Pedantic Political Ponderings: Loving v Virginia

Showing posts with label Loving v Virginia. Show all posts

18 June 2012

18 June 2012: Marriage News Watch

15 May 2012

Praise: James Clyburn on Marriage Equality

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Representative Clyburn of South Carolina, number three in the minority leadership, is spot on regarding marriage equality. On the other hand, I suspect that national equality will only be possible through the courts, similar to what happened with interracial marriage as resolved by the Supreme Court in Loving v Virginia.

The legislative route is easier if there is a Democratic Congress. If we can simply see the overturning of DOMA, then marriages between people of the same gender may still not be possible in forty-four states, but those states would have to recognize marriages performed in the six states where marriage equality is the law (Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont) as well as the District of Columbia. Without DOMA, that recognition of marriages would be required by Article IV, Section One of the United States Constitution.

Either way, thank you to Leader Clyburn. Well said.

31 January 2012

Repudiation: Patrick Lee on Discrimination

Patrick Lee is a Professor of Philosophy and the Director of Bioethics at Franciscan University of Steubenville. From his university biography:

In this capacity he defends and articulates the Church’s position on a wide range of human life issues through his writings, debates, and public speaking engagements.

On Monday 30 January the Witherspoon Institute published an article by Dr. Lee in which he articulates the Church's position on marriage equality, The Same-Sex “Marriage” Proposal is Unjust Discrimination.

The conjugal conception of marriage is just and coherent; the same-sex marriage proponents’ conception of marriage is unjust and incoherent.

This opening line (all italic in the original) is the heart of Dr. Lee's argument. Although no reason is offered, marriage is only real if it is sexual and specifically heterosexual with the possibility of procreation.

The “marriage equality movement”: that’s the name chosen for themselves by same-sex “marriage” supporters. The implicit argument is that the state’s granting marriage licenses only to opposite-sex couples is undue discrimination. The claim has an initial plausibility: the state grants a marriage license to John and Mary but not to Jim and Steve. Isn’t that unequal treatment? But this charge, I will show, rests on a profound confusion about both marriage and equality. A state’s recognition that marriage is only between a man and a woman is not unjust. What’s more, a state’s endorsement of same-sex “marriage” does create an arbitrary and invidious discrimination.

Of course, claiming that equality is "arbitrary and invidious discrimination" is silly. But, let's not rely on my summation.

A law is unjust only if the distinction it creates is not essentially related to a legitimate purpose of law. But whatever one holds about the morality of homosexual acts, it is clear that the state does have an interest in promoting and regulating marriage as traditionally defined, and that the sexual relationships of same-sex couples are distinct in kind from that. So, even if—contrary to fact—the state did have an interest in promoting same-sex sexual relationships, that interest would be different from the one served by promoting marriage. And so the two types of relationships or arrangements should not be lumped together. Moreover, falsely to equate the two is to obscure the nature of marriage.

Obviously, Dr. Lee finds "homosexual acts" to be immoral. That is his right. He and his church can and do set their own morality. Religious morality is not bad unless it is imposed on the rest of society, including those of other religions that hold to a different morality.

I do not believe that government or society should "promote" any particular relationships. That is not the purpose of government's interest in marriage, but Dr. Lee has a rather different definition of "the nature of marriage".

What is marriage? The traditional view of marriage is: the union of a man and a woman, who have consented to share their lives, on the bodily (sexual), emotional, and spiritual levels, in the kind of community that would be fulfilled by having and raising children together.

Unlike many who oppose equality, Dr. Lee does not make the mistake of declaring this as the biblical view of marriage. This recent (a little over a century in the United States) traditional view of marriage is still not quite correct. The last phrase has long been optional. Children are not a necessary part of marriage, even "traditional marriage".

Two points need emphasis here. First, marriage is a bodily union, as well as emotional and spiritual. For in sexual intercourse—which consummates the marital union—the spouses become biologically one: they complete each other to form a single subject of a single biological action, the kind of action that could procreate, provided conditions outside their conduct are present. This biological union (a procreative-type act) embodies their procreative-type union (provided they have consented to share their lives in that kind of union).

