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For Part I, Click Here.

For Part II, Click Here.

In the last segment, Part II, I explained the legal justification on why Prop 8 is fine. As I ended the article, I wrote about freedom. By way of a good transition into this topic, here is a small recap.

A well-intentioned by sadly misled commenter on the Part I column suggested that freedom’s “blessings,” as referenced in the California Constitution, was open for defining, and surely opposed to Prop 8, which tells folks who engage in homosexual behavior that they can’t “marry” a person of the same sex. It goes against this freedom, the commenter argues.

What is freedom? If I’m from Alice’s world, the “Wonderland,” that she found through the mirror, then “freedom’s” up for grabs. Like Humpty Dumpty said to her, freedom can mean “just what I choose it to mean—neither more nor less.” What if it’s “freedom to the contrary?” That would be like me suddenly wanting to change into a turnip. Surely no, we don’t have that. Or me suddenly wanting the ability to fly like a bird. No, again. So freedom is limited to smaller choices, those within as set of boundaries.

Can I decide that when I want to walk off a high cliff, I can choose not to follow gravity? No, again. The Law of Gravity [and the absence of an airplane or wings] determines the consequences of my choices. So freedom is basically a description of choices, but yet these choices are inherently bound by rules to a certain set of consequences. So let’s say that my benevolent benefactor gives me a car. I’m free to put anything in the gas tank to make it go. Water, Sugar, Flour—those are all good ingredients in cake that make me go, so why not try it? Because, again, choices are bound by rules to a certain set of consequences. Gasoline is the appropriate fuel. And it would break the gift given to my by my benevolent benefactor, the gift-giver, to attempt otherwise.

So, even if one takes “freedom” to be an all-out, anything-goes, willy-nilly, rebellion against what another calls “norms,” the choices you make will be bound by rules to a certain set of consequences, no matter what you want inside. It is those negative consequences, like putting sugar in the gas tank, which the people of California wish to avoid by having Prop 8, to perpetuate the blessings of freedom and not stop the “car” of marriage, given by the more than benevolent benefactor, God.

But the question then follows, “What are the rules” relating to marriage which justify traditional marriage? Well, for Prop 8, it’s pretty clear: Marriages are only between people of the opposite sex. Why? For good public consequences. No doubt there are same-sex friends, even homosexual couples, who have great private interests in staying together, for reasons platonic or intimate. But those reasons are not sufficient as a basis for public law. The important distinction is that we find out how traditional marriage works publicly—its public consequences, to defend Prop 8. And the opponents need to show how their unions are equal to or better in order to justify public inclusion of same-sex marriage.

In the context of freedom, granting the relativists all their self-doubt, we’ll proceed to see what justifications exist for traditional marriage, hoping to see that there are proven reasons. Here are some basic justifications for Prop 8, ones that show its public consequences superior to that of redefining marriage to include same-sex couples, and ones that produce a certain set of good consequences: (These are from an article by Lynn Wardle in 24 Harvard Journal of Law and Public Policy 177 (2001) so doubters can look up the stats and references there before challenging these.)

  • safe sexual relations, responsible procreation, and optimal child rearing: These three function best within a heterosexual union. The state has a definite interest to ensure that people who can procreate are committed to each other and stand on that commitment; the nearly two decade dependency of children (until age 18) requires that the state help guide procreative activity into something with legal consequence. Traditional marriage, by encouraging monogamy, also discourages rampant sexual activity and thus transmission of STD’s via the procreative acts necessary to physically perpetuate society. Also, traditional marriage tends to encourages men to be responsible fathers, tying them to their children rather than fostering irresponsible procreation from men not intending to become fathers. Over 30% of all children were born out of marriage in 1996 according to the US Census Bureau, and had increased risks in juvenile delinquency, crime, educational failures, poverty, and welfare distress. These are huge public reasons for promoting traditional marriage. Homosexual acts can’t touch on the procreative aspects and thus can’t justify being included as public good.
  • healthy human development: children raised outside of traditional marriage have a higher risk for child abuse, sexual abuse, and life-threatening violence. Mother’s boyfriends perform about 2% of child care, but are nationally responsible for over 50% of child abuse. This statistic would only increase, as natural parents, while not immune to committing child abuse, have been found far less likely to commit child abuse than their non-biological counterparts. In homosexual marriage, a child is, from the get-go, determined to be absent a parent of one sex and necessarily forced to live with a non-biological adult who is far more likely, based on research, to abuse or neglect that child.  And the fact that abuse does occur in mixed gender parenting relationships doesn’t argue for the opposite.  You can’t take the worst example in one case and pit it against the best of another case.  So the argument for same-sex marriage from a human development standpoint can’t rise to the level of a public good, whereas traditional marriage can.

