Author archives: Peter Sprigg

What the Supreme Court(s) Said About Marriage: Part 3 (Washington)

by Peter Sprigg

June 25, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).

Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).

The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:

 … the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.

Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:

 … [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”

What the Supreme Court(s) Said About Marriage: Part 2 (New York)

by Peter Sprigg

June 24, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 2 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971).

The next three feature decisions by the highest court in three liberal states—New York, Washington, and Maryland. Unlike the Minnesota decision, each of these was handed down within the last ten years. Each of these states has since redefined marriage, but they have done so through the democratic process, not through judicial fiat. The U.S. Supreme Court should allow the same privilege to other states—the eleven which has chosen democratically to change their definition of marriage, and the thirty which have put a one-man-one-woman marriage definition in their state constitutions.

In Hernandez v Robles in 2006, the Court of Appeals of New York (the state’s highest court) addressed the rational basis which supports the definition of marriage as the union of a man and a woman (citations abbreviated):

The critical question is whether a rational legislature could decide that these benefits [of civil marriage] should be given to members of opposite-sex couples, but not same-sex couples… . We conclude … that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It could thus choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unsatable relationships between people of the opposite sex present a greater danger than children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Later in its opinion, the New York court responded to the chief argument made against its conclusion that a one-man-one-woman marriage definition is rationally related to concerns about procreation and child-rearing:

Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the procreation of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State’s classifications. Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, New York, 2001). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

What the Supreme Court(s) Said About Marriage: Part 1

by Peter Sprigg

June 23, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I begin a series offering excerpts from those decisions.

The earliest was in the Supreme Court of Minnesota, which handed down its decision in Baker v. Nelson on October 15, 1971. The appeal of this case was dismissed “for want of a substantial federal question” by the U.S. Supreme Court — establishing a binding precedent which over two dozen federal judges have chosen to ignore in the last two years.

While the U.S. Supreme Court issued no written opinion in Baker, the Minnesota Supreme Court did. Here are some key excerpts (with legal citations abbreviated):

The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court] (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

 . . .

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.

Loving v. Virginia, [U.S. Supreme Court] (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination… .

Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

For a more detailed description of Baker, and the full text of the decision, see this blog post from last year.

SPLC attack on JONAH, Jewish non-profit that aids in sexual orientation change, goes to trial in New Jersey; Links to coverage here

by Peter Sprigg

June 16, 2015

A shocking attack on the freedom and privacy of the relationship between private counselors and their clients is currently underway in New Jersey. The wealthy left-wing activist group known as the Southern Poverty Law Center (SPLC) is seeking to destroy a small Jewish non-profit known as JONAH—Jews Offering New Alternatives for Healing. JONAH’s offense? Referring clients with unwanted same-sex attractions (usually, but not always, Jewish) to counselors who can help them to overcome those attractions and live lives consistent with the biblical teaching of the Torah.

The weapon being used by the SPLC is New Jersey’s unusually draconian “consumer fraud” statute, with SPLC arguing that to claim sexual orientation is changeable and that counseling can help effect such change is inherently fraudulent.

One might think that homosexual activists, who have long demanded respect for their own personal autonomy in making choices about how to respond to their own sexual attractions, would shrug their shoulders and ask, “What’s it to me?” when discussing the fact that for some people, same-sex attractions are experienced as unwanted. However, the fact that some people change their sexual orientation undermines the claim that “sexual orientation” is an immutable characteristic like race—a claim that has been useful to such activists in their campaign to win official public affirmation and celebration of homosexual relationships under the guise of “non-discrimination.”

Instead, a concerted effort to discredit what are called, broadly, “sexual orientation change efforts,” or “SOCE,” has gone from professional organizations like the American Psychological Association to legislative chambers, where California, New Jersey, and the District of Columbia have already enacted laws to outlaw SOCE for minors by licensed mental health providers. The JONAH lawsuit (which targets SOCE for adults as well as minors, and activity conducted by unlicensed “life coaches” as well as licensed mental health providers) is a second prong of this new legal attack.

Pro-family activist and writer Austin Ruse has provided a valuable service by covering the first two weeks of the JONAH trial for Breitbart.com. Since the secular media shows bias in favor of the plaintiffs, coverage by Ruse (and an article by therapist Christopher Doyle, himself a former homosexual) provide a valuable counterpoint.

Austin Ruse gives a preview of the trial during jury selection in this article: “Powerful Leftist Group Sues to Close Jewish Counseling Service for Gays”

 

Christopher Doyle describes Day 1 of the trial here: Highlights from the JONAH Trial: Day 1

Media Has Already Pronounced Judgment Against JONAH in “Trial of the Century”

 

Ruse reports on Day 2 of the trial, including contradictory statements made by one of the SPLC’s plaintiffs, here: “Trial to Punish Counseling for Gays Underway in Jersey City”

Ruse describes the history of JONAH here: “Medical Choice at Stake in Gay Counseling Trial”

 

Ruse describes death threats received by both JONAH’s co-founder, Arthur Goldberg, and their attorney, Charles LiMandri, in this piece on Day 4 of the trial: “Death Threats Rock Defendants in Gay Counseling Trial”

 

Ruse reports that LiMandri has done an outstanding job in cross-examining the plaintiffs and their witnesses. His organization, the Freedom of Conscience Defense Fund, needs support from freedom-loving Americans of any religion to pay the mounting expense of this drawn-out suit, which began in 2012. For continuing coverage of the trial and to support the defense, go to www.ConscienceDefense.org.

