I'm posting this a little earlier than usual this week, though its about three days later than I had hoped to post. Back in August of 2010, I posted a layperson's summary of the district court opinion in Perry v. Schwarzenegger (the "Prop 8 case"). I am going to attempt to do the same thing for the Ninth Circuit's recently released 2-1 decision upholding Judge Walker's decision. I will leave the analysis and prognostication to other, more able hands, and try to describe the decision for those without the benefit (?) of legal training.
An appellate judicial decision in the United States federal court system is somewhat of a different beast than a district court decision. The court is not called upon to re-evaluate the factual evidence that was presented at the trial, so there are no new findings of fact. The evidence presented at trial is taken as given unless the appellate court finds "clear error" in how facts were presented, accepted or evaluated by the court and the jury The purpose of an appeal is to determine whether the trial judge (here Judge Walker) applied the law to the facts correctly. Here the Ninth Circuit applied a de novo standard to the conclusions of law, meaning they looked at them with no assumptions about whether the district court judge was right or wrong.
To begin with, the Ninth Circuit (or rather the two judges in the majority) approached the question presented somewhat differently than Judge Walker had at the original trial. Rather than asking whether gays and lesbians had a fundamental right to marry, it asked whether Prop 8's removal of that right, which had previously been granted by the California Supreme Court, was unconstitutional. This is a subtle and technical, but very important distinction, particularly in setting the case up for possible Supreme Court review. The Ninth Circuit ultimately decided that it was, stating "Proposition 8 serves no purpose, and has no effect, other than to lessen the status of human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
The Ninth Circuit first disposed of the issue of "standing," which asks whether the parties in question have the right to bring or defend a lawsuit on a particular issue. The ideal defendants in this lawsuit would have been the State of California or its officials, since those were the parties who could act to reverse the effects of Proposition 8. However, all of those defendants declined to participate; therefore, other defendants, including those who originally proposed and sponsored Prop 8, stepped forward. The Ninth Circuit determined that under California law, the state has allowed the official sponsors of a ballot initiative to represent the State and defend its interest in a lawsuit challenging the initiative. Therefore, the defendants had standing to proceed.
As background, accepting the facts as presented and found by the district court, the Ninth Circuit panel noted that under California law, "registered domestic partnerships" had (prior to Prop 8) and have (after Prop 8) the same bundle of rights as marriage, but without the name. In 2008, the California Supreme Court decided that the state statutes prohibiting marriage between same-sex couples was unconstitutional under the privacy and due process provisions of the state Constitution. The intent of Proposition 8, passed that same year, was to amend the state Constitution to reassert the prohibition. The effect was, in the words of the California Supreme Court, cited in the Ninth Circuit's opinion, that "[s]ame-sex couples retain all of the fundamental substantive components encompassed within the constitutional rights of privacy and due process, with the sole (albeit significant) exception of the right to equal access to the designation 'marriage'." The district court had determined that Prop 8 was unconstitutional because no "compelling state interest" justified violating same-sex couples' fundamental right to marry, and there was no "rational basis" for such discrimination under the Equal Protection Clause of the U.S. Constitution. [Author's Note: For an explanation of some of these legal terms and their significance, please see the former summary linked to above.]
In addition to those bases that were part of the district court opinion, at the appellate level, one of the plaintiffs (the City of San Francisco) offered a new rationale for Prop 8's unconstitutionality: that Prop 8 had singled out same-sex couples by depriving them of a right they previously possessed. The Ninth Circuit proceeded to analyze this rationale, since it was the "narrowest," meaning that accepting it would cause the smallest change in the whole scope of the law. This means they set aside the questions of whether same-sex couple have a right to marry, and ask simply whether, having already been granted the right by California's highest court, the voters could take it away. The only thing taken away was the name "marriage," since all of the other related rights were available under the title "registered domestic partnership." Nevertheless, the Ninth Circuit recognized that this name and title is significant and has a unique meaning ("A rose by any other name...") Because of this uniqueness, taking away that title strips value and dignity away from same-sex couples.
The Ninth Circuit analogized this case to the Romer case from Colorado. In Romer, the state constitution had been amended to forbid the state government and other political entities within the state from giving gays and lesbians any protection against discrimination on the basis of sexual orientation. The United States Supreme Court determined that the only rationale for such a law was animosity against a class of persons and such a rationale was not legitimate. The Ninth Circuit determined that, like Romer, Prop 8 created a special disability for a particular class and constitutionalized that disfavored status. It also stated that it was more suspicious since the discrimination was so precise (being limited to marriage) rather than the blanket effects that were present in the Romer case.
The Ninth Circuit proceeded to apply "rational basis" scrutiny, which is the lowest and weakest level of scrutiny under the Constitution. Under that standard, the classification must only bear "some rational relation to some legitimate end." Therefore, the relevant question becomes whether the voters of California could have legitimate and rational reasons for making the deliberate decision to remove the title of marriage from the relationships of gays and lesbians. The Ninth Circuit then looked at four possible reasons: (1) California's interest in childrearing and procreation, (2) proceeding with caution, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools. The Ninth Circuit bolstered the typical weakness of the rational basis standard by insisting that the rationale must have some basis in reality, and not be pure fantasy. According to the judges in the majority, all four reasons fail on that count. First, Prop 8 did not affect that ability of same-sex couples to become parents or raise children in California. California family law places the highest value on the social relationship of parents and children, not their biological relationship. Thus, the rationale of restricting marriage to those couples who can biologically procreate together, in order to strengthen and honor those bonds, makes no sense. [Here the Ninth Circuit delivers the best punch line of the entire opinion-- "we believe that the People of California 'could not reasonably' have 'conceived' such an argument 'to be true.'...It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman." So to all those people who actually believe that very thing, the Ninth Circuit says you're crazy]
The decision just as easily dismisses with the other three proffered reasons- first, that Prop 8 was designed so that changes in traditional marriage structures could proceed cautiously. The court found this unpersuasive since Prop 8 took effect only after 18,000 couples had been married and had no "sunset provision" or date of expiration or re-evaluation. It was not intended to slow change towards same-sex marriage, it was intended to foreclose it forever. Thus, this rationale could not be rationally related to Prop 8's purpose or effect. Next, the court found that religious liberty could not have been threatened because no religion had been or could be required to perform a same-sex marriage and Prop 8 did nothing to change that. Finally, since nothing about same-sex marriage was required to be taught in public schools either before or after Prop 8, this rationale was likewise inapplicable. The only prohibition, which existed prior to Prop 8, was against any instruction that discriminated on the basis of sexual orientation. Prop 8 did nothing to change that prohibition.
After disposing of the previous four reasons, the Ninth Circuit cast about for some other plausible rationale. Tradition was considered, but ultimately discarded, as tradition alone is insufficient to strip a minority of its rights. The only rationale that remained was the one found in Romer-- animosity towards gays and lesbians. The Ninth Circuit found that this was consistent with the evidence of the environment in which Prop 8 was passed and with the stated motivations and thoughts of its proponents. While "'private biases may be outside the reach of the law,...the law cannot, directly or indirect, give them effect.'" Moral disapproval, like the traditions on which it is built, is not alone a sufficient justification for removing rights from a minority.
