Author archives: Peter Sprigg

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.

Lesson from Obama Deception on Same-Sex “Marriage”: Watch What He Does, Not What He Says

by Peter Sprigg

February 13, 2015

News broke this week that former Obama political strategist David Axelrod has published a book in which he admits that, as Time magazine put it, “Barack Obama misled Americans for his own political benefit when he claimed in the 2008 election to oppose same sex marriage for religious reasons.”

It may well be that adopting this posture was effective in reassuring some moderate to left-leaning evangelicals, and socially conservative pastors and members in African American churches, who were drawn to Obama’s historic candidacy but would not have supported a redefinition of “marriage.”

Mr. Obama continued to publicly oppose a redefinition of marriage until he announced a change of heart in 2012.

The revelation that Mr. Obama’s position was one of convenience rather than conviction comes as no surprise to Family Research Council. President Obama’s actions have always spoken louder than his words, and his actions always belied his claim to oppose same-sex “marriage.”

As early as August of 2008, shortly before then-Senator Obama accepted the Democratic nomination for President, I wrote something that seems to be essentially what Axelrod is now verifying:

. .  [I]t is clear that Obama’s supposed “opposition” to “gay marriage” is a matter of political strategy—nothing more.   All it means is that he is unwilling, for political reasons, to make legalizing it a policy priority for which he will actively campaign.”

Below is reprinted in full the piece that I wrote for FRC Action (which is still available on the web):

Obama Backs Same-Sex “Marriage”

By Peter Sprigg
FRC Action
August 2008
http://www.frcaction.org/get.cfm?i=WX08H01

 

In recent weeks, there has been a spate of stories suggesting that Barack Obama has begun moving to the center.   On issues ranging from the Iraq war to terrorist surveillance to gun control, Obama has been moderating some of his previous liberal positions.

But there is at least one issue on which Obama has been moving steadily to the left.   In fact, it’s now fair to say it—Barack Obama supports same-sex “marriage.” All that’s left is for him to admit it.

You may not find a statement anywhere from Obama in which he comes right out and says, “I support same-sex marriage.”   In fact, on March 2, Obama said, “I will tell you that I don’t believe in gay marriage … . I believe in civil unions … . [but] I don’t think it should be called marriage.”

But when Obama says, “I don’t believe in gay marriage,” what is he really saying?   The evidence suggests that he is not saying what most people would mean by that statement-namely, that there is good reason why marriage, in principle, ought to be defined as the union of one man and one woman.

In fact, when you examine it closely, it is clear that Obama’s supposed “opposition” to “gay marriage” is a matter of political strategy—nothing more.   All it means is that he is unwilling, for political reasons, to make legalizing it a policy priority for which he will actively campaign.

For example, Obama has more than once endorsed the analogy, often used by activists, between homosexual “marriage” and interracial marriage.   He told The Advocate, “I’m the product of a mixed marriage that would have been illegal in 12 states when I was born.   That doesn’t mean that had I been an adviser to Dr. King back then, I would have told him to lead with repealing an antimiscegenation law, because it just might not have been the best strategy in terms of moving broader equality forward.”

Presumably, Obama supports legal recognition of his parents’ marriage-so the comparison would suggest that he supports legal recognition of same-sex “marriage” also, but worries only that the current campaign for it is not “the best strategy.”

When the California Supreme Court legalized same-sex “marriage” in May, it would have been a perfect opportunity for Obama to display “centrist” credentials.   To be consistent with his stated position on the issue, Obama should have condemned the court’s decision, while endorsing the status quo of the generous “domestic partner” benefits already granted under state law.   Instead, his campaign announced that Obama “respects the decision of the California Supreme Court.”

Are there any policies safeguarding man-woman marriage that Obama will endorse?   Not constitutional amendments, since he has declared, “I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.”

What about the federal Defense of Marriage Act?   This is the 1996 statute, signed into law by President Bill Clinton, which defined marriage for all purposes under federal law as the union of one man and one woman.   It also declared that states would have no obligation to recognize same-sex “marriages” from other states.

Obama favors complete repeal of this law, which would open the door for the federal government to recognize same-sex marriages in Massachusetts and California and grant domestic partner benefits to federal employees, and would in effect allow California to redefine marriage for the entire country.

I haven’t found any evidence that Obama supports statutory provisions at the state level to define marriage as the union of a man and a woman, either.   He joined the Illinois State Senate the year after that state adopted its Defense of Marriage Act.

The final nail in the coffin for Obama’s supposed “opposition” to same-sex marriage can be found in a letter he wrote to a California “LGBT Pride” group on June 29.   Obama concludes the letter by saying, “I want to congratulate all of you who have shown your love for each other by getting married these last few weeks.”

