Tag Archives: same sex marriage

Defending the Indefensible

Nothing like the little troopers of Leonidas I intrepidly defending their self described Thermopylae against the encroachment of the 21st Century, and marriage equality! Nevada Secretary of State candidate Adam Laxalt announcing to anyone listening, “Today, Nevada’s Constitution still stands strong,” he said. “The preference of our voters is the law of the state and nothing the attorney general did changes that.” [LVSun]

No, nothing changes the unfortunate choice made by Nevada voters on Question 2, a citizen initiated referendum to alter the state Constitution in 2000, and affirming that vote in 2002.  However, the buyer’s remorse is evident in the polling done since the adoption of the amendment.  In 2009 a Las Vegas Sun poll found 38% favoring same-sex unions, and by October 2013 those favoring 57% now approve of removing the amendment to the Nevada Constitution. [ranNV pdf]

But, no, nothing is to prevent the Governor and the Nevada Attorney General from continuing the case in question.  Before they do so it would be nice to have some assurance that all the effort, overtime, and taxpayer expense has the possibility of success.   The appeal in Sevcik v. Sandoval (pdf) maintains (1) the inequality in marriage creates ‘harms’ the domestic partnership law doesn’t mend, (2) the marriage ban creates fundamental violations of the rights of the partners, and (3) the marriage ban violates the equal protection provisions of the 14th Amendment.   Sandoval/Masto responded that the decision in Baker v. Nelson is still controlling and the legal action is outside the jurisdiction of the court.  [Sandoval/Masto pdf]

The problem here is that the Baker v. Nelson decision was rendered in October 1972.  Times have indeed changed, and the judiciary along with it. Conservatives have been hanging their hats on Baker v. Nelson, but the nails have come out of the wall for this hat-rack.

When the Obama Administration dropped its advocacy of DOMA, the Republicans in the House of Representatives stepped in, with the Baker v. Nelson Defense.   The Circuit Court of Appeals gave the argument short shrift. [SCOTUS]  The decision in U.S. v. Windsor took the cases into new territory:

“By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.” [SCOTUS Kennedy]

And then the winds swept over the plains in Oklahoma:

“In ruling against the state’s ban on same-sex marriage, the judge declared that it violated the U.S. Constitution’s guarantee of legal equality.  He ruled that the Supreme Court’s ruling last Term in United States v. Windsor actually provided some support both for the challenging couple and for state officials defending the state ban.

“The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage.  It supports the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.” [SCOTUS]

Therefore, in essence what candidate Laxalt is saying is that he would continue pressing a case in which that formerly  controlling precedent has had the props knocked from under it, and would continue to appeal a decision already on tenuous grounds in Utah and Oklahoma.  Some exercises in futility may have some intrinsic merit, but this certainly doesn’t seem like one of them.  There’s another aphorism which might be more appropriate: Quit while you’re still ahead.

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Filed under Nevada news, Nevada politics, Politics

Amid the Wheat and the Weeds: Arguing for Gay Marriage

President Obama announced his support for gay marriage yesterday, framing the debate as a question of human and civil rights.  Why, in the most powerful nation on the planet — because we are inclusive, not in spite of the fact — do we have a class of people comprising possibly 4% of the total population who are denied certain civil liberties because of their sexual orientation?  Good question.

One Church Curiously Divisible

The arguments in favor of discrimination against the LGBT community are nearly all based in theology,  and the theological arguments trace back to the Reformation.   How can one tell if a nation is sanctified?  St. Augustine offered a clue in his description of the Visible and Invisible Church;  that there are the ‘saved’ who participate in the visible church, and that visible church was not pure — it contained both “wheat and weeds” within.  By Puritan lights the Anglican Church was weed-ridden, filled with popery, and riddled with improprieties meant to be expunged for the betterment of all.

This is all perilously close to the 4th century Donatists, an heretical sect which believed that only those who led blameless lives might be considered actual members of the church.  The Puritan fathers were quick to deny this classification, but their emphasis on Visible Saints led some, like Robert Browne, to argue for the distillation of the church down to the congregational level so that the membership of the church was entirely composed of ‘true’ believers.   In time the Puritans  (the Separatists who landed at Plymouth and the non-Separatists in the Great Migration)  were established on American soil and developed a “method” by which church membership was bestowed.  The New England Method mostly consisted of establishing that the person had a good reputation, lived free from any scandal, and readily submitted to Church instruction and discipline.  This would include Beza’s emphasis on a collective effort to “combat sin and teach the true religion.”

Without digressing into a history of the knock-down-drag-out turned to Civil Wars English Reformation era*, suffice it to say that one school of thought held that a “nation’s salvation” was defined by how closely the body politic mirrored the Visible Church.  Obviously, the fewer theological weeds the better.