This point is the heart of Dr. Lee's argument. No other form of sex, just the insertion of the penis of a man into the vagina of a woman, fulfills the bodily union aspect of marriage for Dr. Lee.

Second, marriage is the kind of union whose fruition is procreation. It is the kind of union that would be fulfilled by having and raising children together; the union of the spouses is embodied, prolonged, and enriched by enlarging into family. Still, marriage is not a mere means in relation to procreation, but a sharing of lives (bodily, emotionally, and spiritually) that is good in itself—and so a man and a woman who have consented to such a multi-leveled union are genuinely married, and have an intrinsically fulfilling marital union, even if it turns out they cannot procreate together.

No. This may be the Roman Catholic view of marriage, but it is not the government's view of marriage. The Supreme Court of the United States found in Griswold v. Connecticut in 1965 that married couples have a right to privacy regarding contraception. While this case is often thought of in terms of unreasonable search and seizure, it was the basis for Lawrence v. Texas which overturned most laws prohibiting same gender sexual activity. Elderly persons, beyond child-bearing years, and those who are known to be infertile are welcome to wed in the United States.

Now of course not all agree with the traditional definition of marriage. But the point I want to make is simply this: marriage, as traditionally defined, is a distinct type of community and not an arbitrary set. Unmarried cohabitators have a different type of relationship. Alliances to raise children also are not necessarily marriages: a group of celibate religious women running an orphanage, for example, are not married. And, plainly, same-sex sexual relationships are a different kind of relationship: they cannot become biologically one, nor is their relationship of the kind that would find its fruition in conceiving, bearing, and raising children together. (True, same-sex partners can form an alliance to raise children—for example, those from a previous marriage or produced by artificial reproduction; but that alliance is not an extension or prolongation of a bodily-emotional-spiritual union already begun, as is the case in marriage.)

No one outside of Catholicism objects to the Roman Catholic Church restricting marriage to opposite gender couples, those who might procreate. But we do object to extending that restriction to the rest of society. He goes on to address how this applies to government.

Now it is precisely the distinctive features of marriage that ground the state’s interest in promoting and regulating it, and that make the general strength or health of marriage a public good. First, marriage is a distinctive way in which men and women are fulfilled, an irreducible aspect of their flourishing, and one that can be easily misunderstood. And so marriage needs cultural support—and can be harmed by cultural confusion about it. Clarity within the general culture about the value and nature of marriage enables young men and women, as well as those already married, to participate more fully than they otherwise would in this distinctive good—just as a clear public understanding of health or learning assists individuals and families to participate more fully in those goods.

While Dr. Lee is correct in each of these points, it is also correct to extend each point beyond the limitation of opposite gender couples. Same gender couples may find marriage fulfilling, which is why many wed when it is legal to do so. Cultural support enhances the stability of any relationship.

Let's not forget that sexual activity is healthy. This is not limited to the nature of one's sexual partner. In the 1990s, the British Medical Journal found that men who have more orgasms live longer. Sexual activity is good for women as well. A study out of South Korea indicates that well being is enhanced among the elderly when they are sexually active.

Second, while good in itself, and not a mere means to an extrinsic end, marriage also provides the crucial social function of encouraging parents (and potential parents) to commit to each other and to whatever children they may have. A healthy and strong marriage culture will provide the safest and healthiest environment for children. For these reasons it is in everyone’s interest for the state to promote a sound understanding of marriage, and certainly to avoid obscuring its nature.

Indeed, this is true, but not just for opposite gender couples. See my post on All Children Matter. It is in the interest of the state to promote healthy marriages, where there is love and commitment for the sake of the couple and for the sake of children if there are any. So far, Dr. Lee has argued that heterosexual sex is the only bodily union appropriate for marriage which is based on procreation. The rest of the article compares homosexual couples to polygamous groups and to adult-child relationships, all while claiming that he is not arguing about a slippery slope.