To summarize, Obama supports granting 100% of the legal rights and benefits of marriage to homosexual couples; opposes virtually any legal means available of defining marriage as the union of a man and a woman (calling them “divisive and discriminatory”); “respects” courts that unilaterally overturn the democratically determined definition of marriage; compares legalizing same-sex “marriage” with legalizing interracial marriage; and “congratulates” homosexual couples who have entered into legally-recognized civil marriages.

This is not the description of someone who opposes same-sex “marriage.”   Obama supports same-sex “marriage”—and he should be honest enough to say that to American voters. 

Ten articles that were worth reading in 2014

by Peter Sprigg

January 8, 2015

I spent my final work day of 2014 doing some long-overdue filing—and decided to share links to some of the articles that earned from me the coveted (?) designation of “KEEP.”

These are not all articles I agree with. Some are by authors with whom I vigorously disagree, but they reveal something interesting or important about the “culture wars” in which we are engaged.

These are (roughly) in chronological order:

April 8, 2014

The Rise of the Same-Sex Marriage Dissidents,” by Mollie Hemingway, The Federalist

Quote:

This is what marriage law was about. Not two friends building a house together. Or two people doing other sexual activities together. It was about the sexual union of men and women and a refusal to lie about what that union and that union alone produces: the propagation of humanity. This is the only way to make sense of marriage laws throughout all time and human history. Believing in this truth is not something that is wrong, and should be a firing offense.”

April 22, 2014

Freedom to Marry, Freedom to Dissent: Why We Must Have Both,” A Public Statement, Real Clear Politics

Quote:

… [W]e are concerned that recent events, including the resignation of the CEO of Mozilla under pressure because of an anti-same-sex- marriage donation he made in 2008, signal an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree. We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.”

May 5, 2014

Freedom to Marry & Dissent, Rightly Understood,” by Ryan T. Anderson and Robert P. George, Real Clear Policy

Quote:

The government should not discriminate against or coerce those who speak and act on the belief that marriage is the union of a man and a woman.”

April 24, 2014

Opposing Gay Marriage Doesn’t Make You a Crypto-Racist,” by Jonathan Rauch, The Daily Beast

Quote:

Lots of people compare the opposition to gay marriage and the resistance to interracial relationships. It’s a flawed analogy.”

May 17, 2014

The Evolution of Marriage,” by Ryan T. Anderson (review of Marriage and Civilization: How Monogamy Made Us Human, by William Tucker), National Review Online

Quote:

It is our sexual repressions that have made us human.”

May 27, 2014

Were Christians Right About Gay Marriage All Along?” by Jay Michaelson, The Daily Beast

Quote:

According to a 2013 study, about half of gay marriages surveyed (admittedly, the study was conducted in San Francisco) were not strictly monogamous.This fact is well-known in the gay community—indeed, we assume it’s more like three-quarters… . [T]he future of marriage, in fact, may turn out to be a lot like the Christian Right’s nightmare . . .”

August 11, 2014

Tracking Christian Sexual Morality in a Same-Sex Marriage Future,” by Mark Regnerus, Public Discourse

Quote:

Churchgoing Christians who support same-sex marriage are more likely to think pornography, cohabitation, hook-ups, adultery, polyamory, and abortion are acceptable.”

October 1, 2014

The American Family Is Making a Comeback,” by Michael Wear, The Atlantic

Quote:

As the costs of family breakdown become even more apparent, Democrats’ no-judgment approach may seem insufficient in the face of a demographic and sociological tidal wave.”

December 1, 2014

The Myth of Homosexuality in Nature,” by James B. Connelly, BarbWire

Quote:

Properly speaking, homosexuality does not exist among animals…. For reasons of survival, the reproductive instinct among animals is always directed towards an individual of the opposite sex. Therefore, an animal can never be homosexual as such. Nevertheless, the interaction of other instincts (particularly dominance) can result in behavior that appears to be homosexual. Such behavior cannot be equated with an animal homosexuality.”

December 10, 2014

Seven Things I Wish My Pastor Knew About My Homosexuality,” by Jean Lloyd, Public Discourse

Quote:

Continue to love me, but remember that you cannot be more merciful than God. It isn’t mercy to affirm same-sex acts as good. Practice compassion according to the root meaning of ‘compassion’: Suffer with me. Don’t compromise truth; help me to live in harmony with it.”

Elections Deal Another Setback to the “Rainbow Revolution”

by Peter Sprigg

November 14, 2014

On October 30, just five days before the mid-term elections, the McClatchy newspaper chain ran a breathless article under the headline, “Rainbow Revolution: U.S. welcoming gay marriage, changing politics.”