What Loving Means

by Peter Sprigg

June 12, 2015

June 12 has been dubbed “Loving Day.” No, it is not an effort to compete with Valentine’s Day. “Loving Day” commemorates the anniversary of a Supreme Court decision — in the 1967 case of Loving v. Virginia — in which the court declared that state laws barring interracial marriage were unconstitutional. Advocates for redefining marriage to include same-sex couples argue that this case is precedent for striking down state laws that define marriage as the union of a man and a woman.

Richard Loving, a white man, had married Mildred Jeter Loving, a black woman, in the District of Columbia. They later moved to Virginia; but in 1958, police officers entered their house in the middle of the night and demanded to know, “What are you doing in bed with this lady?” Although the Lovings had their marriage certificate hanging on the wall, the sheriff was unimpressed, declaring, “That’s no good here.” The couple was jailed for five days, after which a judge accepted their guilty plea to a charge of violating the state’s anti-miscegenation statute. They were given the choice of spending a year in jail or leaving the state. They chose to return to D.C.— and then filed suit to overturn their conviction. The Lovings were vindicated by a unanimous Supreme Court nine years later.

California’s Supreme Court had already struck down a similar statute nineteen years earlier (Perez v. Sharp, 1948). That court had declared that “the essence of the right to marry is freedom to join in marriage with the person of one’s choice.” Homosexual activists claim that this is precisely the principle that should apply to their efforts to marry a chosen person of the same sex.

There is a certain logic to this argument. Laws against same-sex marriage do restrict a person’s choice of marriage partner, as did laws against interracial marriage. But the flaw in the argument is that no one — not even the most radical advocate of homosexual marriage — is proposing to eliminate all restrictions on one’s choice of marriage partner. Every state forbids marriage to specific classes of people — namely, those who are already married, children, or certain close blood relatives.

The point, then, of the cases on interracial marriage cannot have been that restrictions on marital choice are unacceptable across the board. It was, rather, more specifically that race was not a legitimate basis for imposing such a restriction.

The constitutional basis of the case against the “anti-miscegenation” laws was that they violated the 14th Amendment’s equal protection clause, which states that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Courts have ruled that this does not mean states can never have laws that treat some people differently from others, but those distinctions must have a reason and cannot be arbitrary.

It is worth reading an excerpt from the court’s decision in Loving (citations omitted or abbreviated). This was the conclusion of the Court’s Equal Protection analysis:

The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose … which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” McLaughlin v. Florida.

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Just in these short paragraphs there are references to “racial discrimination,” “distinctions drawn according to race,” “ancestry,” “racial classifications,” “the color of a person’s skin” — a dozen such references in all. This should be sufficient to demonstrate that Loving was not based on a generalized right to marry “the person of your choice,” but was rather based specifically on the Constitution’s clear prohibition of state-sponsored discrimination based on race.

Advocates for redefining marriage have also argued that same-sex couples have been denied the “fundamental right to marry,” an interest in “liberty” that courts have found to be implicit in the 14th Amendment’s “Due Process” clause, which says that no state shall “deprive any person of life, liberty, or property, without due process of law . . .”

Advocates of marriage redefinition point out that Loving was based on a “due process/fundamental right” argument, not just an equal protection one. True — but here is the entire text of the Court’s fundamental rights analysis in Loving:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, (1942). See also Maynard v. Hill, (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

This part of the opinion was a scant 169 words out of over 2,500 in the decision. However, it, too, makes reference to “racial classifications” and “invidious racial discriminations.” There is thus no reason to believe that Loving forbids classifications on some basis other than race.

Numerous courts considering same-sex “marriage” lawsuits have rejected the Loving analogy. As the judge in a 2003 Indiana case (Morrison v. Sadler) noted, “Anti-miscegenation laws, because they interfered with the traditional marriage relationships in pursuit of opprobrious racial segregation policies, had no legitimate connection to the institution of marriage itself… . [W]hatever else marriage is about, it is not about racial segregation.” In contrast, however, “restrictions against same-sex marriage reinforce, rather than disrupt, the traditional understanding of marriage as a unique relationship between a woman and a man. Marriage traditionally and definitionally has had to do with the sex of each participant.”

A Superior Court in New Jersey came to a similar conclusion in a similar case (Lewis v. Harris) in 2003:

Plaintiffs’ reliance on decisions striking down statutes that prohibit interracial marriage is misplaced. These decisions derive from Constitutional amendments prohibiting racial discrimination and subjecting laws that classify individuals based on race to the highest level of scrutiny. No similar Constitutional provisions outlaw statutory classifications based on sexual orientation … . Comparing the State’s marriage statutes to laws perpetuating racial prejudice, therefore, is inapposite.

Individuals challenging bans on interracial marriage had a powerful weapon: Federal Constitutional provisions, passed by Congress and adopted by State Legislatures, that expressly prohibited States from denying recognized rights based on race. It was entirely appropriate for the courts to enforce those duly enacted Constitutional provisions by striking down statutes that made race a qualifying condition for access to a recognized right to marry. Plaintiffs, on the other hand, assert their claims in the absence of express Constitutional provisions supporting their position, and ask the court to circumvent the Legislative process by creating a right that has never before been recognized in this country.

