple of hundred years and what we are trying to protect is the last, distilled, bit of it. I think that the natural state of the universe is very deeply integrated. But one tiny bit of mis-written code can bring a mighty process to a panting, panicked stand still.

    Okay - going back to the couch.

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  12. Much to ponder about. You brought out many worth while points. It's a tough subject to discuss. I'm having a tough time because I'm very traditional and still believe marriage should be between a man and a woman. At the same time, there big questions about why this is happening. Thank you.

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  13. Thank you for this. As you acknowledged at the very beginning, it's not a perfect article, but it doesn't have to be. We need more people to speak their minds in a calm and civil manner, even if they aren't experts at debating and presenting all the evidence or reasons for their beliefs.
    I would also like to applaud all who left comments up to this point including--perhaps especially--those who disagree with the author's points. Thank you all for being civil while giving your own opinions and pointing out what you agree or disagree with in this post. Topics such as this are too important to let them slip by without joining the conversation, but too sensitive for any good to be accomplished by just being condescending, self-righteous, or insulting.
    Thank you, sincerely!

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  14. I am going to put the word traditionalist in quotes when you say marriage “traditionalist” but not because you “need to be rejected, and quickly, before [your] tired worldviews do any more damage than they already have.” I find that distasteful and childish to say. Rather, I’d put that in quotes because I am unsure what and whose tradition you are referring to.
    This idea of universal marriage as you describe it, between men and women, as some deep, emotional, family oriented bond is absolute fiction. Marriage was for property and inheritance and thus only for those who owned property and wealth to bestow on their offspring. The poor had no property. In fact, for a long time in our western tradition, the poor *were* the property, so what reason would they have to marry? It was exclusively for the rich and the nobility to cement their material wealth or to increase it by marrying someone else with wealth and property. This idea of marriage for anything else is only about 150 years old as it became more common for white men to own property. Which also opens up another can of worms on the “tradition” of marriage because black men only could marry legally after the civil war, that’s when they stopped being property, and even then we see heavy restrictions on who they could marry and it had very little to do with emotion or family but more with the ability for white people to integrate and “domesticate” the newly freed “property” into a separate society. Lots of very interesting work has been done on that topic and how that bleeds into our current society.
    But we are a multi-cultural society, so if we talk about marriage tradition as one man, one woman, in order to raise a family, it is also exclusionary. Several Native American tribes decoupled sex from marriage and premarital sex was not only practiced but encouraged, much to the chagrin of missionaries and the delight of other colonists. Marriage didn’t have to be religious or civil or official or even permanent. It could be a brief public proclamation or two people just moving in together. Wives were exchanged between men (like among the Lakota Sioux), brothers could share wives (Pawnee), and practice various forms of polyandry (especially interesting among the Comanche, where it was so common for men to fall in battle, a man would give his brother sexual access to his wife once married so that in the event of his death, it would be easier for his wife to marry his brother). Why are those not traditions to be respected? Is that included in being a marriage “traditionalist”?
    I mean, if we really look at human history, our most common “tradition” in marriage is some form of polygamy. Polyandry, as mentioned above, was somewhat common among the Comanche Indians and oddly common among the Pawnee, where a boy would reach puberty and an adult woman in the tribe would initiate him into sex, continuing to sleep with him until the boy eventually married. During this time, the boy would serve as a type of junior husband for the woman. It was also common among several Tibetan and Nepali tribes where male mortality rates were high. But polyandry is much rarer than the tradition of polygyny, so common that it spread to your own religion until I believe 1890? It is a much more common human tradition for one man to be married to several women than to be married to a singular female, so why isn’t that part of your “traditional marriage” view?
    I understand that you find the idea of two men or two women getting married uncomfortable and you worry about what it will do to greater civil society etc. I am not saying your opinions aren’t valid or should not be shared with the greater public. But to say that you are a traditionalist is inaccurate because it is not our tradition to be married to someone of the opposite sex, for life/eternity/what have you, in order to build a family. That is a very recent development and, granted, what you have been raised to view as the norm. However, to claim this is what should be and has been the norm is exclusionary of all other cultures and traditions.

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    1. Thanks for the reminder that no tradition is universal to all cultures or times. I am comfortable talking about my tradition without quote marks assuming that people recognize I'm not speaking of all traditions, but some people probably need a reminder.

      That said, I think cultures of male-female marriage as a procreative institution are far more common historically than you seem to suggest. Part of my background is South Asian and male-female marriage for procreation is pretty deeply embedded there--albeit in a form that puts more emphasis on extended family and far less on romantic love than the late-20th century American standard.