Having found no rational or legitimate justification for the California voters' decision, and suggestions of at least one impermissible justification, the Ninth Circuit struck down Prop 8's removal of the right of gays and lesbians to use the title "marriage" to describe their legally recognized relationships.
There was a single partial dissent, though the dissent was on most of the substantive issues with the exception of standing. This has already run long, so I will not go into summarizing it, but will merely point you to Dahlia Lithwick's analysis at Slate, which seems to represent the consensus opinion that this dissent is pretty weak and does not give any higher court much to build on.
I hope that this has been clear, particularly for the lay persons. Feel free to ask any questions in the comments.
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The Nightstand (February 10, 2012)
Capitalism versus Democracy (Eric Ruder, Socialist Worker)
Understanding the Mormon Faith (Sally Steenland, Center for American Progress)- Another great interview with Joanna Brooks, this time on the website of one of the premier left-leaning think tanks. See also an extended piece on Brooks on the CNN Faith website.
The privatization trap (Mike Konczal, Salon)
Why Mitt Romney Doesn't Have a Prayer (Theo Anderson, In These Times)- This was a somewhat original take on Mitt Romney's perceived faith problem. Has less to do with evangelical distrust of Mormons, or the perceived oddness of Mormon doctrines, but on a lack of authenticity, openness, and tension with key institutions from the candidate himself.
Should it take decades to build a subway? (Will Doig, Salon)- I'm a big booster of public transit and wish that I lived in a place that could do a better job than a tiny light rail that goes from nowhere to nowhere. This article explains part of why that probably won't happen.
David Graeber's Debt: My First 5,000 Words (Aaron Bady, The New Inquiry)- I wrote a short blurb about this book last week, and this is the best review I have read of it so far.
We are the Media, and so are you (Jimmy Wales, Kat Walsh, WaPo op-ed)
Showing posts with label sexuality. Show all posts
Showing posts with label sexuality. Show all posts
11 February 2012
09 August 2010
The Prop 8 (Perry) Decision for Laymen
I am generally displeased with the quality of most journalism surrounding constitutional law and the cases interpreting and affecting it. Most of this kind of journalism tends to focus purely on the political (the motivation of the judges, which party will benefit, etc.), and even those few journalists who attempt sincerely and valiantly to explain the decisions (Linda Greenhouse, Dahlia Lithwick) generally write for those who have some degree of training in law or political science. What remains for consumption of the general public are a few choice and key quotes from the judge or panel's opinion. While these quotes may convey the essence of the decision, without any background or further exposition, they give readers the impression that these ideas were pulled out of thin air. This tends to decrease confidence in the integrity and wisdom of the judicial branch, and is deleterious to democracy in itself.
What I want to attempt to do here is describe and explain Judge Vaughn Walker's decision in Perry v. Schwarzenegger (the "Prop 8 case"), which struck down California's anti-same-sex marriage referendum on Wednesday, in a way that is comprehensible to someone who has never gone to law school (or for that matter, to college). I have made every effort to refrain from editorializing on the opinion's merits or on same-sex marriage in general.
Since many of you will not want to read all of what will be a quite long post, I have moved the key analysis and conclusions section to the beginning. If you wish to read the entirety of this piece, please skip to the horizontal line then return here when you reach the end.
Facts
I will not rehearse the facts of the Prop 8 saga, since I assume that they will be well-known to any who have an interest in reading what is to follow. What I will say is that in May 2008, the California Supreme Court held that California counties were required to issue marriage licenses to same-sex couples. In November of that same year, Proposition 8 revised the California Constitution to provide that marriage was between one man and one woman. In the intervening period, approximately 18,000 same-sex couples took advantage of the availability of marriage licenses. Those marriages were unaffected by Prop 8.
Grounds for Challenge
The plaintiffs, who are same-sex couples who had been denied marriage licenses following the passage of Prop 8, challenged the law under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. The proponents of Prop 8, who intervened in the case in lieu of the various state governmental officials who were named defendants (who had refused to defend the law), defended the law on the grounds that same-sex marriage would effect certain negative consequences that California had an interest in preventing by prohibiting the marriage of same-sex couples.
Review of Evidence
The court reviewed the testimony that had been provided at trial. [In the American federal court system, the trial court (or district court) hears the evidence and makes certain findings of fact. Appellate courts, such as the U.S. Supreme Court, may review the evidence produced at trial, but do not repeat the trial itself. Generally, such courts are confined to determining whether the trial court correct interpreted and applied the law to the facts as it found them.] Plaintiffs and proponents put on both lay (non-expert) and expert witnesses. The lay witnesses were primarily composed of the plaintiff couples, who testified as to why they wanted to be married, and persons who had been involved in the "Yes on 8" campaign (or ProtectMarriage), who testified regarding their efforts and motivations in opposing same-sex marriage. The trial judge had earlier explained at trial that he wished to have a full review of the status of gay and lesbians in society and the effects that same-sex marriage could potentially have on homosexual and heterosexual marriages. Thus, the expert witnesses ran the gamut from history, psychology, human development, economics, social epidemiology, and political science. The range and amount of testimony provided cannot even be effectively summarized in a space such as this (the opinion was 136 pages long), though I will provide some highlights below. However, the judge found that plaintiff's witnesses were generally credible in their testimony, and that proponents' experts lacked credibility. The judge stated his belief that the proponents had generally failed to provide any credible evidence that supported their bare assertions of negative consequences that would result from allowing same-sex marriage.
Plaintiffs' Expert Testimony
The plaintiffs' evidence consisted in part of the following ten points. Due to the fact that the judge adopted many of the expert's conclusions in his findings of fact, I have identified those findings by number. Plaintiffs' experts argued that:
(1) marriage in the US has always been a secular (or civic) institution and has undergone a number of changes and transformations over the course of American history (Finding #19);
(2) gays and lesbians are subject to widespread private and public discrimination and stigma, based on negative stereotypes of homosexuals that are without basis in fact (Findings #58, 67, 74-76, 78);
(3) same-sex couples and the state of California (and its cities and counties) have been subject to serious economic harm as a result of Prop 8 (Findings #64-66);
(4) same-sex couples are in all important respects similar to opposite-sex couples (Finding #48);
(5) allowing same-sex marriage would not have adverse effects on opposite-sex marriage (Finding #55);
(6) marriage has important benefits for the couple and any children raised in that marriage (Findings #50, 56);
(7) the stigma on gays and lesbians has negative effects on their mental health;
(8) homosexuality is a personality trait that is not chosen and is not amenable to change through therapy;
(9) children raised by same-sex couples are just as likely to be well-adjusted as children raised by heterosexual couples (Finding #69); and
(10) gays and lesbians do not possess a meaningful degree of political power.