The mandate for racial equality is firmly enshrined in both the Federal and State Constitutions. Importantly, two amendments to the United States Constitution expressly address racial equality [the 13th and 14th]… .

The Supreme Court’s decision in Loving v. Virginia is predicated entirely on the Fourteenth Amendment’s prohibition of racial classifications… .

No similar Constitutional provision accords heightened protection to individuals who claim that statutes discriminate on the basis of sexual orientation… .

… [P]laintiffs … lack the significant legal foundation that was available to the plaintiffs in Loving to demand judicial recognition of the rights they seek.

In November 2014, a panel from the U.S. Court of Appeals for the Sixth Circuit upheld one-man-one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee. It is the appeal of these cases (consolidated under the case name Obergefell v. Hodges) which is now before the Supreme Court.

The Sixth Circuit panel noted another compelling reason for questioning whether Loving provides a precedent for allowing same-sex couples to legally “marry.” In 1972, a case out of Minnesota (Baker v. Nelson), making the same claims for same-sex “marriage” now being asserted, was appealed to the Supreme Court. It dismissed the case “for want of a substantial federal question,” a disposal which provides a binding precedent on all lower courts. It is irrational to claim that Loving established a right to same-sex “marriage,” when the Supreme Court already rejected that argument five years after Loving was decided:

Matters do not change because Loving v. Virginia held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of … as essential to the very definition of that term.” Windsor, 133 S. Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.

Natural Marriage Builds Bridges, Not Walls

The clear purpose of the bans on interracial marriage was to build walls between two groups of people in society, blacks and whites. Such laws were designed to reinforce a system of racial segregation, keeping the races apart from one another.

In contrast, defining marriage as the union of male and female has exactly the opposite intent and effect. Rather than building walls between two classes of people, it creates a bridge across the most fundamental gap in humanity — the gap between male and female. Bridging the divide of the sexes by uniting men and women in marriage is common to all human civilizations, and serves the good of society.

Interracial marriage does not change the definition of marriage, and laws against interracial marriage had as their only purpose preserving a social system of racial segregation.

Homosexual “marriage,” on the other hand, changes the fundamental definition of the institution, and would form at least three segregated forms of marriage: male-only unions, female-only unions, and opposite-sex unions.

Legally defining marriage as the union of one man and one woman does not burden the institution of marriage. Instead, it preserves marriage’s nature and purpose. Homosexual marriage is not a “civil right,” it is a political demand that should be denied.

Note: Portions of this post were excerpted from Peter Sprigg’s book Outrage: How Gay Activists and Liberal Judges are Trashing Democracy to Redefine Marriage (Washington, DC: Regnery Publishing, Inc., 2004).

Liberal columnist agrees — “family values” debate is about “what words actually mean”

by Peter Sprigg

June 11, 2015

E. J. Dionne, a columnist for the Washington Post who is generally left of center, wrote a piece for today’s paper in which he called for “a searching national debate over family values.” Bravo — I heartily agree.

Dionne goes on to say, “It will not be about whether we as a country are for them. We are. What’s required is a grounded and candid discussion about what those words actually mean.” Right again.

The debate about “what those words actually mean” is exactly the debate we have been engaged in for four or five decades now.

In fact, we are now only weeks away from a U.S. Supreme Court ruling about what one very important word — “marriage” — actually means. That debate has been ongoing at least since 1993, when a Hawaii court became the first in the country to rule that defining marriage the only way it had ever been defined in the United States — as the union of one man and one woman — might somehow offend constitutional principles.

It is Dionne’s fellow liberals, however, who try to deny that “what … words actually mean” is what the same-sex “marriage” debate is about. They claim that their efforts are to end “discrimination” and to affirm the equal dignity of gay-identified people — not to “redefine marriage.” They claim that the efforts of conservatives are intended to stigmatize homosexuals and to impose religious dogma on secular law.

The liberals are wrong — the real debate is about what the word “marriage” means. Our belief is that “marriage” is intrinsically the union of a man and a woman, and that this definition cannot be changed because it is rooted in the order of nature itself. It always requires the contribution of one man and one woman to create a new human life, and it is because of this immutable uniqueness of the male-female relationship that we treat such relationships uniquely under the law.

Whatever the merits of a four-wheeled vehicle may be, it cannot be a “bicycle” — because a bicycle, by definition, has two wheels. By the same token, whatever satisfaction some may gain from a same-sex relationship, it can never be a “marriage” — because marriage, by definition, is the union of a man and a woman.

Liberals may be very sincere in the goals they seek to achieve in the marriage debate — but there is simply no denying that the method they are using to try to achieve them is to change the definition of the word “marriage.”

Although “marriage” is at the forefront right now, there have been similar debates about what “family” means. We argue that “families” are formed in only three ways — by blood, marriage, or adoption. Mere cohabitation with a sexual partner does not create a “family;” neither does living in the same house with a partner’s children.

The context for Dionne’s column was his observations about the obvious love and devotion between members of the Biden family — specifically, between Vice President Joe Biden and his late son Beau, who tragically died of cancer recently at the age of 46. There is no question that liberals like Joe Biden can love their family members as deeply as any “pro-family” conservative does.

This is not the issue in debate. The issue is that liberals have adopted the position that the meaning of “family” is almost infinitely malleable, defined by emotional standards rather than objective ones. However, the Bidens are not “family” because they love each other — they love each other because they are family.