Since a same-sex couple is unable to form the kind of union marriage is, not granting same-sex couples marriage licenses is simply a decision by the state not to engage in a confusing and harmful fiction. Marriage is a certain kind of union. Denying a marriage license—or the privileges, protections, and obligations of marriage—to those who are unable to marry is not unjust discrimination. The state denies marriage licenses to threesomes or foursomes (refraining from declaring polyamorous groups marriages) and denies marriage licenses to twelve-year-olds (requiring valid consent for a marriage). These denials are not unjust because threesomes, foursomes, and twelve-year-olds are unable to form the kind of union that marriage is. But the same is true of same-sex couples. So, just as the distinction between eighteen-year-olds and twelve-year-olds is relevant to the purpose of marriage—because the former but not the latter are actually able to form the union that is marriage—in the same way, the distinction between opposite-sex couples and same-sex couples is relevant to the purpose of the marriage laws, because the former but not the latter can actually form the kind of union that marriage is.

Marriage for a couple, whether of the same gender or opposite gender, is not a fiction. This is obviously part of where it is Dr. Lee who is confused. Saying that same gender couples are "unable to marry" does not make it so.

Comparing homosexual couples with polygamists (who traditionally have usually been heterosexual in their polyamory) and pedophiles (who are usually seeking those of the opposite gender) is ugly and inaccurate. The insinuation is, of course, endeavoring to set up a slippery slope argument that if we allow marriage equality for homosexuals then see what they will ask for next.

The biggest problem with pedophilia is that it is inherently coercive, involving children in sexual activity for which their are neither mentally nor physically prepared. Same gender couples seeking to wed are adults who are able to reasonably give their consent, both mentally and physically on the same level as opposite gender couples who seek to wed.

The two biggest problems with polygamy are coercion of children not ready for marriage (sounds like pedophilia again) and legal complexities. Same gender couples are not pedophiles (see my last paragraph) and have none of the legal complexities of polygamy. In fact, the only change from opposite gender marriage is that both individuals are the same gender. Nothing else changes from a legal perspective.

According to same-sex “marriage” proponents, the public interest served by marriage laws is the stability of households. For example, in striking down California’s pro-marriage constitutional amendment called Proposition 8, Judge Vaughn Walker claimed: “The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.” Stability of households might of course be a legitimate public aim, but laws to promote that (and to provide benefits and privileges for stable households as such) are not marriage laws. Such laws, benefits, and so on, would—if applied justly—have to be given also to groups who do not have sexual relationships and groups not pledging permanence and exclusivity.

No. Laws that promote stability of households are not religious marriage laws. Dr. Lee is confusing the concept of holy matrimony within a religion and civil marriage.

The reasons for the state to encourage stability of same gender households do relate to permanence and exclusivity. Monogamous couples results in a more stable tax structure with greater home ownership, reduction in the spread of sexually transmitted diseases, and greater societal cohesion resulting from that stability.

Clearly, though, same-sex “marriage” supporters want much more than certain benefits and privileges. Discussion of concrete benefits such as hospital visitation, inheritance rights, and so on, is really a side issue—such benefits could be secured by other means for individuals who need them (for example, a durable power of attorney for health care, a will, etc.). Nor—contrary to how it is usually portrayed—is the same-sex marriage proposal aimed at tolerance, since persons with same-sex attractions are already free to engage in private sexual behavior and to establish for themselves long-term romantic and sexual relationships. Rather, what proponents of same-sex “marriage” principally desire is the social affirmation and endorsement of homosexual relationships as such. Judge Walker indicated this point clearly in his Proposition 8 decision: “Plaintiffs [some same-sex couples] seek to have the state recognize their committed relationships . . . . Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage.”