Proponents' Expert Testimony
The proponents did not call many of their expert witnesses as they had originally planned. Their initial justification for this choice is that the experts feared exposing themselves to risks to their personal safety due to their testimony. However, after publication of the proceedings was prevented by a Supreme Court intervention, the plaintiffs still refused to call their witnesses. Plaintiffs offered the previously recorded testimony of two of proponents' experts. Those experts concluded that "religion lies at the heart of the hostility" against gays and lesbians and there was no evidence that children raised by same-sex couples fared worse than children raised by opposite-sex couples.
The proponents did offer the testimony of two expert witnesses. One of those witnesses, David Blankenhorn, was the founder and president of the Institute for American Values, a family values think tank. The court dismissed Blankenhorn's testimony for his lack of qualifications or support for his conclusions. He lacked formal training in the relevant fields, had no peer-reviewed publications, and his conclusions were not produced using reliable methods (i.e. scientific methods). Blankenhorn had testified that the state had a interest in preserving opposite-sex marriage in order to regulate the bearing and raising of children. This was important because children raised by married, biological parents do better than children in other environments. However, the court found that the evidence he used to arrive at this conclusion only compared married, biological parents with other living situations that were not the equivalent of married same-sex parents (e.g. single parents, step families). Blankenhorn also testified that three universal rules that governed marriage: that it was between a man and a woman, that only two spouses were involved, and that sex was involved. Finally, Blankenhorn testified that recognizing same-sex marriage would lead to the "deinstitutionalization" of marriage, which he defined as out-of-wedlock marriage, non-marital cohabitation, rising divorce rates, etc. The court found that he produced no credible evidence to support these conclusions. Besides the general lack of reliability in this opinions, the court found that Blankenhorn's testimony contradicted his own opinions in several respects. Proponent's second expert, Kenneth Miller, is a professor of government at Claremont McKenna College. The purpose of Miller's testimony was to show that gays and lesbians enjoyed significant political power. The court found that, because Miller had failed to consider key evidence and was not familiar with gay and lesbian politics, his testimony should be discounted. The court further found that Miller's previous writings contradicted his testimony as a witness for the proponents.
Findings of Fact
In addition to those findings of fact listed above under Plaintiff's Expert Testimony, the court made certain other findings of fact on which it based its legal conclusions. While space does not permit me to do so here, the court identified specific citations to the trial record, including documents and testimony offered by experts for both sides, that supported his findings. These findings include:
(1) CA, like other states, did not require that couples be willing or able to procreate in order to obtain a marriage license (Finding #21);
(2) Marriage requires free consent of the parties (Finding #23);
(3) Marriage has undergone significant changes in the course of American history, including the elimination of racial restrictions, the elimination of status of women as property of her husband, and the equalization of gender roles in marriage. These changes have not weakened marriage. (Findings #24-28, 33);
(4) Under current law, marital partners have equal obligations to one another and their dependents (Finding #32)
(5) Marriage is a state recognition with many purposes, including family stability, legitimating children, and establishing support obligations, and is used to provide benefits to certain couples (Findings #34-37);
(6) Marriage is good for the health and material well-being of those involved, including children (Findings #38-41);
(7) Same-sex behavior has a long history, though a separate identity for homosexuals developed in the late 19th century (Finding #42);
(8) Sexual orientation is an enduring pattern of behavior, stable through adulthood, and is a fundamental and distinguishing characteristic of an individual's identity. It is not a choice and cannot be change through decision or therapy (Findings #43-44, 46);
(9) CA law already allows gays and lesbians to become parents (Finding #49);
(10) Domestic partnership is not equal to marriage, due to different symbolic meanings and benefits, and is inferior to marriage (Findings #52-54);
(11) Prop 8 requires unequal treatment and inferior treatment of same-sex couples vis a vis opposite-sex couples (Findings #59-60);
(12) Prop 8 codifies distinct traditional gender roles in marriage (Finding #61);
(13) Prop 8 does not affect the First Amendment rights of those opposed to same-sex marriage (Finding #62);
(14) Prop 8 does not affect other constitutional rights (Finding #63);
(15) Gender and sexual orientation of parents, r a child's genetic relationship to parents, are not factors in a child's adjustment. Opposite-sex couples are not required to produce well-adjusted children (Findings #69-73);
(16) Religious beliefs in the sinfulness or inferiority of homosexual relationships are harmful to gays and lesbians (Finding #77); and
(17) The campaign to pass Prop 8 was based on never-articulated and vague fears about homosexuals and stereotypes (Findings #79-80).
[If you have read this far, please return to the top and read the "Conclusions of Law" section.]
What I want to attempt to do here is describe and explain Judge Vaughn Walker's decision in Perry v. Schwarzenegger (the "Prop 8 case"), which struck down California's anti-same-sex marriage referendum on Wednesday, in a way that is comprehensible to someone who has never gone to law school (or for that matter, to college). I have made every effort to refrain from editorializing on the opinion's merits or on same-sex marriage in general.
Since many of you will not want to read all of what will be a quite long post, I have moved the key analysis and conclusions section to the beginning. If you wish to read the entirety of this piece, please skip to the horizontal line then return here when you reach the end.
Conclusions of Law
Based on the court's Findings of Fact (see below), the court made several conclusions interpreting the caselaw of the Fourteenth Amendment's Due Process (no state "[shall] deprive any person of life, liberty, or property without due process of law") and Equal Protection Clauses (no state shall "deny to any person within its jurisdiction the equal protection of the laws"). The analyses under each clause involves different legal theories and requirements; however, they are based on the same underlying determination-- that the right to marry is "fundamental." The "fundamental" status of a right depends on its history and legal tradition. The status of marriage as a fundamental right has a long pedigree in the United States. The key question is whether the right sought by plaintiffs is a new right, the right to same-sex marriage, or is the same "right to marry" as has long been recognized. To determine whether the right claimed by plaintiffs is the same fundamental right, the court examined the precise nature and content of the right sought. The court found that the chief characteristics of marriage that remain unchanged throughout history are: two parties giving free consent, forming a household, and supporting one another and their dependents. It determined that neither procreative ability nor specific and distinct gender roles were vital to marriage. Instead, under modern marriage principles, men and women are recognized as equals and are free to negotiate their own roles on the basis of their individual relationship. Individuals are granted a space of choice and intimacy in making decisions regarding their marriage, including whom they choose to marry. After establishing the core values of marriage, the court found that same-sex couples are "situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage." Therefore, the court found that same-sex couples did not seek recognition of a new right, but rather of the same right to marry as is currently enjoyed by opposite-sex couples.