The problem with redefining “marriage” and “family” is that if they can mean anything, then they come to mean nothing. So, two cheers for E. J. Dionne for recognizing that the “national debate” is about “what those words actually mean.”

Anthony Kennedy and the “Millennia” of Marriage

by Peter Sprigg

May 8, 2015

After last week’s oral arguments before the Supreme Court, those who seek a ruling that the Constitution of the United States requires a redefinition of marriage to include same-sex couples should be wary of over-confidence.

As usual, the eyes and ears of Court observers were focused on Justice Anthony Kennedy. He is often the “swing vote” between the Court’s liberal bloc (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and the more consistent conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Last week’s arguments gave every indication that Kennedy will cast the deciding vote again.

Some advocates of redefining marriage see victory in the current case — an appeal of a decision in which the U.S. Court of Appeals for the Sixth Circuit upheld one-man, one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee — as a foregone conclusion. They base their confidence on opinions Justice Kennedy has written in earlier cases which upheld the pro-homosexual cause — most notably, the 2013 ruling which struck down the federal definition of marriage in the Defense of Marriage Act (DOMA).

It is dangerous to try to predict the outcome of a case based on oral arguments. By their very nature, they lead the Justices to attack, or at least probe and test, the weak points of both side’s arguments. However, Justice Kennedy’s questioning in the current case (or cases, consolidated under the name of one of them, Obergefell v. Hodges) at least showed an understanding of some issues which advocates of redefinition tend to gloss over or deny.

An ancient definition

For example, the very first question that Kennedy raised for Mary Bonauto, attorney for the petitioners seeking licenses for same-sex civil marriages, reflected two key elements of the way conservatives believe the issue should be framed. Liberals argue that the issue is “access” to the institution of marriage; conservatives say the issue is the fundamental definition of marriage. Liberals focus on the recent adoption of laws and state constitutional amendments to “ban same-sex marriage,” while conservatives point out those measures merely preserve the longstanding definition of marriage.

Kennedy took the conservative side of both points when he said, “…[T]he word that keeps coming back to me in this case … is ‘millennia.’ … This definition has been with us for millennia. And … it’s very difficult for the Court to say, oh, well…. we know better.”

Bonauto seemed to want to avoid this topic of the antiquity and universality of marriage as a male-female union, arguing, “The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow.” However, Kennedy returned to the larger perspective, noting, “If you read … about the Kalahari people … or ancient peoples, they didn’t have a government like this. They made it [marriage] themselves and it was man and woman.”

No “fundamental right”

Advocates for marriage redefinition use the tactic of throwing several constitutional arguments at the wall to see which will stick. One of these is the argument that the marriage laws deny to homosexuals the “fundamental right to marry,” which the Supreme Court has declared in previous cases that individuals have as a “liberty” interest protected by the Due Process clause of the 14th Amendment. In questioning U.S. Solicitor General Donald Verrilli, who was also given time to argue in favor of marriage redefinition on behalf of the Obama Administration, Justice Kennedy pointed out (and Verrilli appeared to concede) the Achilles’ heel of the “fundamental rights” argument in this context.

The Supreme Court laid down criteria for identifying new “fundamental rights” in a 1997 case called Washington v. Glucksberg, in which the Court rejected the assertion that assisted suicide is a “fundamental right.” First, there must be a “careful description” of the asserted fundamental liberty interest. In the suicide case, they said the right being asserted was much narrower than a so-called “right to die.” Second, the interest, so described, must be “objectively, deeply rooted in this Nation’s history, legal traditions, and practices.”

In the marriage context, advocates for redefinition argue that the “fundamental right to marry” implicitly includes the right to marry the person of your choice, and therefore they are not seeking a new right to same-sex “marriage.” However, Kennedy asked Verrilli, “I’m interested in your comments on Glucksberg, which says that we should have to define a fundamental right in its narrowest terms.”

It is plain that a “careful description” of the “right” currently being asserted is “the right to marry a person of the same sex.” It is equally obvious that no such right is “deeply rooted in this Nation’s history,” and Verrilli made no effort to claim that it was, conceding to Kennedy, “We haven’t made the fundamental rights argument under Glucksberg.”

Why should the State have to yield?”

Although the central issue before the Court is whether states have a constitutional obligation to issue marriage licenses to same-sex couples, there were separate arguments on a related question which had been litigated in some states — whether a state which licenses only opposite-sex marriage must nevertheless recognize same-sex unions that were legally contracted elsewhere. One very real possibility, ignored by most of the media, is that the Supreme Court could rule that states do not have to issue licenses to same-sex couples, but do have to recognize such unions from other states.

However, Justice Kennedy challenged Douglas Hallward-Driemeier, the attorney arguing for such recognition, by pointing out the threat to the State’s public policy choice. As Kennedy noted, the recognition question presumes “that the State does have a sufficient interest so that you need not allow the marriages … in that State… . But then suddenly, if you’re [from] out of State it’s different. Why should the State have to yield” to another State’s policy?

A “biological mom and dad”

Not all of Justice Kennedy’s questioning was sympathetic to conservatives, of course. When John J. Bursch of Michigan was arguing in defense of the four states, Justice Kennedy seemed to have some trouble understanding, or engaging with, the actual argument Bursch was making.

For example, Bursch had argued that marriage “developed to serve purposes that, by their nature, arise from biology” — meaning the unique potential for natural procreation that is only present in opposite-sex couples, never in same-sex ones. He warned, ” … [W]hen you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.”  Later, Bursch suggested that a key purpose of marriage is “to inextricably bond kids to their biological moms and dads.”