Much of the focus of the article was on changes in attitudes toward homosexuality in the Republican Party. It began with an account of something that it said “would have been unimaginable even a couple years ago.” It told how “[t]he most powerful Republican in Washington,” House Speaker John Boehner, “flew to San Diego … to help raise money for an openly gay candidate for the House of Representatives” (Carl DeMaio). It reported that DeMaio, along with Richard Tisei of Massachusetts, were “[a] pair of openly gay Republicans … running in competitive House races.” According to the article, Boehner’s “decision to campaign for gay candidates was met with surprisingly nominal opposition, which he was able to brush aside quickly.”

The McClatchy article, penned by Anita Kumar, also highlighted Monica Wehby, the (heterosexual) Republican candidate for the Senate in Oregon, who ran a TV ad highlighting her support for redefining marriage, “featuring a gay man who successfully fought the state’s same-sex marriage ban.”

Democrats were not completely ignored, however. The article also cited Maine “where Democrat Mike Michaud could become the first openly gay governor in the nation.” Meanwhile, “In Colorado, Democratic Sen. Mark Udall launched a social media campaign against his Republican opponent for voting against a bill that would protect gays from discrimination.”

Apart from specific candidates, this “first story in an occasional series on the changes in American attitudes about gays and gay marriage” declared, “After decades of solid opposition, a majority of Americans now support marriage between those of the same sex.”

That was the media spin on October 30, 2014.

What a difference five days make.

DeMaio and Tisei, the two homosexual Republican Congressional candidates? Both lost.

Monica Wehby, the Republican Senate candidate who considers someone a hero for helping to overturn a popular vote defining marriage as the union of a man and a woman? She lost.

Democrats Michaud and Udall? They both lost, too.

And that “majority” that supposedly supports same-sex “marriage?” According to nationwide exit polls on Election Day, it was only 48%—exactly the same proportion who continue to oppose such a redefinition (and a decline from the 49-46% plurality which supporters of marriage redefinition had in the 2012 exit polls). This was based on a poll question asking, “Should your state legally recognize same-sex marriage?” Note that polls which correctly frame the issue by asking about the definition of marriage have consistently shown that most American continue to believe that marriage should be defined as the union of one man and one woman. For example, in this 2013 poll, when asked, ““Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples?” only 39% approved while 56% disapproved.

While the media may view the world through rainbow-colored glasses, and there may be a “rainbow revolution” underway on the subject of marriage in the courts (which, under our constitutional system, are supposed to be the least revolutionary branch of government), it is clear that actual voters—you know, “We, the People,” who are the sovereign rulers of this country—are not so eager to join this “revolution.”

As FRC President Tony Perkins pointed out after the election, the concern about candidates like DeMaio, Tisei, and Wehby “was not these candidates’ sexual orientation, but their policy orientation.” The threat to the family posed by redefining marriage, and the threat to religious liberty posed by the aggressive agenda for the forced affirmation and celebration of homosexuality, are becoming ever clearer, and a candidate’s support for these radical policies is not something that will motivate the Republican base to turn out and support them.

In fact, exit polls showed that opposition to redefining marriage remains widespread—and even dominant in several of the key battleground states which were crucial to the Republican takeover of the Senate. The most complete set of exit poll results that I was able to find in the days after the election was posted online by NBC News, and included data on the marriage question for 24 states.

In Arkansas, Republican Tom Cotton unseated Democratic incumbent Mark Pryor in a state where voters said “No” to same-sex “marriage” by a whopping margin of 69% to 27%. In North Carolina—the most recent state to adopt a marriage amendment, in 2012—Republican Thom Tillis beat Democratic incumbent Kay Hagan in a state which still opposes a revisionist view of marriage by 57% to 39%. In Louisiana, incumbent Democrat Mary Landrieu in probably in trouble in a December runoff against Republican challenger Bill Cassidy (Louisiana is the most pro-marriage state in the NBC exit polls, opposing a redefinition of marriage by 73% to 25%). In West Virginia, Republican Shelley Moore Capito will replace retiring Democratic incumbent Jay Rockefeller (the state’s voters oppose same-sex “marriage” by a 67% to 31% margin).

Meanwhile, Republican incumbents Mitch McConnell, Tim Scott, and Pat Roberts held off Democratic challengers in Kentucky (against same-sex “marriage” 64%-33%); South Carolina (62%-34%); and Kansas (51%-45%). In Georgia, Republican David Perdue held the seat of retiring incumbent Republican Saxby Chambliss (Georgia voters oppose same-sex “marriage” by 62%-34%).

Only one Democratic Senate candidate was victorious in a state where a majority of voters oppose same-sex “marriage”—incumbent Sen. Mark Warner of Virginia, who narrowly edged out establishment Republican Ed Gillespie (the state says “no” to recognizing same-sex “marriage” by 53% to 45%).