Having determined that the right to marry sought by plaintiffs was fundamental, the Due Process Clause prohibits government from burdening the exercise of that right unless it can show that the government has a "compelling interest" in burdening it and that the law is carefully limited and designed ("narrowly tailored") to accomplish that objective. [Under contemporary constitutional jurisprudence, this test is known as "strict scrutiny" and is the most stringent of the constitutional tests.] Furthermore, the court recognized that "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." The court found that Prop 8 could not meet even the much lower test [known as "rational basis review"] of showing any legitimate government interest in preventing same-sex couples from marrying. The potential government interests identified by proponents are discussed below.
The Equal Protection Clause asks whether the government creates a classification that targets a "suspect class" (a class with a history of discrimination that may be unable to defend itself from such discrimination) or burdens a fundamental right. Plaintiffs argued, and the court accepted, that Prop 8 discriminated in allowing individuals to exercise a fundamental right both on the basis of gender (men could marry women, but could not marry other men, etc.) and on sexual orientation. These categories are both constitutionally protected, but courts have not subjected such classifications to strict scrutiny (i.e. they are not a suspect class). Nevertheless, the court found that gays and lesbians are the type of minority that the Equal Protection Clause was designed to protect, due to their history of discrimination based on false stereotypes. While the gender classification applies to heterosexuals and homosexuals alike, Prop 8 eliminates a right "only a gay man or a lesbian would exercise," therefore there was a classification uniquely damaging to homosexuals. As was the case with the Due Process Clause analysis cited above, the court found that the proponents could not even show any legitimate government interest to which Prop 8 was rationally related-- it could not pass even the weakest constitutional test.
The court went on to analyze rationales offered by the proponents as legitimate government interests that Prop 8 could advance, namely: (1) preserving "traditional marriage"; (2) proceeding with caution in enacting social change; (3) promoting opposite-sex parenting; (4) protecting the freedom of those who oppose same-sex marriage; and (5) distinguishing between same-sex couples and opposite-sex couples. The court reviewed these rationales extensively, but determined in each case that a) that the rationale was not a legitimate one for government (e.g. tradition alone); b) that the rationale was not reasonable given the evidence provided (i.e. that same-sex couples and opposite-sex couples were fundamentally the same and that children were not adversely affected by being raised with two same-sex parents); or c) that Prop 8 would actually produce effects that damaged the interests identified by proponents (i.e. that the purpose was not reasonably related to what Prop 8 would actually cause).
Having reviewed and rejected all of the proposed interests, the court inferred, as supported by evidence in the trial record, that Prop 8's true motivation was not a legitimate government interest, but a "private moral view" about the immorality and inferiority of same-sex couples. The court then cited past Supreme Court cases stating that such beliefs are "not a proper basis on which to legislate."
Having found no "rational basis" for the law, but instead only an impermissible moral disapproval at the heart of Prop 8, the court declared Prop 8 unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
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Facts
I will not rehearse the facts of the Prop 8 saga, since I assume that they will be well-known to any who have an interest in reading what is to follow. What I will say is that in May 2008, the California Supreme Court held that California counties were required to issue marriage licenses to same-sex couples. In November of that same year, Proposition 8 revised the California Constitution to provide that marriage was between one man and one woman. In the intervening period, approximately 18,000 same-sex couples took advantage of the availability of marriage licenses. Those marriages were unaffected by Prop 8.
Grounds for Challenge
The plaintiffs, who are same-sex couples who had been denied marriage licenses following the passage of Prop 8, challenged the law under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the US Constitution. The proponents of Prop 8, who intervened in the case in lieu of the various state governmental officials who were named defendants (who had refused to defend the law), defended the law on the grounds that same-sex marriage would effect certain negative consequences that California had an interest in preventing by prohibiting the marriage of same-sex couples.
Review of Evidence
The court reviewed the testimony that had been provided at trial. [In the American federal court system, the trial court (or district court) hears the evidence and makes certain findings of fact. Appellate courts, such as the U.S. Supreme Court, may review the evidence produced at trial, but do not repeat the trial itself. Generally, such courts are confined to determining whether the trial court correct interpreted and applied the law to the facts as it found them.] Plaintiffs and proponents put on both lay (non-expert) and expert witnesses. The lay witnesses were primarily composed of the plaintiff couples, who testified as to why they wanted to be married, and persons who had been involved in the "Yes on 8" campaign (or ProtectMarriage), who testified regarding their efforts and motivations in opposing same-sex marriage. The trial judge had earlier explained at trial that he wished to have a full review of the status of gay and lesbians in society and the effects that same-sex marriage could potentially have on homosexual and heterosexual marriages. Thus, the expert witnesses ran the gamut from history, psychology, human development, economics, social epidemiology, and political science. The range and amount of testimony provided cannot even be effectively summarized in a space such as this (the opinion was 136 pages long), though I will provide some highlights below. However, the judge found that plaintiff's witnesses were generally credible in their testimony, and that proponents' experts lacked credibility. The judge stated his belief that the proponents had generally failed to provide any credible evidence that supported their bare assertions of negative consequences that would result from allowing same-sex marriage.
Plaintiffs' Expert Testimony
The plaintiffs' evidence consisted in part of the following ten points. Due to the fact that the judge adopted many of the expert's conclusions in his findings of fact, I have identified those findings by number. Plaintiffs' experts argued that:
(1) marriage in the US has always been a secular (or civic) institution and has undergone a number of changes and transformations over the course of American history (Finding #19);
(2) gays and lesbians are subject to widespread private and public discrimination and stigma, based on negative stereotypes of homosexuals that are without basis in fact (Findings #58, 67, 74-76, 78);
(3) same-sex couples and the state of California (and its cities and counties) have been subject to serious economic harm as a result of Prop 8 (Findings #64-66);
(4) same-sex couples are in all important respects similar to opposite-sex couples (Finding #48);
(5) allowing same-sex marriage would not have adverse effects on opposite-sex marriage (Finding #55);
(6) marriage has important benefits for the couple and any children raised in that marriage (Findings #50, 56);
(7) the stigma on gays and lesbians has negative effects on their mental health;
(8) homosexuality is a personality trait that is not chosen and is not amenable to change through therapy;
(9) children raised by same-sex couples are just as likely to be well-adjusted as children raised by heterosexual couples (Finding #69); and
(10) gays and lesbians do not possess a meaningful degree of political power.
Proponents' Expert Testimony
The proponents did not call many of their expert witnesses as they had originally planned. Their initial justification for this choice is that the experts feared exposing themselves to risks to their personal safety due to their testimony. However, after publication of the proceedings was prevented by a Supreme Court intervention, the plaintiffs still refused to call their witnesses. Plaintiffs offered the previously recorded testimony of two of proponents' experts. Those experts concluded that "religion lies at the heart of the hostility" against gays and lesbians and there was no evidence that children raised by same-sex couples fared worse than children raised by opposite-sex couples.