Justice Kennedy complained, ” … [Y]ou had some premise that only opposite-sex couples can have a bonding with the child. That’s … just a wrong premise.” However, Bursch was not saying that only opposite-sex couples can bond with a child, but that the state has a unique interest in encouraging the man and woman who are biologically responsible for the child’s existence to do so.

Justice Kennedy seemed to be missing Bursch’s point that there is particular value in connecting children to their biological parents, and in having a parent of both sexes. The more liberal justices just bluntly disagreed. After Bursch said, “I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible,” Justice Sonia Sotomayor immediately responded, “No, I — I think they should be bound to their parent …”

Do unmarried people lack “dignity?”

Another disturbing aspect of Justice Kennedy’s questioning involved the amorphous concept of “dignity.” Bursch argued, ” … [What] they [the Plaintiffs] are asking you to do is to take an institution, which was never intended to be dignitary [sic] bestowing, and make it dignitary bestowing. That’s their whole argument.”

Kennedy seemed puzzled. “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage… and these parties say they want to have that — that same ennoblement.”

Bursch, however, held his ground, returning to a hypothetical “world where marriage doesn’t exist and the State is trying to figure out, ‘How do we link these kids with their biological moms and dads when possible’ … [D]ignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone …”

Bursch also pointed out a key problem with the assumption that marriage “bestows dignity” — namely, that it implies that people who are unmarried lack dignity. ” … [I]f you turn it into a dignity-bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm.”

For example, if an unmarried woman and her unmarried adult daughter are jointly raising the younger woman’s minor child (not an uncommon family structure), does the fact that the consanguinity provisions of the law prevent mother and daughter from marrying deprive their household of “dignity?” It’s hard to imagine the Supreme Court would say such a thing.

Conclusion

Justice Kennedy seems to realize that marriage is an ancient institution, and that the male-female union has always been fundamental to its definition, not a mere incidental regulation imposed upon it. He seems to acknowledge it would be arrogant for the Court to overturn such an ancient definition, and to recognize that same-sex “marriage” is no “fundamental right.” He also seems concerned (as he was in the DOMA case) for the power of states to determine their own marriage policy.

Let us hope he can bring himself to acknowledge the unique value of bonding children to parents of both sexes with whom they have a biological (not just legal) relationship, and that he recognizes such a child-centered interest (not an adult-centered interest in “dignity”) is what justifies the institution of civil marriage in the first place. 

Regnerus Revisited: American Sociological Association is Wrong about Homosexual Parents and “Stability”

by Peter Sprigg

April 24, 2015

One of the key issues regularly raised in the debate over redefining marriage to include same-sex couples has to do with the well-being of children.

Defenders of the historical and natural definition of marriage as the union of one man and one woman argue that children have a right to a relationship with both the man and woman whose union created them, and that research shows children raised by their married, biological mother and father have, on average, better life outcomes than children from other family structures.

Advocates of redefining marriage, on the other hand, argue that children already being raised by same-sex couples would benefit from the legal stability and social affirmation associated with marriage. They also insist that research which has specifically compared children of homosexual parents to children of heterosexual parents shows, “The scholarly consensus is clear and consistent: children of same-sex parents fare just as well as children of different-sex parents.”

The latter quote is drawn from an amicus curiae (friend of the court) brief filed in the U.S. Supreme Court by the American Sociological Association (ASA). It’s one of dozens filed by advocates on both sides in the case being argued under the name Obergefell v. Hodges. Advocates of redefining marriage are asking the high court to overturn a decision of the U.S. Court of Appeals for the Sixth Circuit, which upheld laws in Michigan, Ohio, Kentucky, and Tennessee that define marriage as the union of one man and one woman.

A separate brief filed in support of the states on behalf of the American College of Pediatricians (ACP), Family Watch International, and several scholars, has thoroughly rebutted most of the arguments in the ASA brief. The ACP brief, using the most recent studies with the best methodology (drawing on large government surveys in Canada and the United States), shows children of same-sex parents are disadvantaged on a number of measures relative to children raised by their married, biological mother and father. (Patrick Fagan of the Marriage and Religion Research Institute — MARRI — has summarized the ACP rebuttal of the ASA in an op-ed.)

This revolution in homosexual parenting research began with publication in 2012 of findings from the New Family Structures Study, organized by Dr. Mark Regnerus, a sociologist at the University of Texas (and one of the signers of the ACP brief). Although homosexual activists embarked on a nearly hysterical campaign of vilification of Regnerus, his research was not “discredited,” as liberals commonly claim. I have written in detail about the Regnerus study here and here.

While the ASA brief is misleading on the nature and state of the evidence, there is one assertion they make about the Regnerus research which is flatly false — so plainly inaccurate, in fact, that it makes one question whether the authors of the brief have even looked at the scholarly articles they are critiquing.