There is a law suit under way right now in New Jersey because endeavoring to enact concrete benefits such as hospital visitation and such failed under a non-marriage approach called civil unions. Inheritance rights are blocks on the national level by the so-called Defense of Marriage Act (DOMA) that legislates discrimination and prevents the IRS from granting equal tax consequences to same gender couples.

So, the proposal is for the state to promote something called marriage, and that marriage is to be understood in a way that will include same-sex partners. This sounds like old news. But what, on their view, is the thing called “marriage,” and why should the state promote it? What distinguishes marital unions from others, such that the state should promote them? One cannot just pronounce that these couples will now count as married; there must be something one means by “being married,” something held in common by all married couples. But the same-sex “marriage” position cannot provide a coherent account of what that something is.

Love and commitment are a coherent and common bedrock to all real marriage. That Dr. Lee cannot imagine that my partner and I have a bond of love and commitment is Dr. Lee's failing, not ours.

If marriage is not a bodily, emotional, and spiritual union of a man and a woman, of the kind that would be fulfilled by procreation, then what makes a union marriage and why should the state support it? It is not simply a union that is formed by a wedding ceremony: that would be a circular definition. Nor is every romantic and sexual relationship a marriage, and certainly there is no point in the state promoting all such relationships. Perhaps one will say that it is a stable, committed, and exclusive romantic-sexual relationship. But how stable would a romantic-sexual relationship need to be in order to be a marriage? Suppose John and Mary have a romantic-sexual relationship while college students but plan to go their separate ways after graduation: is that stable enough to be a marriage? If not, why not?

Marriage is a bodily, emotional, spiritual, and legal union of two persons. Gender designation is not required. Procreation is not required. A ceremony is not required. Marriage does imply stability, unlike Dr. Lee's college student example.

Or suppose Joe, Jim, and Steve have a committed, stable, romantic-sexual relationship among themselves—a polyamorous relationship. On what ground can the state promote the relationship between couples, but not the relationship among Joe, Jim, and Steve? The argument here is not a slippery slope one. Rather, the point is: There must be some non-arbitrary features shared by relationships that the state promotes which make them apt for public promotion, and make it fair for the state not to promote in the same way other relationships lacking those features. Without this the distinction is invidious discrimination. The conjugal understanding of marriage has a clear answer: (a) marriage is a distinct basic human good, that needs social support and that uniquely provides important social functions; (b) marriage’s organic bodily union and inherent orientation to procreation distinguish it from other relationships similar in superficial respects to it. But the same-sex marriage proposal’s conception of marriage has no answer. In fact, its conception of marriage is actually an arbitrarily selected class, and so the enactment of this proposal would be unjust.

Polygamy, whether heterosexual or homosexual or some combination thereof, is not my issue. It is a complex legal consideration, particularly when it comes to issues of divorce and inheritance. And Dr. Lee is wrong; he is using this as a slippery slope argument. I, above, and many others have given a clear concept of marriage that Dr. Lee does not accept because as soon as heterosexual procreation is removed he does not acknowledge that there is a valid relationship, particularly not a marriage. That is fine for Dr. Lee and for his church, but not acceptable for the whole of society.

The problem is not solved if one adds to one’s description or definition of marriage, that it must be a permanent commitment (as Judge Margaret Marshall did in her decision striking down Massachusetts’ marriage law: “It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage”). For it is fair to ask: why should the commitment be exclusive and permanent? The college students’ relationship (lacking permanence) and the celibate monks’ relationship (lacking exclusivity—others can join the religious order), both form households and contribute to social stability. In contrast, the conjugal understanding of marriage allows a clear answer to these questions: since marriage is a bodily and procreative-type union, and an irreducible basic good, it is non-arbitrarily distinct from other types of relationships. The promotion of this kind of relationship, for its own sake (because it is a basic good), and for the sake of children generally (since a strong marriage culture provides a safe haven for children), makes it in accord with justice to recognize, as marriage, only a relationship between a man and a woman, pledged to be permanent and exclusive. The conjugal conception of marriage is just and coherent; the same-sex marriage proponents’ conception of marriage is unjust and incoherent.

