ELECTION DAY!

Here's an article that Ben wrote a few weeks ago about Proposition 8. He has shared it with many people, who have in turn spread it virally, while discussing the conflicting positions in this heated debate. I think it is brilliant, but I am probably just a little biased.

The Great Prop 8 Debate:
Four Foundational Disputes, Competing Arguments, and Analysis
Benjamin D. Stanley

Nota Bene: many of the following arguments and definitions, for the sake of brevity, are simplifications. I attempt to distill ongoing and nuanced ideological conflicts into brief, core concepts, an undertaking that is not always possible: I apologize in advance to anyone who may be offended by imperfections in the effort.

Threshold Questions. Who am I? A Coastal Southern California lawyer and lifelong logician hoping to address a complex issue with philosophical, rational, and impartial analysis. What is Proposition 8? An effort to amend the California constitution to reflect a state-wide vote eight years ago that defined marriage as only a union between a man and a woman, passed by 61%, but recently rejected by four California judges. What is discrimination? (1) Treating individuals differently (2) based upon an immutable characteristic, (3) without a compelling justification. So for Proposition 8 to be intolerant, inappropriate, or inequitable, all three elements must be shown? Yes. Furthermore, (4) the alleged consequences of Proposition 8 inform whether or not it is a good choice for California.

1. Disparate Treatment. Does Proposition 8 seek to treat people differently?

(a) Opponents of 8 advertise that the proposition is at base an effort to treat people differently, and that socially couples are less legitimized if they are forced to accept an alternate word or phrase to describe their relationships. At minimum, the proposed amendment slows the rate of social acceptance of alternate lifestyles.

(b) Advocates of 8 contend that California law, independent of the judicial opinion that prompted Proposition 8, already protects and provides every single substantive right afforded to married couples to domestic partnerships. It is illegal to deny any privilege of marriage to a same sex couple.1 Many advocates favor that situation, where legal treatment of committed romantic relationships is identical, but separate words identify the two different forms of such relationships. An example might be the way there are two different words, fiancé and fiancée, used to describe engaged individuals depending on their sex, even though they have identical legal rights and receive the same substantive treatment.

(c) I find almost all laws treat people differently, place them into classes, or include elements or requirements under which the statute applies. By way of examples, our laws treat people differently over things they completely control (is he a trespasser?), things they partially control (did she become a doctor?), things they once controlled (is she a felon?), and things they do not control (is he blind?). Does Proposition 8 represent disparate treatment? The language of the proposed amendment defines a word, but dictates no treatment, and existing California law insists upon identical treatment of married couples and domestic partnerships. Thus there is a difference in nomenclature, but no difference in treatment and no threat of discrimination from Proposition 8 alone or in the context of current laws. Individuals and society may view the relationships differently and afford them differing levels of legitimacy, but those cultural views cannot be legislated and exist independent of Proposition 8.

2. Immutability. Is sexual orientation an immutable characteristic? Where is our science on the percentage of influence on homosexuality, bisexuality, or heterosexuality attributable to (i) heredity, (ii) environment, and (iii) volition?

(a) Opponents of 8 generally assert that there is no element of human choice in sexual preference and point to the argument, "Why would anyone choose a life that would subject them to persecution?" They also commission various scientific studies looking for physiological indicia of sexual orientation.

(b) Advocates of 8 generally respond that people make unpopular decisions on innumerable issues for innumerable different reasons, often subjecting themselves to untold horrors of intolerance and prejudice. On the immutability issue, they affirmatively point to the men and women who have asserted that their own preferences have changed, that there were dramatic elements of environment and choice in the development of their orientation, or that even into adulthood they continue to have shifts in their sexual preferences.

(c) I find scientific research is currently in conflict and inconclusive, but most models now assume an interplay of all three factors in unknown proportions and that could very well differ between individuals. I welcome further information, argument, and studies on this issue. Based upon that state of science and the conflicting testimonies, I conclude that it is logical error and premature to assume immutability. At most, sexual orientation is an "arguably immutable characteristic."2

3. Governmental Interest. Is there a compelling reason to treat couples differently, assuming arguendo that differences in treatment exist?

(a) Opponents of 8 contend that there is no reason to treat people differently. They assert that marriage is nothing more than a public recognition of the depth and commitment of a private love relationship, and that such private love relationships harm no one, violate no laws, trample on no rights, and invoke no concern on society's behalf, and therefore it is fundamentally unfair to treat gay and straight couples differently.