So Democrats fared extremely poorly in states that oppose same-sex “marriage.” Yet it is undeniable that the country is sharply divided on this issue. The 24 states with exit poll results on this issue reported on the NBC website included ten with majorities (and two more with pluralities) against recognizing same-sex “marriage,” eleven with majorities in favor of it, and one (Florida) perfectly mirroring the 48% to 48% tie nationwide.

Some have argued that as public opinion gradually shifts toward more people making peace with same-sex “marriage,” the Republican Party will have to abandon its staunch opposition in order to keep up with the times. Did Republicans who oppose same-sex “marriage” struggle at the polls in the states where majorities of voters reportedly support it?

The answer is no. Joni Ernst of Iowa, Dan Sullivan of Alaska, and Cory Gardner of Colorado are all Republicans who were victorious in key battleground states without endorsing same-sex “marriage,” even though its recognition is reportedly supported by voters in Iowa (50% to 42%), Alaska (55% to 41%) and Colorado (62% to 32%). Scott Brown, on the other hand, lost in New Hampshire (where voters support recognition of same-sex “marriage” by the largest margin reported, 70% to 28%)—despite being endorsed by the pro-homosexual Log Cabin Republicans.

Although not tested by the exit polls, my theory is that even as polls seem to show significant support for the redefinition of marriage, that support is very thin, whereas the opposition is much more deep-seated. In other words, far more of those who express opposition to the redefinition of marriage do so out of deep conviction, and are likely to oppose a candidate based on this issue alone. Many of the 40% of Americans who (according to the exit polls) attend religious services at least once a week probably fall into this category.

On the other hand, much of the expressed support for changing the definition of marriage is just a matter of going along with the perceived cultural tide, rather than a deep conviction. (Indeed, with the recent spate of court rulings in favor of redefining marriage across the country, answering “yes” to the question, “Should your state legally recognize same-sex marriage?” may amount to little more than a declaration that their state should obey rulings of the courts—not that such a definition is the ideal public policy).

The percentage of voters who will oppose a candidate only because he or she refuses to endorse marriage redefinition is probably relatively small—mostly, just the 1.6% of American adults who (according to a recent federal survey) self-identify as gay or lesbian.

In summary, the historic 2014 elections for the Senate demonstrate that supporting the redefinition of marriage and the rest of the pro-homosexual agenda is a loser, and opposing it is a winner, across the country—especially for Republican candidates.

So much for the “rainbow revolution.”

[Below are the exit poll results on marriage for all 24 states where they were reported by NBC News, in order of the most to least opposition to redefining marriage:]

Question: “Should your state legally recognize same-sex marriage?”

State Yes No

Louisiana 25% 73%

Arkansas 27 69

West Virginia 31 67

Kentucky 31 67

Georgia 34 62

South Carolina 34 62

North Carolina 39 57

Ohio 41 54

Virginia 44 53

Kansas 45 51

Michigan 45 49

Pennsylvania 47 49

Florida 48 48

[Total U.S. 48 48]

Wisconsin 52 45

Iowa 50 42

Alaska 55 41

Minnesota 58 39

Illinois 58 38

New York 59 36

California 61 35

Colorado 62 32

Oregon 64 32

Maine 66 32

New Hampshire 70 28

How Important is Election Day Turnout? Ask Anthony Brown.

by Peter Sprigg

November 11, 2014

On Election Day (or, with early and absentee voting, during election season), not every citizen who is registered to vote will actually vote. There are a variety of reasons. Some have not put in the time and effort to educate themselves about the people and issues on the ballot. Some don’t believe their vote will make a difference. Some may be confident that their favored candidate(s) will win anyway; some may be fatalistic that their favored candidate(s) will lose anyway. Some may have logistical problems getting to the polls; some may simply forget.

Because of all these factors, it is a given for anyone who has ever been involved in a political campaign that “turning out your voters” is a key to victory. Success hinges not just on persuading a majority of your fellow citizens that you are the best candidate; it also hinges on success in motivating those voters to actually vote.

It should be no surprise that the highest voter turnout generally comes in presidential election years. That is when the media coverage of politics is at its most intense. Even people who pay no attention to local or state legislative races, or even races for Congress or Governor, will generally form an opinion on which candidate should be the next President of the United States, and will make an effort to express that view at the ballot box.

That means, however, that in a non-presidential year, like the 2014 mid-term elections, fewer votes will be cast, and therefor “turning out your voters” is even more crucial.

Anthony Brown learned that the hard way.

Brown has served two terms as Lieutenant Governor of Maryland under Gov. Martin O’Malley, the former mayor of Baltimore. O’Malley is leaving office and is considered a dark horse candidate for the 2016 Democratic presidential nomination. Brown was his designated successor for the governor’s mansion, easily winning the Democratic nomination.

The election should have been a shoo-in for Brown. Maryland is one of the bluest of deep blue states. President Obama carried the state in 2012 with 61% of the vote.