Commitment and love are at the heart of marriage. Judge Marshall was correct. Dr. Lee is welcome to a heterosexual and procreative marriage. No one is trying to deny him that. If my partner and I wed, marriage is enhanced without harm to Dr. Lee or any heterosexual couple. That his narrow definition of marriage cannot encompass loving couples who are of the same gender is Dr. Lee's flaw. Love is not a zero sum game, we all benefit when there is more.

28 January 2012

FollowUp 3: NJ Democrats Call for Marriage Equality

The New Jersey Star Ledger's editorial board wrote about Governor Christie's call for a state referendum on marriage equality.

The governor’s plan is not serious. It is a political dodge. He is trying to provide a safe haven to shelter his obedient Republican legislators. The idea is they could safely vote against gay marriage, saying they only want the people to decide.

They go on to make the obvious correlation that if marriage equality for "inter-racial" marriage had to wait to pass a referendum, the 1967 Loving v Virginia decision of the Supreme Court would have had to wait at least three more decades to become law. I would argue that it would have taken even longer because changing the law to allow Blacks and Whites to wed sped the change in societal attitude.

The point is that minority rights should not be subjected to majority vote. That misses the gist of constitutional rights.

As James Madison put it in Federalist Paper 51: “It is of great importance in a republic not only to guard society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority can be united by a common interest, the rights of the minority will be insecure.”

Exactly why many of us are saying that human rights and civil rights should not be dependent upon a vote of the people. Rights should be guaranteed and protected by the Constitution.

It’s nothing but sad that the governor is playing this political game. He is ambitious for national office and knows that Republicans won’t abide a candidate on the ticket who supports gay marriage. On the other hand, he wants to contain the damage in New Jersey, where polls show most voters support marriage equality.

Our sense is that New Jersey is ready to vote for gay marriage — 52 percent favored it in a recent Quinnipiac poll. But one never knows. A low turnout and a big infusion of right-wing money could change that in a flash.

It is good that the Star Ledger's editorial board understands what is happening. I suspect that Governor Christie understands very well what his referendum proposal means, both for the state of New Jersey and for his own aspirations for national office.

9 January 2012, Original Pedantic Political Ponderings post.

25 January 2012, FollowUp 1.

26 January 2012, FollowUp 2.

30 January 2012, FollowUp 4.

31 January 2012, FollowUp 5.

3 February 2012, FollowUp 6.

10 February 2012, FollowUp 7.

13 February 2012, FollowUp 8.

18 February 2012, FollowUp 9.

21 February 2012, FollowUp 10.

06 January 2012

Repudiation: Rick Santorum on Basic Civil Rights

Mr. Santorum continues to think that a lack of equality is appropriate for the United States. In the above clip, he makes a very simple mistake. He calls marriage a privilege. The Supreme Court of the United States has a different definition. The following from the decision in Loving v. Virginia that struck down state laws preventing persons of different races from marrying.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (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.

Pardon me for quoting the first line of that paragraph written by then Chief Justice Warren again.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Mr. Santorum is correct that marriage is an essential good. Denying marriage equality is discrimination. It is denial of a basic civil right.

Thanks to Joe My God for the heads up.

17 December 2011

Repudiation: Matthew Franck "Advocating Same-Sex Marriage: Consistency Is Another Victim"

In a column at Public Discourse, a religious-conservative online magazine, Mr. Franck makes eight points to conclude that marriage equality will bring about the downfall of religious freedom. Absurd.

1. The ultimate question about the recognition of same-sex marriage is for the whole society to decide, not for judges on putatively “constitutional” grounds. It is a “constitutional” question in quite another sense—that is, it is a constitutive question, about an institution and a relationship that is pre-political, foundational of society itself, and even more basic than our constitutions or political institutions. Therefore the question should always be referred to the people themselves at the polls—and not decided by their legislators, let alone by judges.