What might have been spectacularly on display during the North Carolina voting on gay rights was the political version of purifying the state by imposing the theological doctrines of congregational churches upon the political institutions in order to insure the ‘salvation of the state’ as defined by congregational discipline.  It’s important for the members of the Visible Church in this regard to impose the discipline of the church because the state is the vessel of the Invisible Church, and as the Invisible Church more closely conforms to the norms of the Visible Church, then the salvation of the state (everybody) is more perfectly known.

All this assumes that there is something to be saved.  When civil libertarians argue for the separation of church and state, the response from the rigid adherents of various congregations recoils from the notion that there is no “invisible church” to be saved.  The essential problem of course, is that having an “invisible church” as clarified during the Reformation era is well nigh impossible in a nation of Catholics, Muslims, Jews, Hindus, Buddhists, and non-believers. These individuals, and their beliefs, constitute the Weeds in the Wheat Fields of the Lord.  For the various ‘disciplined’ congregations this “must” be a Christian nation, because no other manifestation of the Invisible Church (state) would be capable of salvation.

Hoisted on Their Own Canards

Possibly because it wouldn’t do to enter a court room in the United States of America prepared to argue that civil rights may not be extended to members of the LGTB community because to do so would be to “leave the wheat fields of the Lord unweeded,” and thereby be a sign that the Invisible Church is further from salvation, the ‘disciplined congregations’ must invent reasons which sound more harmonious with modern judicial and political doctrine.

#1.  “The extension of civil rights to the LGBT community would destroy the institution of marriage.”   How this might be the case is highly questionable, and the so-called study showing marriage declining in some Scandinavian countries conveniently ignores the fact that gay marriage is not actually legal in Denmark, Norway, and Sweden.  Nor does the study account for the fact that marriage in general has declined in this area, or that the decline in the rate of marriages doesn’t correlate to the legalization of same sex relationships. Indeed, a paper from the University of Virginia’s Department of Economics finds that “…legalizing same-sex marriage or civil unions in a state has no effect on the state’s divorce or marriage rates. These results give preliminary evidence which suggests that the marriage and divorce decisions of heterosexual couples are not affected by whether or not same-sex couples are allowed to form legal unions.”  (pdf)

#2.But, think of the children…”  A review of the scientific literature is revealing:

“In 45 empirical studies of outcomes of children of same-sex couples—including all studies listed in Tasker’s (2005) comprehensive survey that examined childhood outcomes, several more recent studies listed by Wald (2006), all four studies listed by Meezan and Rauch (2005) as the highest-quality studies in this field, and all the more recent studies that cite the earlier ones—none found statistically significant disadvantages for children raised by gay and lesbian parents compared with other children.”  [Stanford] pdf

Thus much for that one.  But what of the corollary argument that “Oh, dear, Gays would be allowed to adopt children?” If the research indicates that there is no statistical disadvantage in educational attainment or social skills for children raised by gay parents, then why get exercised about it?

#3. The Projection Arguments.  There are several unsubstantiated claims made which are projected or anticipated fears bearing little or no relation to reality.   (A) If we have gay marriage then schools will have to teach tolerance.   Yes, and what might be wrong with this?  It seems radical to argue that schools should teach INtolerance.  Unless one is an adherent of the Pastor Sean Harris school of beating “the gay” out of one’s offspring (since retracted) then tolerating people of other ethnic groups, other faiths, and other kinds of families should be considered a good thing.  We really shouldn’t be tolerating bullying gay youngsters, any more than we should tolerate bullying of “nerds,” unattractive, or  overweight youngsters, or any other excuse juveniles with undeveloped cerebral capacities dream up to demonstrate their lack of interpersonal social skills.

(B) Foster parents would have to undergo sensitivity training.   As if sensitivity training is a bad thing?  Generally speaking a significant source of complaint about sensitivity training tends to come from those who seem to be in  particular need of it.  We want our law enforcement personnel to be aware of differing social customs.  Imagine the outrage over having a male police officer strip search a devout Muslim or Jewish woman — or any woman for that matter?  There’s an entire segment of our corporate economy devoted to helping companies develop their human relations and personnel policies.  We are appropriately upset with teachers who humiliate or degrade children for their economic, ethnic, or social attributes.

If gay marriage doesn’t have any impact on heterosexual marriage rates, if it has no perceptible negative effects on children raised by homosexual parents, if it demands that people behave more tolerantly with each other — then what’s the problem?

Now, we’re back to that Invisible Church, the one in which the nation cannot be assured of God’s beneficence because there are too many weeds in the wheat fields.   However, if we’re attuned to Biblical injunctions there are at least two which apply:

Let us not therefore judge one another any more. But judge this rather, that you put not a stumbling block or a scandal in your brother’s way.” Romans 14:13

Judge not, and you shall not be judged. Condemn not, and you shall not be condemned. Forgive, and you shall be forgiven.” Luke 6:37


* To fully wade amongst the wheat and the weeds, read Michael Braddick’s “God’s Fury, England’s Fire,” Penguin Books, NY, 2008.   For an explanation of the Puritan church’s problems with the issue of baptism and the Halfway Covenant, see Frank Dent’s postings in the New Reformation Press.

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