In one of the biggest (and most under-reported) upsets on election night, however, Brown lost to his Republican opponent, Larry Hogan, 51%-47%.

I was curious as to how big a role turnout played in this surprising outcome, so I went back to look at some vote totals I compiled after the 2012 election. (I had written a blog post then about how even in the four states which did not vote to defend the definition of marriage as the union of one man and one woman, the pro-marriage vote had well exceeded the vote received by Republican nominee Mitt Romney.)

Comparing those votes with this year’s governor’s race confirmed the importance of turnout. Although Hogan won in 2014 with 51% of the vote, and Romney lost Maryland badly in 2012 with only 36% of the vote, the raw number of votes Hogan received in victory was only 91% of the number of votes Romney received in defeat.

What does that say about Brown? He received less than half as many votes as President Obama did in 2012—only 792,000 compared to Obama’s 1.6 million.

A similar trend probably prevailed across the country. Masses of Obama voters just stayed home on Election Day—leading to the Republican wave we saw on Election Night.

Excerpts - Judge Upholds “Principles of Logic and Law” in Backing Natural Marriage in Puerto Rico

by Peter Sprigg

October 23, 2014

U. S. District Court Judge Juan M. Pérez-Giménez issued a ruling on October 21 upholding Puerto Rico’s law defining marriage:

Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife . . .”

Pérez-Giménez, a Jimmy Carter appointee, was the second District Court judge to stand against the tide of judges who have asserted a constitutional right to “marry” someone of the same sex in the months since the June 2013 ruling of the Supreme Court in United States v. Windsor. (Windsor struck down the portion of the federal Defense of Marriage Act, or “DOMA” which defined marriage for all purposes of federal law as the union of one man and one woman.) Judge Martin L. C. Feldman upheld the Louisiana marriage law on September 3.

The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”

Following are some excerpts from the strong decision (some citations omitted):

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage . . .

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.

The petitioners in Baker v. Nelson [1972] were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim . . .

The petitioners’ appealed … The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

… The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, … (1977) . . .

This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., … (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, … (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent…”). After all, the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires.

… The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, … (1975) … .

The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, … (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.”

. . .

Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” (quoting Sosna v. Iowa, … (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

. . .

Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. See National Foreign Trade Council v. Natsios, … (1st Cir. 1999) (“[D]ebate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion.”); see also, Scheiber v. Dolby Labs., Inc., … (7th Cir. 2002) (“[W]e have no authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.).

. . .

IVCONCLUSION

That this Court reaches its decision by embracing precedent may prove disappointing. But the role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, … (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

Schuette v. Coalition to Defend Affirmative Action, … (2014)(Op. of Kennedy, J.).

For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 21st day of October, 2014.

S/ JUAN M. PÉREZ-GIMÉNEZ

JUAN M. PÉREZ-GIMÉNEZ

UNITED STATES DISTRICT JUDGE

We know from the social science that children do best with a mom and a dad.”-TRUE

by Peter Sprigg

October 17, 2014

On Sunday, October 12, Family Research Council President Tony Perkins appeared on Fox News Sunday to debate the redefinition of marriage with Ted Olson, a prominent Republican attorney and advocate of giving civil marriage licenses to homosexual couples.

At one point in the discussion, Olson began to argue that we should redefine marriage because it would benefit children who are being raised by same-sex couples. Perkins replied, “We know from the social science that children do best with a mom and a dad.”

Within hours, the “fact-checking” website PolitiFact posted an analysis of the statement—and rated it “False.”

Unfortunately, the PolitiFact article itself gets a failing grade.

That is, unless they think the non-partisan, non-profit research group Child Trends was also telling a “falsehood” when they reported, “An extensive body of research tells us that children do best when they grow up with both biological parents in a low-conflict marriage.”

Presumably, they also think it was “false” when the anti-poverty group the Center for Law and Social Policy reported, “Research indicates that, on average, children who grow up in families with both their biological parents in a low-conflict marriage are better off in a number of ways than children who grow up in single-, step- or cohabiting-parent households. Compared to children who are raised by their married parents, children in other family types are more likely to achieve lower levels of education, to become teen parents, and to experience health, behavior, and mental health problems.”

And I guess they would also rate as “false” the statement by the Institute for American Values, which declared (as one of its “fundamental conclusions” about “what current social science evidence reveals about marriage in our social system”), “The intact, biological, married family remains the gold standard for family life in the United States, insofar as children are most likely to thrive—economically, socially, and psychologically—in this family form.”

I suppose PolitiFact would also say it was false when the American College of Pediatricians said that “the family structure which leads to optimal child development is the family headed by two biological parents in a low-conflict marriage.” The ACP added details:

A growing and increasingly sophisticated body of research indicates that children with married parents (both a mother and a father) have more healthful measures of:

  • thriving as infants
  • physical and mental health
  • educational attainment
  • protection from poverty
  • protection from antisocial behavior
  • protection from physical abuse


The PolitiFact article put much emphasis on “peer-reviewed” literature. Are they actually suggesting that the conclusions of every single one of the sources cited in the following passage (adapted from my book Outrage) are “false”?