No. Rights should never be subject to the temperament of a majority at the polls. This is not just my opinion. Arguing against the constitutive approach is Wisconsin Family Voice, who oppose marriage equality: Let’s make this very clear: Truth is not subject to nor is Truth swayed by public opinion polls.

Opponents of equality appear to be far more interested in maintaining inequality than the means by which that is done. The argue for the ballot, as Mr. Franck does, unless it looks like they might lose at the ballot. As it happens I agree with Wisconsin Family Voice on this narrow issue, rights should not be subject to public opinion polls or referenda.

2. In deciding the basic question, people should ask themselves, what is marriage? For it is a thing with a nature, and a purpose. Marriage has always been understood, throughout human history, as a comprehensive union of a man and a woman, grounded in their complementary natures—a couple of the kind that is capable of generating offspring, and being father and mother to them. The law of marriage has always fostered and protected this singular kind of relationship that is capable of natural parentage, and the only relationship fully capable of parentage of any kind, if “fathering” and “mothering” are understood as distinctive contributions. Were it not for the fact that the sexual union of men and women regularly produces children, marriage would not exist at all. Its existence and its character are in accord with the nature of that union.

No and no. Marriage has not always been understood as the union of a man and a woman. The Bible is filled with polygamists. It is simply amazing how many opponents of marriage equality have forgotten about marriage in the Bible. The most extreme case would be King Solomon, see 1 Kings 11:3.

While the purpose of marriage in the Bible was procreation, that has not been the modern understanding for a long time. No state in the United States requires that a couple entering marriage be able or wanting to procreate. That is one part of marriage and it is optional. We have always allowed elderly couples to wed. We allow infertile couples to wed. There is much more to marriage than procreation.

Marriage without children is still a legal contract of the commitment of two people for each other. It implies love and caring (although there are many historic examples of marriage to achieve peace between countries and alliances of businesses which may not have involved love at all). Marriage is, in the words of the Supreme Court, one of the "basic civil rights of man," fundamental to our very existence and survival.

3. Same-sex marriage advocates have so far been unable to give an answer to the question “What is marriage?” that does not result in the complete collapse of all shape and form to the institution. That is to say, if men can marry men, and women marry women, we no longer know what the institution is, or what it is for, or what its boundaries are, or who is to be ruled in and who is to be ruled out as eligible to participate in it. Polygamy is back; polyamory is in; even incestuous relations are impossible to condemn. This is not a slippery-slope argument. It is the observation of an explosion bursting a levee with a wall of water behind it.

Marriage equality does not diminish marriage, it expands and strengthens marriage. Mr. Franck is under the false assumption that marriage is a zero-sum game, that for one to gain another must lose. No one loses when more people are legally enabled to wed.

Marriage equality is about two people, not an arbitrary number of people. Slippery slope arguments (that is what Mr. Franck is arguing despite his denial) were disproved in a court case in British Columbia just last month. Same sex marriage does not open the door for polygamy, no matter how often it happened in the Bible.

Mr. Franck wants a definition of marriage. Almost what I wrote above. Marriage is a legal contract of the commitment of two people for each other. A religion may, but does not need to, bless the marriage which then is also called holy matrimony. Marriage implies love and caring (although there are many historic examples of marriage to achieve peace between countries and alliances of businesses which may not have involved love at all). Marriage is, in the words of the Supreme Court, one of the "basic civil rights of man," fundamental to our very existence and survival.

4. Such a change to the institution of marriage does indeed affect everyone. Our society has already done great damage to the institution of marriage thanks to easy divorce; thanks to abortion, contraception, and a widespread moral relativism about relations between the sexes; and thanks to social policies that make fatherhood optional when children come along. Marriage needs shoring up, not a “redefinition” that is actually a destruction.

Marriage equality affects those who are not in same sex marriages only in the requirement that they acknowledge the legality of marriages unlike their own. This is separate from the problems in marriages that lead to divorce. No opposite sex marriage would end in divorce if my partner and I wed. That is just silly.