(b) Advocates of 8 generally view marriage as something more than a private love relationship, and point to social, biological, and generational obligations and impacts of marriage as an indication that the state has an interest in regulating marriage. Given that the interests of government relate to reproduction, government may treat heterosexual unions more favorably than homosexual ones without violating constitutional equal protection.

(c) I find that governments hold a compelling interest, rooted in biology: incentivizing and promoting the relationships and attendant implications of pressure to support and provide that (i) can produce offspring and (ii) have historically proven to provide stability, strength, and survival to society by ensuring that children are raised by the parents who created them as often as possible. The alternative position collapses upon itself under logical analysis: it reduces to absurdity. In brief, children are the only possible basis for government involvement in the marriage discussion in the first place, so if there is no compelling state reason to prefer one union over another because marriage is fundamentally a private love relationship, then government has no business regulating marriage at all or sanctioning any relationships.

4. Consequences. What will follow from expanding the definition of marriage?

(a) Opponents of 8 cite to dicta throughout close state court opinions that contend, despite fears to the contrary, there will be no further expansion of marriage into realms of polygamy or incest, that there will be no imposition on private rights of parents in the education of their children, and that there will be no specific imposition on individual business owners or citizens based upon the expanded definition of marriage.

(b) Advocates of 8 point to two smaller American jurisdictions that have already redefined marriage, as well as developments in California, noting subsequent lawsuits with unexpected results and other perceived negative developments resulting from the changes: elementary aged children read to from storybooks about gay weddings and taken on field trips to see such weddings, parents found to be without legal recourse, rights of notice, or means of objection, doctors held liable for refusal to artificially inseminate lesbians for personal or religious objections and despite the availability of other willing professionals to perform the service, and adoption services forced into closure over ideological differences.

(c) I find that the general tendency in a litigious society to push at boundaries suggests that further efforts to bolster both the social acceptance of all possible sexual orientations on the one hand and to define, support, and expand parental rights and influence on the other will inevitably result in future conflicts. Ethical rules that govern the practice of law permit challenges to existing laws and explicitly allow lawsuits to erase and refine the dicta of judicial opinions. See, for example, Federal Rule of Civil Procedure 11(b)(2), which welcomes "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." We can anticipate further litigation, further efforts to change social and cultural perceptions, and can anticipate efforts on every front to influence as many minds as possible. Greater discretion amongst teachers and shifting cultural views will certainly increase the likelihood that alternative views receive more frequent and more favorable treatment in media and classrooms. California law contains prescriptive language that children are to learn about marriage, and parents cannot anticipate and object to every moment when same-sex marriage, with all the implicit biases that flow naturally from the legal definition of the word, will be discussed under that mandate.3

Thought Experiment. Imagine a hypothetical young child, Gender-confused Joey, who seeks to understand the world around him and make sense of the feelings and attractions that are so inexplicable and yet widely regarded as central to human happiness. Suppose that Joey is at that tipping point in his development and a key moment in the formation of his sexual orientation that will guide his attractions throughout his early adulthood.4 Grant, for a moment, that there is such a time in Joey's life. To the extent that there is any possibility whatsoever that environment plays a role in how Joey's orientation develops at this juncture – and there is certainly that possibility – Joey's parents may very well desire to influence that development. For religious reasons, for want of grandchildren, for common ground in future conversations, for social statements, or for a myriad of other reasons, it is actually quite likely that they would want to influence Joey's preference, one way or the other, and possibly convey the same preference they have, again to the extent that may be possible to influence. Joey's parents may want to instill the belief that one form of romantic relationship is preferable to another, at least for them and their child.

At the same time, for fear of Joey getting the impression that one form of romantic relationship may be preferable to another, and thus that he may become a bigot in later life, be intolerant, violent, or unfair toward others who have accepted or formed a different preference from the one Joey ends up selecting or developing, others in society may have a deep desire to influence Joey, again to the extent his impressionable young mind is open to influence, toward the perspective that two (or more) different romantic pairing possibilities are of equal moral value.

For the advocates on both sides, the political, legal, and cultural war over same sex marriage has become, whether they admit it or not, a battle for the hearts and minds of the young.

These two groups, Joey's parents on the one hand and individuals who want to be sure there is no favoritism on which sexual preference is to be desired by society on the other hand, are on a collision course; their perspectives will inevitably conflict.

