Sitting in the eating area of the law school at Gonzaga University I had an experience you might find interesting. A fellow law student was complaining about a politician’s comments on the middle east and so I joined his conversation having read a couple books on the candidate which I felt might give me...wisdom and an ability to clear up the truths. His response was to bring up two other issues which were on the ballot in the November election--marijuana legalization and same-sex marriage recognition. I will support neither despite the alleged support of my fellow student.
My fellow student and fellow American tried by subversive means, which I do not believe he recognized to be subversive, to argue my stance away--my stance being that marriage is ordained of God and that marriage should be defined as being between only one man and one woman.
He tried to shake me with comparisons between same gender relationships and interracial relationships. This approach was surely not intended to “ensure domestic tranquility” in a country where slavery once existed. I have heard African Americans claim that such a comparison is, to them, offensive (e.g. Harvard Law alumni E. W. Jackson) as no homosexual has ever been enslaved in this country (to my knowledge). My qualm with this perspective is that in the one instance no marriage--man and woman was previously permitted whereas in the other a non-marriage of a man and a man should not be permitted and never before has been "by the people".
I was blessed after being born into a family made up of a man and a woman married lawfully who with responsibility loved and cared for each other and their children. Who would deny that this means that the “blessings of liberty” were secured for myself? My mother stayed home and taught me to read and write while my father went to work as an accountant. In the summers we took vacations. My parents paid taxes, voted regularly, bolstered their friends, and donated to church funds and charities the best they knew how in addition to caring for their children and supplying us with a home with a swimming pool.
My law school friend and I briefly discussed these blessings of liberty. I can point out now that children would be adversely affected if the laws regarding guardianship should become confused and dishonest. In the case of two homosexual women who enter a relationship there may already be children involved from a previous heterosexual relationship and then legal rights to the child as a guardian could potentially be invested in the two but what would happen if the “natural” mother became incapacitated or died? I read a real story of such a case in California. The “natural” father of the child wished to regain custody of the child and was facing a wall. This scenario would be essentially hopeless if marital status had been given to the homosexual partners. And, how would you like to be the judge who refuses to choose to allow such a daughter and father reunite? How would you feel about it?
When the argument is made to me that “it’s just two people who love each other trying to get married” it seems repelling and I am offended. I am married to my spouse, we are yet childless, and she and I try each day to love and respect one another. I am repelled by the call for my love to be compared to some relationship which may never directly naturally produce children (even given various forms of hormonal and scientific pathways to aiding the creation of children with help from family medicine). Even the Supreme Court of the United States has recognized the sanctity of the family unit-- in the family is where values--morals and culture are traditionally best taught. These values include religion. I do not advocate for the the establishment of a single religion contrary to our Constitution. Additionally, it can be offensive to me to hear this comparison when I have read in the Bible Almighty God state that homosexual relationships are abominable in His eyes (Romans 1). At this point, hasn’t my faith been silenced and my belief been offended? Hasn’t the most sacred part of my life been compared to something difficult to understand as a lost lamb?
Prior to the first judicial panel determining to allow same-sex marriage in Massachusetts on twenty six out of twenty seven occasions Americans had voted in their respective spheres of influence to define marriage as between one man and one woman. In fact, since 1998, thirty-two states have held votes on state constitutional amendments regarding same-sex marriage, and all thirty-two states have opposed it. Think briefly of the arrogance of that court. How could a court begin to unravel charitable statuses for churches sustained by American people which protect the sanctity of marriage--this is a viable concern which I won't discuss briskly at this time. How could a court not see the discouragement that could add to problems with civil marriages, declining families, and perhaps birth rates.
My discreditor may or may not like to invite others to gawk at my uneasiness with the topic or to describe me as a racist or a dishonest or unfair person. In my judgment the truth is that his perspective is not clear or is not a long term perspective. Or, perhaps he is just wrong. This is a moral choice. America’s constitution was written by anglo Christians. Over the years America became legitimately diverse and we are now not an anglo-Christian nation but a Christian nation of free people. We all go by “Americans” and we all pledge allegiance to “one nation under God indivisible with liberty and justice for all”. I seek to secure that liberty for my family and the future children I intend to raise in a goodly manner. I stand firmly on my faith and hope and my love for others that marriage will and should be defined as it has been since before the inception of the country as one man and one woman aiming to improve based upon the lessons learned from the previous generation and lessons inspired by He who used to be referred to as the American spirit.
I would also like to add that I do not presume to speak for God at this time, although, I believe that His wisdom is available to us today to examine and re-examine and learn from. I am grateful for the spoken words of prophets (Amos 3:7). One of those prophets is Thomas S. Monson.
Ultimately, to allow same-sex marriages could also complicate and confuse genealogical record keeping significantly for children entrusted to the guardianship of such partnerships including records regarding more remote generations (perhaps more than one generation back), and other religious practices regarding genealogy.
Now, onto the legal issues--
1) No Constitutional "fundamental right" to "homosexual marriage" exists or has existed in the history of American jurisprudence. Thus, liberty interests under the Due Process Clause of the 14th Amendment do not apply to "homosexual marriage". The Supreme Court has yet to weigh in on this issue. If it does it should consider it's own words about the family unit in American tradition/history and the dissemination of morals:
“Our decisions establish that the Constitution protects the
sanctity of the family precisely because the institution of the family is
deeply rooted in the Nation’s history and tradition. It is through the family that we inculcate
and pass down many of our most cherished values, moral and cultural.”
2) The Constitutional level of scrutiny for sexual orientation under the Equal Protection Clause of the 14th Amendment is merely the Rational Basis Test. Romer v. Evans. This means, that a state government need merely assert any legitimate government interest rationally related to their state promulgated law. This standard is very broad and should be easy to meet--the state can simply refer to its police powers -- maintaining health, safety, morals, etc. 