      I also think you many contemporary commentators overestimate the role of property in marriage in broad surveys of marriage history. Clearly, marriage was far more about intergenerational relationships in many prior cultures than in is in most contemporary American settings. And property inheritance is one manifestation of the concern many cultures have had for intergenerational relationships. But I think it's a Marx-influenced anachronism to assume that people cared about children because they had property to protect--rather than people caring about intergenerational relationships first and then passing property through them.

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  15. I'd like to leave a general thank you to commenters here and on Facebook for the general tone of respect. Strong advocates of same-sex marriage who have showed a willingness to understand views they don't agree with deserve particular thanks for going outside their comfort zones in taking the time to read and process this post.

    I am glad to share a world with you.

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  16. Thank you for this. You have expressed my thoughts and feelings very well.

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  17. Thank you for writing this. There is such great sensitivity and common sense. Your words give me much to think about.

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  18. This is a cogent essay and has its place in public discourse. As an attorney of some years’ experience, who has studied this issue and its jurisprudence intently, I can also say that, as commenter Athie noted above, from a legal perspective "the best arguments on [James Goldberg’s] side of the issue almost all lack content and substance".

    Religious opponents of marriage equality regularly fail to understand that a judge does not and cannot decide a case of, for example, a state law's compliance with the United States Constitution based on the local culture's majority preference. Judges are not arbitrators of cultural questions. In a court of law, there are standards of evidence and burdens of proof that must be followed. Nothing in James’ thoughtful essay here qualifies as such evidence. Proposition 8’s defenders in California were, after months of preparation, likewise unable to present any proof in court that marriage equality harmed anyone.

    In fact, when addressing James’ belief that civil law should model the “traditional” gender-based marriage model, Judge Walker in the Prop 8 case made one of the most compelling conclusions of all, and which virtually every same-sex marriage opponent has ignored.

    He said that state law had long since eradicated all gender-based distinctions as to rights and roles and privileges within marriage and that spouses' rights and responsibilities within a civil marriage are absolutely equal regardless of gender. As a result, there is no longer any compelling state interest or even rational basis for continuing to require that spouses be of opposite genders. No government purpose is served by doing so. Thus, a state law which so excludes same -sex couples from marital rights and privileges must rest on a legitimate government purpose for preserving that gender-based distinction. None had been shown. Therefore, Proposition 8 unjustifiably denied a certain group of people the equal protection of the laws, and was thus unconstitutional. Judge Shelby essentially reached the same conclusion with Utah’s Amendment 3.

    Rather than criticizing “activist judges” who “overrule the will of the people.” marriage equality opponents should really go after and try to reverse the efforts of those who spent decades trying to eliminate all gender-based distinctions from marriage and family law generally and thus make women legally equal to men in the legal marriage relationship. Because same-sex marriage is nothing but the logical conclusion of those efforts. Any active Mormon guy who wants to preserve “traditional marriage” legally had thus better be prepared to tell his mom and sisters and grandmas why he wants to take away their current legal equality which results directly from civil marriage being free of gender-based distinctions--the same legal basis which compels same-sex marriage.

    Debates over the socio-cultural questions raised by James in his essay here are fine, have their place, and can go on ad infinitum. But ultimately the thing has to be decided in a court, where legal requirements and rules for evidence and standards of proof would render James’ thoughtful analysis useless in actually making a legal ruling.

    I wish more cultural conservatives would understand the distinction between their religious and cultural views on one hand, and on the other hand the clear legal standards and rules for burdens of proof, evidence, constitutional analysis, and standards for judgment which a court is required to follow when deciding whether laws like Amendment 3 pass constitutional muster.

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    1. Rob,

      Part of what I am suggesting in this essay--the purpose of the third section--is that religious people should focus at this point on influencing the culture rather than the law.

      I do make a legal argument in the second section, and I wish you would bring your expertise to engage with it directly. My legal argument is that:
      1) family law still does acknowledge biological parenthood as being attached to certain rights and obligations
      2) there are multiple legitimate state interests in recognizing marriage. One is a legitimate state interest in encouraging formal legal commitments between biological parents
      3) there is a difference between marriages which have no direct effect on parenthood (such as marriages of older, infertile individuals) and marriages which actively separate partnerhood and biological parenthood (such as a marriage between two fertile men like Andrew Solomon and John).
      While I think there's a good case for a judge ruling that a state needs to acknowledge same-sex partnerhood, I'm not as convinced by assumptions that marriage is only about partnerhood or that infertile couples and same-sex couples are identical as far as their effect on biological parenthood is concerned.

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    2. Okay, James, here is my lawyer’s perspective on your points.