The false statements are these:

The study [cited as Regnerus 2012a] stripped away all divorced, single, and stepparent families from the different-sex parent group, leaving only stable, married, different-sex parent families as the comparison. (ASA Brief, p. 23)

And:

Regnerus 2012b [a follow-up report with more detailed analysis of the data] continues to ignore stability as the primary factor in child outcomes. (ASA Brief, p. 26)

In reality, Regnerus 2012a included comparisons for eight different family structures. In addition to what Regnerus calls the “intact, biological family” or “IBF” (the “stable, married, different-sex parent families” referred to by the ASA) and two involving homosexual parents (“lesbian mother” or “LM” and “gay father” or “GF”), his comparison included five other family structures with heterosexual parents which might be considered “unstable,” including divorced, stepfamily, single-parent, and adoptive households. Even compared with these “unstable” households, the households headed by homosexual parents did not fare well. For example, Regnerus notes:

Of the 239 possible between-group differences here — not counting those differences with Group 1 (IBFs) already described earlier — the young-adult children of lesbian mothers display 57 … that are [statistically] significant … and 44 … that are significant after controls …. The majority of those differences are in suboptimal directions, meaning that LMs display worse outcomes [emphasis added]. (Regnerus 2012a, p. 764)

In his follow-up article (“Regnerus 2012b”), Regnerus broke down the data on households in more detail, listing fifteen different household structures. To make the meaning of the homosexual parent categories more clear, he described them as “fathers who had a gay relationship” or “FGR” and “mothers who had a lesbian relationship” or “MLR.” In response to criticism that he did not distinguish between children who had lived in the same household with a homosexual parent and that parent’s partner from those who did not, the latter category was broken down to “MLR + partner” and “MLR no partner.” (Only two subjects, however, had lived with a homosexual parent and one partner for the entire duration of their childhood from birth to age 18 — as Regnerus clearly noted.)

Apart from the IBF and (now) three homosexual parent categories, the other eleven categories all involved children of heterosexual parents who had “unstable” household settings — households where the parents divorced, were never married, one parent died, or in which the child was adopted as an infant (with variations based on subsequent relationships and/or remarriage).

Critics had also claimed that children were more affected by family “instability” than by parental sexual orientation, and those who lived with a partner were presumed to have more stable relationships. Directly contrary to what the ASA brief claimed, Regnerus reported specifically on comparisons between the “MLR + partner” category and other “unstable” categories:

Group 3 (MLRs who lived with their mother’s partner) compare less favorably with:

  • Group 8 (divorced, lived with mother, no subsequent relationships): 12 differences.
  • Group 13 (parents married until one died, no subsequent relationships): 15 differences. (Regnerus 2012b, p. 1376)

Regnerus reports the raw data for all fifteen family structures, and all forty outcome measures. There are thus a total of 440 comparisons between households with children of a lesbian mother and a partner and unstable heterosexual households (11 unstable household categories times 40 outcome measures). He also reports which of the differences reach the level of statistical significance, not only in comparison to the intact biological family, but also in comparison to the “MLR + partner” category.

I did my own analysis of the data in the charts of the Regnerus 2012b article, and found that 84 of these comparisons showed statistically significant differences. Of those, 76 showed worse outcomes for the children of lesbian mothers with a partner; only 8 of those comparisons showed better outcomes for those children. Five of the eight “better” outcomes for “MLR + partner” households were on a single outcome measures — daughters of lesbian mothers with a partner (but not of those without a partner) have fewer male sexual partners. Having multiple sexual partners of either sex is, rightly, considered an undesirable outcome.

More recent studies using government survey data (which also show negative outcomes for children of homosexual parents) have, arguably, surpassed Regnerus in the quality of the sample studied. However, the Regnerus study remains extremely valuable for the large number of separate outcome measures (forty).

It is also valuable because it does make direct comparisons (contrary to the ASA’s claim) between households with homosexual parents and many different unstable household forms headed by heterosexuals. It thus thoroughly debunks the myth that only “instability” explains the harmful outcomes identified for children of homosexuals.

No, Redefining Marriage Will Not Help the Economy

by Peter Sprigg

April 2, 2015

In coming weeks, the U.S. Supreme Court will be flooded with “amicus curiae” (“friend-of-the-court”) briefs detailing the specialized arguments of a variety of interests on whether they should redefine marriage to include same-sex couples in all fifty states.

One of the strangest arguments was submitted on March 5 by “379 employers and organizations representing employers.” It boiled down to this: the Supreme Court should force genderless marriage on every state — in order to save us same paperwork.

You see, many corporations now give benefits, such as health insurance, to the same-sex “domestic partners” of their homosexual employees. If those employees are not legally married, however, the benefits are treated differently for tax purposes, which complicates the accounting.

For this, we are supposed to change the definition of our most fundamental social institution.

The employers’ brief includes other arguments as well — although they are even more nebulous. For example, they claim that “discrimination impairs an employer’s ability to compete for the best workforce.” If this is true, however, you would think companies with internal nondiscrimination policies and domestic partner benefits would want to retain that competitive advantage — rather than demanding that the courts forcibly level the playing field.

The brief claims that homosexual employees will not want to relocate to states where they cannot legally “marry” a same-sex partner. If this were such an important factor in being able to obtain “the best workforce,” however, you would think it would show up in macroeconomic data.

For example, growth in jobs, personal income, and population are some key measures of a state’s economic health. We can also gauge a state’s commitment to the natural marriage of one man and one woman or to the genderless redefinition of marriage by the results of the democratic process there. There are thirty states in which the people voted to define marriage as the union of one man and one woman in their state constitutions. There are ten states which did not adopt such a limitation, but which instead changed the definition of marriage to include same-sex couples via the democratic process (either a legislative vote, popular referendum, or both), not through a  court order.