I am not convinced that we can determine through logic alone whether there is or should be, in the abstract, a preferred sexual orientation or a preference for treating all potential sexual attractions as morally neutral. Such foundational truths, like the very existence of God, may be outside the realm of logic and may require something akin to spiritual insight to ascertain.

But logic alone can answer whose rights should triumph in that coming conflict. The parents' rights are predicated, presumably, upon a love for their child and a desire to raise that child with all the truth, knowledge, and experience that the parents have acquired in life. That predicate represents a desire comprised of the best aspects of humanity. The intention of others to influence the moral evaluation toward total neutrality is predicated upon a fear of future intolerance, a fear of potential bigotry, and a fear of possible unacceptance. That predicate represents concerns about some of the worst aspects of humanity taking root in a child's heart.

Both are important perspectives, but there is a way to achieve the goals of the latter without offending the rights of the former. The concerned citizens can seek to promote education about tolerance, respect, law-abiding citizenship, acceptance, nonviolence, open-minded discourse, and all other civic virtues and thus achieve their goal without undermining the parents' efforts to influence their child with their values. In the law, we call it the least restrictive means. There is a way to promote tolerance without undermining rights, so logic demands that we pursue that course. Logicians refer to that solution as splitting the horns of the dilemma: find a third alternative that transcends the ideological battle, and allows both groups to achieve their underlying legitimate objectives without compromise on either side. The passage of Proposition 8 serves that third alternative in an indispensable manner.

Conclusion. For the reasons detailed above, I find the arguments of the advocates for Proposition 8 more compelling, and will be voting "Yes on 8." As I fight daily for the causes of liberty, love, law, logic, truth, and tolerance, I will also be among the ranks of the advocates for Proposition 8. Taking my responsibilities of citizenship seriously, I will be encouraging everyone I know, everyone I meet, and everyone who cares about my opinion to vote in favor as well and invite all who read this analysis to join me in that effort. May kindness and respect for rights prevail, regardless of the final vote count.

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1 "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." California Family Code section 297.5(a).

2 I must defer some questions for future day, such as the appropriate level of constitutional scrutiny to apply to an "arguably immutable characteristic" or how to address the pragmatic challenges of class protection for a characteristic that can have conflicting manifestations and must be gauged ultimately by self-profession. Might individuals have incentives to misrepresent their preferences either way or claim different orientations at different times (to deflect social pressures or seek promotion in an office that favors diversity, for example)?

3 "(1) Pupils will receive instruction to aid them in making decisions in matters of personal, family, and community health, to include the following subjects: (D) Family health and child development, including the legal and financial aspects and responsibilities of marriage and parenthood." California Education Code 51890.

4 Recognizing that there is not agreement about when this crossroad might come in a person's life, whether there is more than one, whether there are volitional, hereditary, or environmental influences at this moment, or the duration of such a posited moment.

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Also, here is a quote from Elder Maxwell that he delivered during a BYU Devotional back on October 10, 1978, called "Meeting the Challenges of Today." This quote is fantastic and eerily accurate for being made 30 years ago. Elder Maxwell was definitely a prophet, seer, and revelator.

"Make no mistake about it, brothers and sisters, in the months and years ahead, events are likely to require each member to decide whether or not he will follow the First Presidency. Members will find it more difficult to halt longer between two opinions. President Marion G. Romney said, many years ago, that he had 'never hesitated to follow the counsel of the Authorities of the Church even though it crossed my social, professional or political life. 'This is hard doctrine, but it is particularly vital doctrine in a society which is becoming more wicked. In short, brothers and sisters, not being ashamed of the gospel of Jesus Christ includes not being ashamed of the prophets of Jesus Christ. . . . Your discipleship may see the time when such religious convictions are discounted. . . . This new irreligious imperialism seeks to disallow certain opinions simply because those opinions grow out of religious convictions. Resistance to abortion will be seen as primitive. Concern over the institution of the family will be viewed as untrendy and unenlightened.... Before the ultimate victory of the forces of righteousness, some skirmishes will be lost. Even in these, however, let us leave a record so that the choices are clear, letting others do as they will in the face of prophetic counsel. There will also be times, happily, when a minor defeat seems probable, but others will step forward, having been rallied to rightness by what we do. We will know the joy, on occasion, of having awakened a slumbering majority of the decent people of all races and creeds which was, till then, unconscious of itself. Jesus said that when the fig trees put forth their leaves, 'summer is nigh.' Thus warned that summer is upon us, let us not then complain of the heat."