The proponents did offer the testimony of two expert witnesses. One of those witnesses, David Blankenhorn, was the founder and president of the Institute for American Values, a family values think tank. The court dismissed Blankenhorn's testimony for his lack of qualifications or support for his conclusions. He lacked formal training in the relevant fields, had no peer-reviewed publications, and his conclusions were not produced using reliable methods (i.e. scientific methods). Blankenhorn had testified that the state had a interest in preserving opposite-sex marriage in order to regulate the bearing and raising of children. This was important because children raised by married, biological parents do better than children in other environments. However, the court found that the evidence he used to arrive at this conclusion only compared married, biological parents with other living situations that were not the equivalent of married same-sex parents (e.g. single parents, step families). Blankenhorn also testified that three universal rules that governed marriage: that it was between a man and a woman, that only two spouses were involved, and that sex was involved. Finally, Blankenhorn testified that recognizing same-sex marriage would lead to the "deinstitutionalization" of marriage, which he defined as out-of-wedlock marriage, non-marital cohabitation, rising divorce rates, etc. The court found that he produced no credible evidence to support these conclusions. Besides the general lack of reliability in this opinions, the court found that Blankenhorn's testimony contradicted his own opinions in several respects. Proponent's second expert, Kenneth Miller, is a professor of government at Claremont McKenna College. The purpose of Miller's testimony was to show that gays and lesbians enjoyed significant political power. The court found that, because Miller had failed to consider key evidence and was not familiar with gay and lesbian politics, his testimony should be discounted. The court further found that Miller's previous writings contradicted his testimony as a witness for the proponents.
Findings of Fact
In addition to those findings of fact listed above under Plaintiff's Expert Testimony, the court made certain other findings of fact on which it based its legal conclusions. While space does not permit me to do so here, the court identified specific citations to the trial record, including documents and testimony offered by experts for both sides, that supported his findings. These findings include:
(1) CA, like other states, did not require that couples be willing or able to procreate in order to obtain a marriage license (Finding #21);
(2) Marriage requires free consent of the parties (Finding #23);
(3) Marriage has undergone significant changes in the course of American history, including the elimination of racial restrictions, the elimination of status of women as property of her husband, and the equalization of gender roles in marriage. These changes have not weakened marriage. (Findings #24-28, 33);
(4) Under current law, marital partners have equal obligations to one another and their dependents (Finding #32)
(5) Marriage is a state recognition with many purposes, including family stability, legitimating children, and establishing support obligations, and is used to provide benefits to certain couples (Findings #34-37);
(6) Marriage is good for the health and material well-being of those involved, including children (Findings #38-41);
(7) Same-sex behavior has a long history, though a separate identity for homosexuals developed in the late 19th century (Finding #42);
(8) Sexual orientation is an enduring pattern of behavior, stable through adulthood, and is a fundamental and distinguishing characteristic of an individual's identity. It is not a choice and cannot be change through decision or therapy (Findings #43-44, 46);
(9) CA law already allows gays and lesbians to become parents (Finding #49);
(10) Domestic partnership is not equal to marriage, due to different symbolic meanings and benefits, and is inferior to marriage (Findings #52-54);
(11) Prop 8 requires unequal treatment and inferior treatment of same-sex couples vis a vis opposite-sex couples (Findings #59-60);
(12) Prop 8 codifies distinct traditional gender roles in marriage (Finding #61);
(13) Prop 8 does not affect the First Amendment rights of those opposed to same-sex marriage (Finding #62);
(14) Prop 8 does not affect other constitutional rights (Finding #63);
(15) Gender and sexual orientation of parents, r a child's genetic relationship to parents, are not factors in a child's adjustment. Opposite-sex couples are not required to produce well-adjusted children (Findings #69-73);
(16) Religious beliefs in the sinfulness or inferiority of homosexual relationships are harmful to gays and lesbians (Finding #77); and
(17) The campaign to pass Prop 8 was based on never-articulated and vague fears about homosexuals and stereotypes (Findings #79-80).
[If you have read this far, please return to the top and read the "Conclusions of Law" section.]
06 November 2008
The Passage of Prop 8 - Three Consequences
By almost all accounts, it appears that CA voters approved Proposition 8, which eliminates the right of same-sex couples to marry in the state, on Tuesday. Opponents of the measure still have rapidly fading hopes that thousands of uncounted absentee ballots will reverse this outcome, but Prop 8's passage appears substantially certain at this point. As has been noted widely, Prop 8's passage would not have been likely or possible without heavy involvement, both financial and otherwise, from the Church of Jesus Christ of Latter-day Saints. From my own observations, here is what I see for California Mormons, and the Church more broadly, in the near future.
1. A hollow victory- It seems fairly clear that Prop 8's passage will only delay the arrival of gay marriage in California, not prevent it. In the eight years since Prop 22, which was similar in language but was only a statute, rather than a constitutional amendment, almost 10% of opposition to same-sex marriage has fallen off. Furthermore, exit polls (which I know, incorrectly predicted a loss for Prop 8) indicated that the under-30 crowd overwhelmingly voted against it (67-31) while the retiree set voted in favor 57-43. This means that in another ten to twenty years, a large portion of support for measures like Prop 8 will simply die of natural causes, ushering in a more tolerant electorate.
Also, legal challenges against Prop 8's passage have already started. Their merits and prospects are debatable, but it shows that this battle ain't over. This could end up in SCOTUS, which does not look favorable for gay marriage advocates right now, but could look much more so in another four years. I fully anticipate that a pro-gay-marriage proposition will be on the CA ballot at the next election, followed by a responding ballot proposition depending on who wins the first. (No matter what side of the SSM debate you are on, I think that we can all agree that the ability to amend the state constitution based on a simple 50%+1 majority is positively ridiculous. A 2/3rds requirement I can get behind, but the purpose of constitutions is the protection of the rights of the minority. If a simple majority can change the constitution, it is not doing its job.) Which leads me to the second consequence...
2. A massive Mormon exodus from California- The next ten years or so are going to be quite expensive for California Mormons. If, as I alluded to in the first section, we see a series of back-and-forth ballot propositions on SSM in California every two years or so, few members of the Church will be able to afford to live in California (as if it were not hard enough already). They are facing: higher federal taxes on their $200K+ income (Obama), CA's already crazy-high state taxes (which may grow due to budget shortfalls), and a special "Mormon tax," which will end up being an extra ~$5-25K or more every couple of years to a "Yes/No on ___" campaign. It may finally get to the point where opposing gay marriage prevents California Mormons from building their food storage, having more kids, sending those kids on missions/to college, and saving for retirement. At that point, they will bolt for Utah and other points in red states. That leaves CA church units in the hands of 1) less-affluent members of the Church who were not donating to the campaigns in the first place, and 2) those who did not donate because of their support for SSM. Of course, this may end up being a boon to Utah and other "receiver" states since many of these members will be high-functioning members of society and the Church.