If the theory that redefining marriage aids economic competitiveness is correct, then we would expect the ten states that voluntarily redefined marriage to be disproportionately represented in the fastest growing states, while the thirty that acted to defend natural marriage should suffer.

The data show the exact opposite. The top ten states in personal income growth between the second and third quarters of 2014, as reported by the Department of Commerce in December, did include three of the states that freely chose to redefine marriage — New York (at #6), Washington (7), and Hawaii (with an amendment that prevented the courts, but not the legislature, from redefining marriage) at number 9. However, four of the top five states in personal income growth were marriage amendment states — Texas (1), Utah (3), Arizona (4), and Nevada (5).

Among the top ten states in population growth from the 2010 census to July 1, 2014, two (Washington at #6, and Hawaii at #9) were marriage-redefining states. However, all eight others, including all of the top five (North Dakota, Texas, Colorado, Utah, Arizona) were marriage amendment states.

Finally, among the top ten states in job growth, according to June 2014 projections by Kiplinger, all ten were marriage amendment states (North Dakota, Texas, Arizona, Utah, Colorado, Idaho, Florida, Oregon, Georgia, and South Dakota). If anything, these data suggest that redefining marriage may hinder economic growth, not help it.

Some may argue that it doesn’t matter if the redefinition of marriage arrived via democratic process or court order — what matters is that same-sex couples now get civil marriage licenses. However, being among the twelve remaining states that have never issued such licenses did not stop Texas from ranking first in income growth, and second in both population and job growth. It did not stop North Dakota from ranking first in both population and job growth; nor did it stop South Dakota from being in the top ten in two of these categories or Georgia from being in the top ten in one.

The economic argument for redefining marriage is not, strictly speaking, a legal or constitutional argument at all. It is a political argument, which the 379 employers are welcome to make before the legislatures or the people of the states. One thing I would hope that all Americans would agree on is this: the Supreme Court cannot — it must not — make its decisions on constitutional claims based on what the Justices (or anyone else) prefers as public policy.

However, we should be especially wary of making such decisions based on assertions that are so easily shown to be empirically false.

Utah’s Unwise Rush to Judgment on Sexual Orientation and Gender Identity Bill

by Peter Sprigg

March 12, 2015

Both houses of the Utah state legislature have now passed, and the state’s Republican Governor Gary Herbert has said he will sign, S.B. 296, a bill which purports to be a historic compromise prohibiting discrimination in employment and housing on the basis of “sexual orientation” and “gender identity” (“public accommodations” are not included), while at the same time exempting religious organizations and granting protections for the religious liberty of individual employees.

Endorsement of the bill and its principles by the Church of Jesus Christ of Latter-Day Saints virtually assured passage in the heavily Mormon state. SB 296 was approved 23-5 in the Senate on March 6, and 65-10 in the House on March 11.

Family Research Council does not believe that “sexual orientation” or “gender identity” are characteristics comparable to those which are usually protected categories under civil rights law, because they are not inborn, involuntary, immutable, innocuous, and/or in the Constitution in the way that race and sex are, for example. Therefore, there is no justification in principle for interfering in the private choices of private economic actors with respect to these issues.

I am also skeptical, in the current cultural climate, as to whether the “religious protections” in such a compromise will ever be as vigorously maintained as the “non-discrimination” provisions.

However, there are specific technical problems with the way that S.B. 296 was drafted which should prevent it from being a model for other states, as is being touted by some. (The text of S.B. 296, with lines numbered, is available online at:

http://le.utah.gov/~2015/bills/static/SB0296.html )

Definitions: “Gender Identity”

Two of these problems involve definitions in the bill. The first is found in lines 105-106, where it says:

QUOTE

Gender identity” has the meaning provided in the Diagnostic and Statistical Manual (DSM-5).

END QUOTE

The “DSM-5” is the “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition,” published by the American Psychiatric Association in 2013.

It is very odd to have a “definition” in a piece of legislation which does not include what the definition actually is—but instead makes reference to another source (a non-legal, non-statutory, non-constitutional, non-governmental, private source at that).

I think I understand the rationale for this—the authors of the bill want the definition to be scientifically impeccable, and therefore want to reference a scientific source rather than write their own definition. However, this is problematic for several reasons.

The DSM-5 is not only published by a private organization (the American Psychiatric Association), but it is a copyrighted work (could that be why the bill doesn’t quote it?). I have the impression that the APA guards the copyright very jealously, because unlike a lot of copyrighted works, it is virtually impossible to find even excerpts of its text online.

To purchase a copy is very expensive—on Amazon, it is $145 for the hardback version, and $107 for the paperback. Some libraries may have it, but when I went to the Martin Luther King, Jr. Library, which is the main branch of the District of Columbia Public Library, they did not have it—they only had the earlier DSM-IV-TR (2000). All this is to say that it is not all that easy to find out what the definition of “gender identity” in the DSM-5 actually is. It took me several hours of effort (and a trip to the National Library of Medicine) to actually locate it. That hardly seems like the most transparent way of legislating.

While referencing the DSM-5 may make the authors appear to be up-to-date scientifically now, the DSM is inherently a publication under periodic revision. As noted, it was only 13 years between the DSM-IV (2000) and the DSM-5 (2013). So in 13 years, will the up-to-date scientific definition of “gender identity” which Utah legislators referenced in their new law become the out-of-date definition when the DSM-6 comes out? Surely the law cannot be written to automatically be updated to the latest version of the DSM. It would be far better for legislators to actually write down in the text of the law the definitions which they are applying.