Children raised by opposite-sex married parents experience lower rates of many social pathologies, including:

  • premarital childbearing (Kristin A. Moore, “Nonmarital School-Age Motherhood: Family, Individual, and School Characteristics,” Journal of Adolescent Research 13, October 1998: 433-457);
  • illicit drug use (John P. Hoffman and Robert A. Johnson, “A National Portrait of Family Structure and Adolescent Drug Use,” Journal of Marriage and the Family 60, August 1998: 633-645);
  • arrest (Chris Coughlin and Samuel Vucinich, “Family Experience in Preadolescence and the Development of Male Delinquency,” Journal of Marriage and the Family 58, May 1996: 491-501);
  • health, emotional, or behavioral problems (Deborah A. Dawson, “Family Structure and Children’s Health and Well-Being: Data from the 1988 National Health Interview Survey on Child Health,” Journal of Marriage and the Family 53, August 1991: 573-584);
  • poverty (Federal Interagency Forum on Child and Family Statistics, America’s Children: Key Indicators of Well-Being 2001, Washington, D.C., p. 14);
  • or school failure or expulsion (Dawson, op.cit.).

PolitiFact must also not trust federal government survey research—such as that published just a few months ago which said, “Children in nonparental care were 2.7 times as likely as children living with two biological parents to have had at least one adverse experience, and more than 2 times as likely as children living with one biological parent and about 30 times as likely as children living with two biological parents to have had four or more adverse experiences.” (Note that if you turn this around, it is saying that “children living with two biological parents” are at least fifteen times less likely “to have had four or more adverse experiences” than children in any other living situation with which they were compared.)

Finally, the Mapping America series produced by FRC’s own Marriage and Religion Research Institute (MARRI) has documented (based primarily on federal government survey data) literally dozens of outcome measures for which, on average, children raised in an intact married family do better than those in other family structures.

There are certainly other things PolitiFact could have said to put Perkins’ comment in perspective. They might legitimately have pointed out, for example, that relatively few studies have been conducted to date which makes direct comparisons between children raised by their married, biological mother and father and children raised by same-sex couples. While it is certainly true, not false, that there is a large and robust body of social science evidence indicating that “children do best with a mom and a dad,” as Perkins indicated, most of the studies involved in that body of research compared children raised by their married, biological mother and father with children raised in alternate family structures such as single-parent, divorced, or step-parent households—but did not include direct comparisons with the (relatively tiny) population of children raised by same-sex couples.

For example, the New Family Structures Study spearheaded by sociologist Mark Regnerus resulted in dramatic (and statistically powerful) results demonstrating the strong advantage held by the “intact biological family” over numerous other family forms. However—as Regnerus made clear from the beginning—even his comparison with “gay fathers” or “lesbian mothers” was only based on the adult respondents having said that at some point between birth and age 18, their father or mother had a same-sex romantic relationship. It was not a comparison with children raised by same-sex couples living and raising the children together (of which very few could be found, even in Regnerus’ large sample).

A key illustration of how the PolitiFact article lacked objectivity is that its description of the Regnerus research sounds as though it were simply cut and pasted from the talking points of “gay” bloggers. It is true that his research was sharply criticized in a variety of quarters—that is to be expected, given that academia is now dominated by liberal elites who are unwilling to tolerate the slightest dissent from the pro-homosexual orthodoxy. It is also true that among his fellow sociologists who distanced themselves from the study were members of the sociology department at his own university, the University of Texas.

However, it is false to say (as PolitiFact did) that the university itself “denounced” Regnerus’ research. On the contrary, the university conducted a full investigation of charges brought by a “gay” blogger who uses the pen name “Scott Rose,” and concluded, “Professor Regnerus did not commit scientific misconduct… . None of the allegations of scientific misconduct put forth by Mr. Rose were substantiated …” The New Family Structures Study continues to be hosted by the Population Research Center within the College of Liberal Arts at the University of Texas at Austin.

The journal which published two Regnerus articles based on the New Family Structures Study, Social Science Research, also published extensive critiques of his work. Its editor designated a sharp critic of Regnerus, Darren Sherkat, to conduct an “audit” of the publication process. Since PolitiFact was dismissive of a book-length scholarly work because it was not subject to “peer review” like academic journal articles, it is worth noting what Sherkat said about peer review of Regnerus’ work: “Five of the reviewers are very regular, reliable SSR reviewers, and all six were notable scholars. Indeed, the three scholars who are not publicly conservative can be accurately described as social science superstars.” Most importantly, as editor James D. Wright points out, “all reviewers of both papers agreed that the papers warranted publication. The unanimity of reviewer opinion is notable in this case and is also fairly unusual.” A more thorough description of the Regnerus study can be found here, and a more detailed analysis of its actual findings can be found here.