3. A brooding storm- The next few years are going to be very trying for members of the Church, both in California and elsewhere. We can break this down into several headings:
Missionary work- As I alluded to earlier, the vote of the under-30 set was overwhelmingly in favor of allowing SSM. In addition, people with any college education voted against Prop 8 by a wide margin. I suspect that something similar is afoot in other states, to a lesser extent in the South and Midwest, but still true in urban areas and college towns of those regions. Because the Church's crucial involvement in passing Prop 8 is so widely known (thanks Internet!), missionary work in this demographic is going to suffer terribly. Affluent college-educated folks are your future mission presidents, bishops, stake presidents, etc. and a whole lot of them will never give the missionaries a sympathetic ear after this.
Getting things done- In the next couple of years, whenever the Church wants to accomplish anything that requires any kind of public approval (building a new building, etc.) in CA or any of the more liberal states, they are going to find a whole lot of obstructions put up by those whose approval they need. I feel like most liberal-minded people looked at Mormons pre-Prop 8 and said: "well, they have some crazy beliefs but they seem to be genuinely good and kind people." Those days are over. We have become a "hiss and a byword."
The opinion of others- this could fall equally under the previous heading, but I will elaborate further here. The number of people I have seen on the Internet swearing an eternal hostility towards the Church, not because of Joseph Smith, the Book of Mormon, an embodied God, etc., but because of our advocacy on Prop 8, is absolutely frightening. I suspect we will see more of the attitude that this unfortunate commercial espouses. In the mind of SSM advocates, because of our open and public involvement in this political issue, everything we do will be put under the most rigorous scrutiny, and any criticism is fair game. We have already seen public protests at temples and meetinghouses, which is, in my mind, extremely unfortunate, but again, we are getting no more free passes ever again.
The membership- You might have read stories in the news or elsewhere on the Internet about people leaving the Church because of the Yes on 8 campaign. I don't have any personal anecdotes, but it seems like Yes on 8 is really going to tear apart the fabric of families, wards, and neighborhoods within the Church. My sense is that a lot of these people were inactive anyway, and while it is still a great loss, it is not likely to be felt in individual wards and stakes. But there is a "ticking time bomb" out there of members who have been hurt, either on their own behalf or on behalf of friends, relatives, and neighbors, and this pain is going to fester and stew. Some are just waiting for some other excuse to push them over the edge into inactivity or more direct measures to end their membership. If the "Yes on 8" campaigns repeats itself in the near future (see my #1 above) that will likely be sufficient excuse for many.
Also, any thawing on the SSA issue is over. Members who struggle with SSA but are trying to stay active and chaste are going to sense the increased hostility towards those like them, not because of Prop 8 itself, but because of the sometimes hostile and inflammatory rhetoric used in the campaign. They too are likely to bolt.
These prognostications are somewhat hyperbolic (and intentionally so), but not so far outside the realm of possibility that they should not be taken seriously.
1. A hollow victory- It seems fairly clear that Prop 8's passage will only delay the arrival of gay marriage in California, not prevent it. In the eight years since Prop 22, which was similar in language but was only a statute, rather than a constitutional amendment, almost 10% of opposition to same-sex marriage has fallen off. Furthermore, exit polls (which I know, incorrectly predicted a loss for Prop 8) indicated that the under-30 crowd overwhelmingly voted against it (67-31) while the retiree set voted in favor 57-43. This means that in another ten to twenty years, a large portion of support for measures like Prop 8 will simply die of natural causes, ushering in a more tolerant electorate.
Also, legal challenges against Prop 8's passage have already started. Their merits and prospects are debatable, but it shows that this battle ain't over. This could end up in SCOTUS, which does not look favorable for gay marriage advocates right now, but could look much more so in another four years. I fully anticipate that a pro-gay-marriage proposition will be on the CA ballot at the next election, followed by a responding ballot proposition depending on who wins the first. (No matter what side of the SSM debate you are on, I think that we can all agree that the ability to amend the state constitution based on a simple 50%+1 majority is positively ridiculous. A 2/3rds requirement I can get behind, but the purpose of constitutions is the protection of the rights of the minority. If a simple majority can change the constitution, it is not doing its job.) Which leads me to the second consequence...
2. A massive Mormon exodus from California- The next ten years or so are going to be quite expensive for California Mormons. If, as I alluded to in the first section, we see a series of back-and-forth ballot propositions on SSM in California every two years or so, few members of the Church will be able to afford to live in California (as if it were not hard enough already). They are facing: higher federal taxes on their $200K+ income (Obama), CA's already crazy-high state taxes (which may grow due to budget shortfalls), and a special "Mormon tax," which will end up being an extra ~$5-25K or more every couple of years to a "Yes/No on ___" campaign. It may finally get to the point where opposing gay marriage prevents California Mormons from building their food storage, having more kids, sending those kids on missions/to college, and saving for retirement. At that point, they will bolt for Utah and other points in red states. That leaves CA church units in the hands of 1) less-affluent members of the Church who were not donating to the campaigns in the first place, and 2) those who did not donate because of their support for SSM. Of course, this may end up being a boon to Utah and other "receiver" states since many of these members will be high-functioning members of society and the Church.
3. A brooding storm- The next few years are going to be very trying for members of the Church, both in California and elsewhere. We can break this down into several headings:
Missionary work- As I alluded to earlier, the vote of the under-30 set was overwhelmingly in favor of allowing SSM. In addition, people with any college education voted against Prop 8 by a wide margin. I suspect that something similar is afoot in other states, to a lesser extent in the South and Midwest, but still true in urban areas and college towns of those regions. Because the Church's crucial involvement in passing Prop 8 is so widely known (thanks Internet!), missionary work in this demographic is going to suffer terribly. Affluent college-educated folks are your future mission presidents, bishops, stake presidents, etc. and a whole lot of them will never give the missionaries a sympathetic ear after this.
Getting things done- In the next couple of years, whenever the Church wants to accomplish anything that requires any kind of public approval (building a new building, etc.) in CA or any of the more liberal states, they are going to find a whole lot of obstructions put up by those whose approval they need. I feel like most liberal-minded people looked at Mormons pre-Prop 8 and said: "well, they have some crazy beliefs but they seem to be genuinely good and kind people." Those days are over. We have become a "hiss and a byword."
The opinion of others- this could fall equally under the previous heading, but I will elaborate further here. The number of people I have seen on the Internet swearing an eternal hostility towards the Church, not because of Joseph Smith, the Book of Mormon, an embodied God, etc., but because of our advocacy on Prop 8, is absolutely frightening. I suspect we will see more of the attitude that this unfortunate commercial espouses. In the mind of SSM advocates, because of our open and public involvement in this political issue, everything we do will be put under the most rigorous scrutiny, and any criticism is fair game. We have already seen public protests at temples and meetinghouses, which is, in my mind, extremely unfortunate, but again, we are getting no more free passes ever again.
The membership- You might have read stories in the news or elsewhere on the Internet about people leaving the Church because of the Yes on 8 campaign. I don't have any personal anecdotes, but it seems like Yes on 8 is really going to tear apart the fabric of families, wards, and neighborhoods within the Church. My sense is that a lot of these people were inactive anyway, and while it is still a great loss, it is not likely to be felt in individual wards and stakes. But there is a "ticking time bomb" out there of members who have been hurt, either on their own behalf or on behalf of friends, relatives, and neighbors, and this pain is going to fester and stew. Some are just waiting for some other excuse to push them over the edge into inactivity or more direct measures to end their membership. If the "Yes on 8" campaigns repeats itself in the near future (see my #1 above) that will likely be sufficient excuse for many.