And so, which consequences do we want, publicly? Like our current economy, in which printing gobs of money sounds good but has bad consequences like guaranteed inflation, we will be bound to the consequences of the decision. Same-sex supports sound good, but, like Wardle writes, the “bill for the exciting adult adventure of opening new frontiers of sexual liberation and experiencing, [through a reversal of Prop 8], the thrill of social endorsement of new relations would be paid by the next generation. Advocates of same-sex marriage would balance the accounts on the backs of children—not just those who would grow up in same-sex homes, but all children who would grow up in a society in which social support for responsible procreation, dual gender parenting, and the linkage between procreation and child rearing had diminished.”

Surely the above reasons are not so wholly unreasonable—concerning only the public concerns of marriage, not the emotional, self-esteem driven private concerns—that Prop 8 supporters are unjustified in their opinions. They simply want to operate within the rules that govern the “freedom” of relationships and find the good consequences, consequences put in place by the author of marriage, God, and rules that, if broken, will break society, preventing Californians as well as others from perpetuating the blessings of freedom as claimed by the preamble of their Constitution.

In the last article, I touched briefly on the natural law/perpetuation argument of why Proposition 8 is logical. A well-meaning comment shifted my plan for Part II, redirecting me to elaborate here on the “due process” argument. The Prop 8 opponents here suffer from another logical fallacy, that of over-generalization. I’ll boil it down.

Here’s the background to understand the marriage argument. Back several years ago, a group of physicians and terminally ill patients in Washington sought for the Supreme Court of the United States to declare that the patients had a constitutional right for the physician to intentionally prescribe them an overdose of drugs to facilitate ending their lives. The question they offered to the court was whether they had a constitutional right to determine how to end their life.  The case was Washington v. Glucksberg.

The court already had process for dealing with those claims to “rights.” They ask two questions: first, is the alleged “right” properly defined; second, is the alleged “right” deeply rooted in the history and tradition of our nation. As for the patients, the court concluded that the “right” was properly defined as the “right to physician-assisted suicide.” The court remarked that yes, defining it properly has a lot to do with the outcome. It referenced the Dred Scott decision, remarking that in order to avoid the narrow preliminary question of “can one person ‘own’ another,” the pro-slavery folks asked the court “Can the court interfere with someone’s property rights.” When viewed this broad, surely the chance for a successful attack was minimized.

Prop 8’s opponents presented a similar strategy. Instead of “can a person marry another person of the same sex,” the appropriately narrow question, they have expanded it against any attack by describing it as “the right to marry a person of one’s choosing.”  More on this later.

This segues into the second question: is the alleged “right” is deeply rooted in the history and tradition of our nation? The answer here is categorically no. Gay marriage is a recent fad. The historical record is absent of the right to marry a person of the same sex.
And the state has made exceptions since the beginning of our nation’s history, as noted in Part I: blood relationship (commonly referred to as “consanguinity” in legal jargon); consent; and age (children or folks generally under 18, or 16 with parental consent—referred to as “infancy” in legal jargon). Why can’t sex be a defining characteristic?  (To be addressed in Part III).

But back to the alleged “right” again as defined by Prop 8 opponents, the “right to marry a person of one’s choosing.” If this really was the question, and no further analysis was required, what could possibly not be encompassed within that definition? Nothing, really.

“[You should] fight for same-sex marriage and its benefits, and then, once granted, redefine the institution of marriage entirely. The most subversive action lesbians and gay men can undertake is to transform the notion of ‘family’ entirely.”
— Homosexual Activist Michelangelo Signorile, “Bridal Wave,” OUT, December 1993 – January 1994.


“[We] will dethrone the traditional family based on blood relationships in favor of the families we choose.”
— Homosexual Activist William Eskridge, “The Case for Same-Sex Marriage,” 1996.

And that’s the unstated goal—the right to make a family of whatever composition desired.  This notion sounds like true “freedom.”  But what is freedom?  Does freedom involve knowledge?  For example, I can opine all day long about the politics of, say, Nicaragua, but the more I actually know about Central American politics, factually, the “less” free I am to say whatever willy-nilly thought comes to mind and the more constrained I am by the truth.  With marriage, it is no different.  The less I understand about marriage, I can claim any intrusion upon the free ability to marry anyone is unjustified.  The more I know, however, about the function of a family, why a family exists, what the purpose of a family is, the less able I am to freely redefine its structure.  Once the qualities and attributes of a family are known, then one can see why true freedom is best served by Prop 8, a freedom addressed in the California Constitution: to “secure and perpetuate [freedom’s] blessings,” given by God.

Part III will discuss the the functions and qualities of a family and how Prop 8 is suitable to perpetuate freedom’s blessings within that context.