The other arguments here are irrelevant to the discussion of marriage equality. If my partner and I wed there would be no abortion possible (as we are both male). Contraception is also not an issue. Moral relativism are Mr. Franck's code words, he does not like that society is moving beyond his bigotry.

Regarding the "make fatherhood optional" argument, Mr. Franck is, again, wrong. Children raised by same sex parents tend to do just as well as those who are raised by opposite sex parents.

5. Some advocates of same-sex marriage are “marriage abolitionists,” who see the ultimate goal as a legal order that has no category called “marriage,” and same-sex marriage as a way station on that road. They at least know where they are going. But it is not a destination we should seek. Marriage between men and women makes families, and it is right and proper for the law to foster and protect it.

That is not what I want. That is not what the plaintiffs in Perry v. Schwarzenegger want. This is a red herring. Those who desire marriage equality want marriage, not the destruction of marriage.

6. A common argument in favor of same-sex marriage is that laws against it are just like the old Jim Crow laws against interracial marriage. In 1967, the Supreme Court struck down such laws, calling the right to marry a “fundamental freedom.” But those laws interfered with marriage by introducing an irrelevant ingredient—race—as though it were a necessary one. That is, those laws used state power to redefine marriage, a natural institution, for artificial purposes. Now, it is the advocates of same-sex marriage who wish to use state power to redefine marriage, to make the word mean something new and thus change its nature, by removing its central ingredient, the coming together of a man and a woman to make a family.

The arguments against marriage equality based on sexual orientation are quite similar to the arguments against marriage equality based on race. Mildred Loving did not make many public statements. She, at the heart of the right to wed across racial lines, had this to say in 2007:

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

Race should be considered an irrelevant ingredient when considering marriage. So should gender.

7. That 1967 decision of the Supreme Court was universally accepted, practically without a peep of protest, because every decent person would have been ashamed to argue that blacks and whites cannot marry. No denunciations of the decision came from any pulpits. It will not be so if same-sex marriage is nationalized by the Supreme Court. It will be Roe v. Wade all over again. Every growing, thriving, and theologically flourishing religious community in America today is part of the movement to defend the historic understanding of marriage, and they won’t be surrendering their principles. Their theologies may differ, but they share a common moral reasoning about the nature of marriage. And the defense of marriage can hardly be called an “establishment of religion” when it is agreed to by evangelical Protestants, Catholics and Orthodox Christians, and Mormons, Muslims, and Orthodox Jews alike.

No. Just this month a Kentucky church voted to ban mixed race couples. They have since rescinded the ban, but to say that there was no protest is denial of reality. Many religions chose to reinterpret the passages of the Bible, such as Exodus 34:14-16, to no longer ban marriage between a black person and a white person.

Already there are many religious groups that welcome same sex couples. Religions do not tend to be in complete agreement with each other or internally. Mr. Franck is not welcome to speak for my religion.

8. These diverse believers also share a quite reasonable fear that in a country that has adopted same-sex marriage, their religious liberty is threatened. For believing what their traditions have always believed, they will be condemned as bigots, and subject to discriminations and pressures. Religious dissenters from the new dispensation, in many tens of millions, will be second-class citizens, and will be chased out of many professions and avenues of business if they will not abandon what their faiths teach them about marriage. Their hospitals, schools, and charitable organizations will be pressured to drop their religious scruples, and to silence their moral witness.

No. Religious liberty is not threatened. Today a member of the clergy is welcome to deny the rites of marriage to any couple for any reason. The government is required to acknowledge marriages that religious institutions can deny. If Mr. Franck continues to denigrate same sex couples when there is legal equality, he is likely to be shunned, but not demoted to second class status. If one doesn't like the idea of same sex marriage, then one should not wed another of the same sex. This isn't about what you believe but about what rights are granted as promised in the opening lines of the Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Mr. Franck's conclusion is a repeat of the above and then there is additional dialogue from the conference where he presented these eight points and two more that were not included in his column.

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