      The fact that family law imposes certain rights and obligations on biological parenthood has nothing to do with whether there is a rational basis or compelling state interest to deny the legal rights and obligations of marriage to same-sex couples. Marriage equality does nothing to change those parental “rights and obligations” of biological opposite-sex couples. So this is not a justification to prohibit same-sex marriage.

      Same goes for the “legitimate state interest in encouraging formal legal commitments between biological parents.” That interest remains unaffected by extending marriage to same-sex couples.

      As to your third point, Judge Shelby addressed it in the Utah case. Procreation “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. . . Under the State’s reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens.”

      The State of Utah argued that excluding same-sex couples from marriage was justified based on a state interest in promoting responsible procreation within marriage. But it “presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry.” And “the only evidence that either party submitted concerning the effect of same-sex marriage suggests that the State’s fears are unfounded.”

      Thus, any “differences” between “marriages of older or infertile individuals” and marriages “which actively separate partnerhood and biological parenthood” are likewise irrelevant to the legal question of equal protection and treatment under the law.

      To sum up: With respect, in a legal setting none of your points are relevant. Biological procreation and parenting are simply not factors in the legal question of whether a state can deny access to marriage to same-sex couples based solely on their gender when, in all other respects, the legal rights, privileges, duties and obligations of a married person have nothing whatsoever to do with their gender.

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    3. Are there standards of evidence here?
      http://www.youtube.com/watch?v=z2cgYPFzXj8

      It seems to me that civil government has an interest in protecting children and creating an environment where responsible, capable adults are raised. Marriage has historically served this role.

      “Marriage exists to unite a man and a woman as husband and wife to then be equipped to be mother and father to any children that that union produces.” (“Only with Marriage Reality Can you have Marriage Equality” Ryan T. Anderson 1/21/2014, http://www.indypolitics.org/post/73824888307)

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  19. "Same goes for the 'legitimate state interest in encouraging formal legal commitments between biological parents.' That interest remains unaffected by extending marriage to same-sex couples."

    If marriage becomes more about partnerhood than a legal commitment between two possible biological parents, does it not diminish the likelihood that potential biological parents will get married? Is it not in the state's interest that biological parents have a legal commitment to raise the child they creates to become a responsible and capable adult?

    Is not this legal commitment merely a formality of the social norms of marriage? That two possible biological parents love and are committed to support each other in the raising of their children? That this norm becomes an example and a model to children so they too will become married and raise their own children?

    "Procreation 'is not a defining characteristic of conjugal relationships from a legal and constitutional point of view'". Is is legal and constitutional to define marriage as "Marriage exists to unite a man and a woman as husband and wife to then be equipped to be mother and father to any children that that union produces."? To me it is about encouraging a culture of raising responsible and capable adults. To apply a legal commitment to relations that may result in producing children.

    If there were evidence that same-gender marriage decreases the liklihood that opposite-gender couples married less, would that be a sufficient legal reason to define marriage as between a man and a woman?

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  20. No it would not. It would be interesting to see evidence that marriage between persons of the same gender "decreases" the chance that opposite gender couples would marry "less." But it would make no difference to the legal questions that must resolve this matter.

    With respect, Mr. Alger, your entire post is a non sequitur. Though it is characteristic of many on your side of the issue, who are apparently fixated on the sexual and procreative aspects of marriage. Beyond that point, however, multiple teams of top-talent lawyers have had literally years now to demonstrate in court, with evidence, that "the institution of [heterosexual] marriage" is harmed by allowing same-sex couples to marry. They have been unable to do so.

    For the record, Mr. Anderson in your Youtube is a close colleague of Robert George, one of the most implacably homophobic foes of marriage equality. I have listened to the video you suggest, and find none of Mr. Anderson's alleged "harms" to "traditional marriage" persuasive or legally sufficient (particularly his red herring of "threats to religious freedom" argument). He fails to show how traditional, same-sex couples and the desire of heterosexual singles to marry in the "traditional" way will be harmed by allowing gay people to marry as well.

    The problem with Mr. Anderson's perspective is that it consistently ignores all aspects of marriage that don't center on sex and children. American law recognizes this. Multiple cases have entertained the arguments Mr. Anderson states, and the courts (mostly consisting of conservative Republicans or their appointees) have rejected such arguments as artificially narrow, unrealistic and lacking in proof of any real harm.

    What advocates of such a position don't seem to realize is that the law has already shifted inexorably to allow marriage equality. Therefore, those who oppose it have the burden of proving that it actually inflicts harm on others, harm sufficient to restrict equal protection of the laws. To the best of my knowledge, theories like Mr. Anderson's have been repeatedly advanced in court but have never been supported by proof sufficient to persuade any judge to agree. You cannot say, Mr. Alger, that your beliefs have not had a full and fair chance to make their case. They have, repeatedly. And repeatedly they have failed to persuade judges who must rule based on the evidence and the law, not merely cultural or religious preferences.