Also, any thawing on the SSA issue is over. Members who struggle with SSA but are trying to stay active and chaste are going to sense the increased hostility towards those like them, not because of Prop 8 itself, but because of the sometimes hostile and inflammatory rhetoric used in the campaign. They too are likely to bolt.
These prognostications are somewhat hyperbolic (and intentionally so), but not so far outside the realm of possibility that they should not be taken seriously.
26 June 2008
Mormon woman appears on "30 Days." Hilarity does NOT ensue.
The timing was ironic, a little spooky even. Just last week I posted about one of my favorite TV shows, "30 Days," and imagined only briefly what a "Mormon" episode might look like and whether anyone would care. This Sunday, as has been reported elsewhere, the Church will formally announce the mobilization of its members to advocate for the passage of an amendment to the state constitution of California that would clearly define marriage as a relationship between one man and one woman. If I was really into conspiracy theories, I think this week's happenings would probably set me off.
This past Tuesday night, a Mormon woman appeared on "30 Days." The theme of the episode was same-sex or gay adoption. Our Mormon mother was assigned to live with a gay couple who were raising four children that they got from foster care. It was, in a word, awkward. Extremely awkward. When Morgan Spurlock, the show's creator and narrator, announced a few minutes into the show that this lady was "a member of the Church of Jesus Christ of Latter-day Saints, also known as the Mormons," my wife audibly groaned. I thought about reaching for a big tub of popcorn and a cold root beer. Fireworks- like the Fourth of July come early!
The Good- Kati (this sister's name), to her credit, did not explicitly lay the responsibility for her beliefs about same-sex adoption on the Church. More importantly, she did not lay the responsibility for her stubbornness and lack of charity on the Church either. In fact, if it were not for Spurlock "outing" her (oh, the irony) as part of introducing the cast, it is likely that nobody would have known that she was Mormon. From what I saw, she could have been a member of any conservative Christian denomination. (First, consider the implications of that.) In one instance, she did tell the couple that she knew her beliefs were true because she had prayed about them and received an answer. In another scene, she attended the couple's gay-friendly church, and could be seen to be holding a standard Quad. However, while setting off our Mo-dar, either of these two things would have completely eluded any non-Mormon watchers. I was thankful that her affiliation was kept on the down-low, not only for my own peace of mind, but, as I will further explore below, because I am not sure that opposition to same-sex adoption can be considered a Church position or doctrine.
The Bad- Kati would feel right at home with the maxim "When the prophet speaks, the thinking is done." When asked to explain her opposition to same-sex adoption, she constantly fell back on the refrain of "I believe that marriage is between a man and a woman" or "I don't believe that two gay people should be raising children." It was obvious to both my wife and I that this is not a subject about which she had reflected very much prior to this experience. In part, this fits well with the goal of the show, which is to expose people to new experiences, new ways of life, and new thoughts. However, it could not help but trouble me to see her be incapable of marshalling any better argument for her opposition than "I believe it's not right." Exclusively moral-based arguments, especially those rooted in subjective spiritual experiences (and by subjective I mean individualized, not false), tend to be unconvincing to those who do not share those beliefs or have not had those same spiritual experiences. My concern is that I believed she treated a general dislike of homosexual activity in the Church as a blanket license to not think seriously about the relative merits of our public policies and moral judgments about activities involving homosexuals, but which are not intrinsically linked with their homosexuality.
The Ugly- Completely unrelated to any Mormon elements within the show, what really made my blood boil was the attitude and behavior of the biological relatives (mother, aunt, uncle, sister) of one of the boys that the gay couple had taken in from foster care. Yes, they are alive. No, they were not in jail. The whole clan had a (temporarily) nice backyard cookout at the gay couple's home, at which the family which had abandoned this child proceeded to berate Kati for her opposition to homosexual adoption, which would have deprived their little boy of a loving home. As my wife's mission companion used to say, "Hey kettle, you black!" I understand that some people, despite their mistakes and failures, have the momentary clarity to recognize that a child, while biologically theirs, might be better off being raised with just about anybody else. I applaud that foresight, but doubt that the voluntary abandonment of a child, even if wise, gives one much moral high ground from which to cast rocks at others.
Conclusion
Does the Church's opposition to SSM, as expressed in their recent letter to CA congregations, demand that we oppose same-sex adoption with equal vigor? This is far from obvious and to my knowledge, such a position has never been expressed clearly in any official Church publication, including a First Presidency letter. (I am open to being proven wrong on this point though. Same-sex adoption is clearly illegal in the state of Utah.) Indeed, I think there are strong arguments why same-sex adoption is deserving of our support and admiration, regardless of what we think about SSM or homosexuality in general. The foster care system is a mess, in spite of the best efforts of well-meaning social workers and generous families. There are simply not enough willing permanent home providers among the straight population to take in all the kids that might need it. Also, gay families (yes I said it), because they are generally not first-choice adoptive parents, don't get the "cream of the crop" and end up taking more kids with disabilities, and other "un-adoptables." And thus, we open up the opportunity to adopt to same-sex couples. Further, far from simply being a kind of "last resort," gay parents have not proven to be demonstrably less capable of raising well-adjusted functioning children to adulthood in our society. It does not have a long enough history and the data are still out there. If they are able to do so, it may be even more laudable given the general opposition they face from the rest of us despite their best efforts.
This past Tuesday night, a Mormon woman appeared on "30 Days." The theme of the episode was same-sex or gay adoption. Our Mormon mother was assigned to live with a gay couple who were raising four children that they got from foster care. It was, in a word, awkward. Extremely awkward. When Morgan Spurlock, the show's creator and narrator, announced a few minutes into the show that this lady was "a member of the Church of Jesus Christ of Latter-day Saints, also known as the Mormons," my wife audibly groaned. I thought about reaching for a big tub of popcorn and a cold root beer. Fireworks- like the Fourth of July come early!
The Good- Kati (this sister's name), to her credit, did not explicitly lay the responsibility for her beliefs about same-sex adoption on the Church. More importantly, she did not lay the responsibility for her stubbornness and lack of charity on the Church either. In fact, if it were not for Spurlock "outing" her (oh, the irony) as part of introducing the cast, it is likely that nobody would have known that she was Mormon. From what I saw, she could have been a member of any conservative Christian denomination. (First, consider the implications of that.) In one instance, she did tell the couple that she knew her beliefs were true because she had prayed about them and received an answer. In another scene, she attended the couple's gay-friendly church, and could be seen to be holding a standard Quad. However, while setting off our Mo-dar, either of these two things would have completely eluded any non-Mormon watchers. I was thankful that her affiliation was kept on the down-low, not only for my own peace of mind, but, as I will further explore below, because I am not sure that opposition to same-sex adoption can be considered a Church position or doctrine.