When I finally located both the DSM-IV-TR (2000) and the DSM-5 (2013), I found that indeed the definition of “gender identity” had changed. The DSM in 2000 included only this cryptic definition: “A person’s inner conviction of being male or female.”

The DSM-5 definition is longer: “A category of social identity that refers to an individual’s identification as male, female, or, occasionally, some category other than male or female.”

How many of the 88 Utah legislators who voted for this bill understood that they were creating special protections not only for men who claim to be women and women who claim to be men, but also for people who insist that they are neither male nor female?

Definitions: “Sex” and “Gender”

The other problematic definition in S.B. 296 is that of “sex.” On line 777 of the bill, it says:

QUOTE

Sex” means gender . . .

END QUOTE

Really? According to my dictionary, it’s the other way around. Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2005), under “gender,” lists “SEX” as a synonym. However, the first definition under “sex” is: “either of the two major forms of individuals … that are distinguished respectively as female or male esp. on the basis of their reproductive organs and structures.”

If the legislature wanted to reference the DSM-5 as the definitive source for a definition of “gender identity,” why did it not do the same for “sex” and “gender?”

The DSM-5 definition of “sex” is: “Biological indication of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and nonambiguous internal and external genitalia.”

On the other hand, the DSM-5 definition of “gender” is: “The public (and usually legally recognized) lived role as boy or girl, man or woman. Biological factors are seen as contributing in interaction with social and psychological factors to gender development.”

These are hardly synonyms, as the bill states. If legislators feel that they must pass laws conceding that one’s “gender identity” can be distinguished from one’s “sex,” at least they should insist that the word “sex” itself be defined in biological terms (as the DSM-5 does), and not by some circular reference to “gender.”

Religious Liberty Protections”

The second major area of concern is the section with the much ballyhooed “religious liberty protections.” First, the bill exempts “a religious organization” and “the Boy Scouts of America” from its definition of an “employer” subject to the employment discrimination provisions (lines 92-100). Note, however, that this leaves profit-making businesses (such as Christian publishers and Christian book stores) and other organizations like non-religious day care centers still vulnerable to being forced to hire homosexual and transgender persons.

More attention has been focused on the unique “religious liberty protections” for individual employees (lines 693-706). Constituting a scant fourteen lines out of over a thousand in the bill, they read as follows:

QUOTE

69334A-5-112. Religious liberty protections — Expressing beliefs and commitments in
694workplace — Prohibition on employment actions against certain employee speech.
695(1) An employee may express the employee’s religious or moral beliefs and
696commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on
697equal terms with similar types of expression of beliefs or commitments allowed by the
698employer in the workplace, unless the expression is in direct conflict with the essential
699business-related interests of the employer.
700(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or
701retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and
702conditions of employment against any person otherwise qualified, for lawful expression or
703expressive activity outside of the workplace regarding the person’s religious, political, or
704personal convictions, including convictions about marriage, family, or sexuality, unless the
705expression or expressive activity is in direct conflict with the essential business-related
706interests of the employer.

END QUOTE

At first glance, this passage appears to address some of the “horror stories” that have been in the news regarding punishments or adverse employment actions taken against employees for expressing traditional values on marriage, family, and sexuality either within (lines 695-699) or outside (lines 700-706) the workplace.

However, a huge question leaps out—how are these “protections” to be enforced?

First of all, the exemption from the “protection” if the free expression “is in direct conflict with the essential business-related interests of the employer” (lines 698-99, 705-706) could end up being the exemption that eats the protection. What if an employer has an internal, corporate non-discrimination policy protecting sexual orientation and gender identity, and claims on that basis alone that excluding dissenters is an “essential business-related interest?” In what government forum, if any, could the employee challenge such a determination?

It is notable that a distinction is made between an employee’s free expression within the workplace and outside the workplace. With the respect to the former, there is an affirmative statement of the rights the employee possesses—but nothing regarding an obligation being placed on the employer to respect those rights.

Only with respect to expression outside of the workplace is there an active prohibition of negative action by the employer. To some extent this is understandable—an employer certainly has some legitimate interest in communication that occurs in the workplace, while they have very little legitimate interest in expression outside the workplace. However, it is unclear how that line is to be drawn, or who is to draw it. Allowing the employer to draw it makes the “protections” meaningless, since it is from the employer that the employees need protection.

One answer to this would be to make explicit that a violation of the religious liberty protections in Section 34A-5-112 constitutes a prohibited form of discrimination based on “religion” under Section 34A-5-106 (lines 277-536) of the bill, and is subject to the full set of remedies set out in Section 34A-5-107 (lines 537-673). Since the bill is being sold as one representing vigorous action both to prevent “discrimination” and to protect religious liberty, the mechanisms to advance both goals should be the same in order to assure parity between the two objectives.

The most optimistic view would be that this is already implicit in the bill—but it would be far more reassuring if it were made explicit. Even this approach is imperfect, however, since the “protections” should apply to any expression of opinion on these subjects, even if it is not rooted in a particular religious teaching.

An alternative would be to establish a specific set of remedies for the religious protections in the bill. It might also help to remove the section about “essential business-related interests” from the section dealing with expression outside the workplace.

Without explicit remedies, I fear these “religious liberty protections” will be a toothless tiger.

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