    Mr. Alger, I strongly urge you to read Judge Walker's opinion in the Prop 8 case, Judge Shelby's opinion in the Utah case, and the opinion of the Iowa Supreme Court in ruling that their state constitution required marriage equality. Keep in mind that at the time, the Iowa Supreme Court was made up of seven conservative Republicans. These opinions, all based on a review of facts and evidence from both sides, will give you a much better view of this issue from a legal perspective than Mr. Anderson's Youtube video or his arguments could.

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    1. I appreciate your response.

      Do you disagree legally with this?

      "Church officers will not employ their ecclesiastical authority to perform marriages between two people of the same sex, and the Church does not permit its meetinghouses or other properties to be used for ceremonies, receptions, or other activities associated with same-sex marriages. Nevertheless, all visitors are welcome to our chapels and premises so long as they respect our standards of conduct while there."
      http://www.mormonnewsroom.org/article/church-instructs-leaders-on-same-sex-marriage

      Do you think there may come a time when an opposite-gender couple might want to be married in an LDS church? Is the church in its legal rights to not allow it?

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    3. I do not disagree. I heartily endorse it. If anyone ever sued the LDS church to try to force it to perform a same-sex marriage in a chapel or temple, I would be first to defend the LDS church's right to conduct its own religious ceremonies in its own buildings amongst its own members. The First Amendment protects the LDS church's right to do that.

      I suspect your second set of questions is about same-sex couples, not opposite-sex couples. Assuming I'm right, my answers are:

      1. Who knows? I'm not sure why any same-sex couple, knowing Mormonism's hostility to same-sex relationships, would even want a wedding in an LDS chapel. But it could happen.

      2. The church would absolutely be within its legal rights to not allow it. And I would support it in that decision.

      Footnote: Your questions suggest that you believe the LDS church's freedom to administer its own religious ceremonies in its own buildings is at risk from marriage equality laws.

      This is a myth. It is untrue. People who spread this myth are liars.

      For over a century the LDS church did not allow African-Americans into its temples, based on a racist doctrine that it has now repudiated. As a lawyer, I know of not a single case in which anyone even tried to sue the LDS church to compel it to admit African-Americans to its temples or to solemnize temple weddings for them. The First Amendment guaranteed the church its right to be racist, within the confines of its own property and organization. The church took ultimately irresistible pressure to change this, but to the best of my knowledge, was never actually sued to try to compel it to change. Because it was clear to anyone who knew anything about the law that such a lawsuit would have zero chance of success.

      The same will be true of same-sex marriages, without question. And for the same reasons.

      So all the talk about "threats to religious freedom" from marriage equality are a red herring. There is no such threat that any church will be compelled to administer its own religious rites against its will.

      The problem arises when people think that "religious freedom" means they have the right to ignore broad laws of general applicability, simply opting out of obeying any law they choose because they think it offends their personal religious beliefs. For example, businesses posting and relying on signs that say "we reserve the right to refuse service to anyone" to deny wedding cakes to same-sex couples.

      As with the fear of compulsory marriages against church doctrine, this too is a myth. Such signs are legally meaningless. At both federal and state level there are laws that apply to all businesses that serve the public which prohibit those businesses from discriminating on numerous bases. Many states include sexual orientation on that list.

      This is the reason the New Mexico wedding photographer was found guilty of violating state law for refusing to photograph a same-sex wedding solely because the couple were both women. It had nothing to do with marriage equality. The people of the State of New Mexico, through their elected representatives, enacted a law that prohibited discrimination by businesses on the basis of sexual orientation. The photographer violated that law. Very simple.

      You may believe that this, and other similar cases, constitutes a "violation of religious freedom." With respect, any such person who believes that does not know American law. There has NEVER been such a right to ignore valid laws of general applicability just because one's religious principles might be "offended" thereby. Even Justice Antonin Scalia, no friend of progressive causes, resoundingly affirmed this principle in a 1992 Supreme Court case called Employment Division v. Smith. There is no religiously based right to "opt out" of obeying a law that applies equally to everyone, especially in a business context.

      I hope I have answered your questions satisfactorily.

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  21. I don't really have much insight to offer, but I wanted to thank you for writing about this topic. As a fellow traditionalist, this topic matters to me, too. You use your gift of intellect to express your ideas with an eloquence and a humility that is just right for discussion and reaching those on the edge. May God bless you for your courage and honesty.

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