The Bad- Kati would feel right at home with the maxim "When the prophet speaks, the thinking is done." When asked to explain her opposition to same-sex adoption, she constantly fell back on the refrain of "I believe that marriage is between a man and a woman" or "I don't believe that two gay people should be raising children." It was obvious to both my wife and I that this is not a subject about which she had reflected very much prior to this experience. In part, this fits well with the goal of the show, which is to expose people to new experiences, new ways of life, and new thoughts. However, it could not help but trouble me to see her be incapable of marshalling any better argument for her opposition than "I believe it's not right." Exclusively moral-based arguments, especially those rooted in subjective spiritual experiences (and by subjective I mean individualized, not false), tend to be unconvincing to those who do not share those beliefs or have not had those same spiritual experiences. My concern is that I believed she treated a general dislike of homosexual activity in the Church as a blanket license to not think seriously about the relative merits of our public policies and moral judgments about activities involving homosexuals, but which are not intrinsically linked with their homosexuality.
The Ugly- Completely unrelated to any Mormon elements within the show, what really made my blood boil was the attitude and behavior of the biological relatives (mother, aunt, uncle, sister) of one of the boys that the gay couple had taken in from foster care. Yes, they are alive. No, they were not in jail. The whole clan had a (temporarily) nice backyard cookout at the gay couple's home, at which the family which had abandoned this child proceeded to berate Kati for her opposition to homosexual adoption, which would have deprived their little boy of a loving home. As my wife's mission companion used to say, "Hey kettle, you black!" I understand that some people, despite their mistakes and failures, have the momentary clarity to recognize that a child, while biologically theirs, might be better off being raised with just about anybody else. I applaud that foresight, but doubt that the voluntary abandonment of a child, even if wise, gives one much moral high ground from which to cast rocks at others.
Conclusion
Does the Church's opposition to SSM, as expressed in their recent letter to CA congregations, demand that we oppose same-sex adoption with equal vigor? This is far from obvious and to my knowledge, such a position has never been expressed clearly in any official Church publication, including a First Presidency letter. (I am open to being proven wrong on this point though. Same-sex adoption is clearly illegal in the state of Utah.) Indeed, I think there are strong arguments why same-sex adoption is deserving of our support and admiration, regardless of what we think about SSM or homosexuality in general. The foster care system is a mess, in spite of the best efforts of well-meaning social workers and generous families. There are simply not enough willing permanent home providers among the straight population to take in all the kids that might need it. Also, gay families (yes I said it), because they are generally not first-choice adoptive parents, don't get the "cream of the crop" and end up taking more kids with disabilities, and other "un-adoptables." And thus, we open up the opportunity to adopt to same-sex couples. Further, far from simply being a kind of "last resort," gay parents have not proven to be demonstrably less capable of raising well-adjusted functioning children to adulthood in our society. It does not have a long enough history and the data are still out there. If they are able to do so, it may be even more laudable given the general opposition they face from the rest of us despite their best efforts.
18 June 2008
"[T]he best hour of television you're ever going to see in your life"
The title captures precisely how Morgan Spurlock, the auteur behind the well-known documentary Super Size Me, described the third episode of the third season of his FX show "30 Days." For those unfamiliar with the format, it essentially follows the formula of Super Size Me, placing a person into some unfamiliar or extreme living condition for 30 days. Past episodes have included requiring a worker from an abortion clinic to live at a pro-life women's shelter, requiring an atheist to live with a Christian family, and following Spurlock and his wife as they lived on minimum wage for a month. Last night's episode found a red state, red-meat-eating redneck from my own home state, NC, going to CA to live with vegan PETA members and work on in an farm animal rescue operation.
While Spurlock's self-assessment is clearly hyperbolic, "30 Days" has become one of my favorite hours of television ever. I love "Lost" and "The Office" as much as the next guy, but in my opinion, few shows on television have the ability to be as thought-provoking and interesting, instead of pandering to our hunger for simple, don't-bother-me-with-those-"idea"-things entertainment. Spurlock certainly has a poorly-concealed liberal bias (which, incidentally, I don't mind), but the primary message of the show seems to be the promotion of tolerance and inclusiveness, rather than something overtly political.
I tried to imagine a Mormon episode (either a Mormon going to live with an Evangelical family or vice versa) but frankly, despite what you might think, I doubt it would be very interesting. The groups have far too much in common as far as everyday living habits and values for there to be much friction, which is what the show thrives on of course. An episode devoted to someone living among polygamists has been suggested on the show's website, and while that would definitely be worth watching, I seriously doubt that the FLDS would be willing to voluntarily endure such heavy and constant scrutiny and exposure at this particular moment.
You can learn more about the show here.
If you want a short list of particularly strong episodes, my personal favorites are the following: Immigration (season 2, episode 1), Straight Man in a Gay World (season 1, episode 4), and last night's Animal Rights (season 3, episode 3).
Other thought-provoking television I enjoy: Frontline- pretty much the gold standard as far as TV documentaries in my opinion, but sometimes a little hit-or-miss as far as subject matter (I'm a little tired of the war on terror- related episodes). They were, however, co-sponsors of last year's The Mormons.
Also, if you need a book for your book club, try The Trouble with Diversity.
While Spurlock's self-assessment is clearly hyperbolic, "30 Days" has become one of my favorite hours of television ever. I love "Lost" and "The Office" as much as the next guy, but in my opinion, few shows on television have the ability to be as thought-provoking and interesting, instead of pandering to our hunger for simple, don't-bother-me-with-those-"idea"-things entertainment. Spurlock certainly has a poorly-concealed liberal bias (which, incidentally, I don't mind), but the primary message of the show seems to be the promotion of tolerance and inclusiveness, rather than something overtly political.
I tried to imagine a Mormon episode (either a Mormon going to live with an Evangelical family or vice versa) but frankly, despite what you might think, I doubt it would be very interesting. The groups have far too much in common as far as everyday living habits and values for there to be much friction, which is what the show thrives on of course. An episode devoted to someone living among polygamists has been suggested on the show's website, and while that would definitely be worth watching, I seriously doubt that the FLDS would be willing to voluntarily endure such heavy and constant scrutiny and exposure at this particular moment.
You can learn more about the show here.
If you want a short list of particularly strong episodes, my personal favorites are the following: Immigration (season 2, episode 1), Straight Man in a Gay World (season 1, episode 4), and last night's Animal Rights (season 3, episode 3).
Other thought-provoking television I enjoy: Frontline- pretty much the gold standard as far as TV documentaries in my opinion, but sometimes a little hit-or-miss as far as subject matter (I'm a little tired of the war on terror- related episodes). They were, however, co-sponsors of last year's The Mormons.
Also, if you need a book for your book club, try The Trouble with Diversity.
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