One early study which did make a direct, couples-to-couples comparison was a 1996 study by an Australian sociologist who compared children raised by heterosexual married couples, heterosexual cohabiting couples, and homosexual cohabiting couples. It found that the children of heterosexual married couples did the best, and children of homosexual couples the worst, in nine of the thirteen academic and social categories measured.

More recently, studies based on U.S. and Canadian census data have allowed couples-to-couples comparisons using much larger sample sizes, but with respect to only a single outcome measure. Canadian economist Douglas W. Allen and two co-authors analyzed data from the 2000 census in the United States and reported, “Compared with traditional married households, we find that children being raised by same-sex couples are 35% less likely to make normal progress through school.” Another study by Allen using the 2006 Canada census found, “Children living with gay and lesbian families [i.e., a “same-sex married or common law couple”] in 2006 were about 65% as likely to graduate compared to children living in opposite sex marriage families.”

Advocates for homosexual parenting and the redefinition of marriage sometimes argue (as PolitiFact did in a similar article challenging a Ralph Reed comment in April 2014), “What studies really show is that children are better off with two parents. Those studies do not focus on gender.” This statement by PolitiFact is clearly false. Most of the studies cited above focused on the presence of two biological parents—which by definition includes both the mother and the father. At best, same-sex couples resemble a step-parent situation, in which at most one of the caregivers is the biological parent of the child. The Child Trends publication cited above noted:

Children growing up with stepparents also have lower levels of well-being than children growing up with biological parents. Thus, it is not simply the presence of two parents, as some have assumed, but the presence of two biological parents that seems to support children’s development.”

(Note: FRC believes that adopted children also benefit from the gender complementarity in parenting provided by an adoptive mother and father. However, the bulk of the research has focused specifically on households headed by the married, biological mother and father.)

On the other hand, the research that has been done specifically on children raised by same-sex couples has usually compared them only to children of “heterosexual” parents—including single-parent or divorced households—rather than comparing them directly to children raised by their married, biological mother and father (the “intact biological family,” as Regnerus refers to it).

The Center for Law and Social Policy report, cited above, summarized the implications of this succinctly:

Children of gay or lesbian parents do not look different from their counterparts raised in heterosexual divorced families regarding school performance, behavior problems, emotional problems, early pregnancy, or difficulties finding employment. However, … children of divorce are at higher risk for many of these problems than children of married parents [emphasis added].

The PolitiFact article seemed to be devoted to debunking things that Tony Perkins did not say, rather than what he actually did say. If Perkins had said, “We know from the social science that children do better with a mom and a dad than with two moms or two dads,” PolitiFact might legitimately have challenged it—not because it is “false,” but because there is insufficient research on that direct comparison to assert we can “know” it as a social science certainty.

If Perkins had said, “We know from the social science that children do better with heterosexual parents than with homosexual parents,” then PolitiFact might also have challenged that—again, not because it is “false,” but because family dysfunction among heterosexuals (such as out-of-wedlock births, divorce, and cohabiting parents) is clearly harmful to children as well.

However, Perkins was clear, precise—and accurate—in what he did say, that “children do best with a mom and a dad.”

If, though, the social science research has not provided us with true, apples-to-apples comparisons between children raised by same-sex couples and children raised by their mother and father, was it legitimate for Tony Perkins to bring this truth about the general parenting research into a debate specifically about same-sex “marriage?”

I believe it was, because of the significant difference in quality and quantity between the two bodies of research at issue. As indicated by the summary statements quoted above, the research showing that children raised by their married biological mother and father do better than any other family structure with which they have been compared is extensive, methodologically sound, and convincing.

On the other hand, the research focused specifically on children raised by same-sex couples, most of which has been reported as showing that they do just as well or show “no differences” in comparison with children raised by “heterosexual parents,” suffers from serious methodological flaws.

Much of it has relied on small, non-random “convenience samples”—obtained, for example, by advertising in “gay” media. These samples may not be truly representative of the population of same-sex couples raising children. Parents whose children have significant problems may be less likely to volunteer, and parents who do volunteer may have an incentive (including a political one, knowing the significance of the research in public debates) to downplay any problems their children have (many such studies rely on the parent’s own report of child well-being).

In addition, arguments touting the large number of published studies supporting the “no differences” claim are misleading, because many of those studies are based on a single data set, from the National Longitudinal Lesbian Family Study (NLLFS). The NLLFS website lists 21 publications which have been directly based on this study, and five more related to it.

A 149-page book published in 2001 did a detailed analysis of the homosexual parenting research up to that point. The result was:

We conclude that the methods used in these studies are so flawed that these studies prove nothing. Therefore, they should not be used in legal cases to make any argument about ‘homosexual vs. heterosexual’ parenting. Their claims have no basis.”

A similar analysis was conducted by researcher Loren Marks and published in the same 2012 issue of Social Science Research as the first Regnerus article. Marks analyzes the 59 previous studies cited in a 2005 policy brief on homosexual parents by the American Psychological Association (APA). Marks debunks the APA’s claim that “[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents.” Marks also points out that only four of the 59 studies cited by the APA even met the APA’s own standards by “provid[ing] evidence of statistical power.” As Marks so carefully documents, “[N]ot one of the 59 studies referenced in the 2005 APA Brief compares a large, random, representative sample of lesbian or gay parents and their children with a large, random, representative sample of married parents and their children.”

So, the research supposedly showing “no differences” between children raised by same-sex couples and those raised by heterosexuals (remember, they are not usually compared with children raised by their own mother and father) is simply unreliable. The research showing that children do best when raised by their own, married, biological mother and father, when compared with numerous other family structures, is robust and clear-cut.

Essentially, homosexual activists (and PolitiFact) are claiming that children raised by homosexual couples are, remarkably, the lone exception to the overwhelming social science research consensus regarding the optimal family structure for children.

We rate their claim, “Highly Implausible.”

Supremes Dodge Most Important Issue Before Them — Marriage

by Peter Sprigg

October 6, 2014

The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.

There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.

This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.

The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.

Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.

One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.

Judge Posner Ignores the Obvious: Kids Care More about a Mom and Dad than about a Government Certificate

by Peter Sprigg

September 8, 2014

Ed Whelan of the Ethics and Public Policy Center has been doing a great job at National Review Online debunking Judge Richard Posner’s opinion striking down the Indiana and Wisconsin marriage laws for a panel of the U. S. Court of Appeals for the Seventh Circuit on September 4 (see here, here, here, and here).

I will note here just one thing that jumped out at me in both the oral arguments and the opinion. Judge Posner makes the following argument (pp. 22-23 of the opinion):

Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.

Judge Posner’s set-up of this hypothetical situation sounds like a demonstration of how same-sex “marriage” could harm children raised by same-sex couples:

Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.

Perhaps it is a function of his long judicial career, but Judge Posner seems to think that it is entirely the law which will determine whether such a child experiences “comfort” or distress from such a situation. If the law says that the two women or two men raising the child cannot be “married,” the child will experience distress. But if the law says that the two women or two men raising the child are “married,” then they will experience “emotional comfort,” presumably from the knowledge that their family is just like that of their friends.

Except, even in Judge Posner’s own framing of the situation, it is not the absence of a marriage certificate that makes the children feel different from his peers. It is that “all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).” If the child’s “two moms” or “two dads” are permitted to “marry” — well, “all his classmates” will still have “a mom and a dad,” while the child in question will still be “not in step with [his] peers” because he will still not have a mom and a dad!

Judge Posner is naïve in the extreme if he thinks that such a child would care more about whether his caregivers have a certificate from the government than about whether his family includes something as fundamental on a human level as a mother and a father.

Men and women make babies, and same-sex couples do not.”

by Peter Sprigg

September 2, 2014

On August 26, 2014, a three-judge panel of the U. S. Court of Appeals for the Seventh Circuit heard oral arguments in Chicago in cases challenging the marriage laws of two states, Indiana and Wisconsin.

I have already written a detailed blog post outlining highlights of the arguments and my reactions to them. However, I thought it would be worth sharing some more extended excerpts of the argument in defense of a one-man-one-woman definition of marriage. Indiana Solicitor General Thomas Fisher outlined (and Wisconsin Assistant Attorney General Timothy Samuelson endorsed) the core constitutional argument — that marriage exists as a public institution primarily to promote responsible procreation.

At oral arguments, the attorneys are frequently interrupted by the judges, so the following quotes are taken from a variety of points during the argument. The quotes are my own transcription from the audio which the court posted here.

Thomas Fisher:                                                     

If we don’t have marriage, what is the issue we’re dealing with? We’re dealing with widespread heterosexual activity that creates babies. There has to be a mechanism to deal with that. The mechanism is, let’s channel potentially procreative couples into relationships that are durable and longstanding and will remain together for the sake of the child… .

The question is, “What can we do to nudge heterosexual couples, who may produce children, to plan for this — to plan for the consequences and appreciate the consequences of sexual behavior?” Those consequences don’t arise with same-sex couples… . .

 … [A]ll this is a reflection of biology. It’s simply that men and women make babies, and same-sex couples do not… .

We have to have a mechanism for dealing with those babies, and marriage is that mechanism.

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