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Editors' Note: This
is Chapter 24 to Elder Bruce Hafen's book, Covenant Hearts. To read
the preface published on Meridian click here.
Because the First
Presidency has taken a public position against same-gender
marriage, President Gordon B. Hinckley has often been asked about
the Church’s attitude toward people who feel same-sex
attraction. His response is personally compassionate and doctrinally
clear:
We love them as sons
and daughters of God. They may have certain inclinations which
are powerful and which may be difficult to control... If they
do not act upon these inclinations, then they can go forward as
do all other members of the Church.
We want to help these
people, to strengthen them, to assist them with their problems
and to help them with their difficulties. But we cannot stand
idle if they indulge in immoral activity, if they try to uphold
and defend and live in a so-called same-sex marriage
situation. To permit such would be to make light of the very serious
and sacred foundation of God-sanctioned marriage and its
very purpose, the rearing of families.” 1
God-sanctioned
marriage between a man and a woman has been the basis of civilization
for thousands of years...
Some portray legalization
of so-called same-sex marriage as a civil right.
This is not a matter of civil rights; it is a matter of morality...
that is of critical importance to the future of the family...
We are compelled by our doctrine to speak out. 2
Because gay marriage
is fundamentally a moral issue, laws on this subject can alter both
personal and public moral attitudes about sex, marriage, and the
family.
For instance, the “individual
autonomy” theory (the idea that people should be free to live
as they please) behind the Massachusetts gay marriage case has developed
in a way that erodes the place of marriage as a socially guarded
institution. By extension, this reduces children and their best
interests to incidental, unprotected tangents of adult autonomy.
To explain how this happens requires a brief look at how the law
classifies various kinds of human behavior.
Same-sex marriage
blurs the distinction between what society tolerates and what it
endorses. Opinion polls show that a majority of the American people
have grown more tolerant of gay lifestyles, just as they have grown
more tolerant of personal choices on many lifestyle issues.
Most people today would
not consider adult homosexual behavior a crime. But the polls typically
show that roughly one-third favor same-sex marriage. The
public draws a clear distinction between tolerating gay lifestyles
and promoting them by the legal endorsement inherent in marriage.
3
Said another way, Americans
draw a clear line between “passive toleration” and “active
support” of homosexual conduct. 4
Our laws distinguish
between toleration and endorsement by maintaining three broad categories
of conduct: (1) conduct that is “prohibited,” such as
robbery; (2) conduct that is “permitted,” such as making
a contract; and (3) conduct that is especially “protected”
(as by special constitutional rights), such as worshipping God or
giving a political speech.
The Constitution’s
Bill of Rights gives such high preference to protected conduct that
the state may regulate it only if the state can show a truly compelling
need for regulation.
Civil rights advocates
worked successfully and admirably during the past generation to
move the choices of racial minorities and women from being merely
“permitted” to being legally “protected”
by potent antidiscrimination laws. During the early part of this
same era, gays and lesbians were working to convince state legislatures
to change the classification of their behavior from being “prohibited”
to being “permitted” by repealing laws that had made
homosexual acts a crime.
There is a natural
line of “tolerance” between prohibited and permitted,
and another natural line of “endorsement” between permitted
and protected:
For example, the United
States Supreme Court has held that family and kinship-based
interests, such as the right to direct the upbringing of one’s
own children, are constitutionally protected rights. The Constitution
therefore not only “tolerates” these choices but affirmatively
endorses and protects them — because, the Court has said,
the obligations of parenthood, marriage, and biological kinship
are fundamental to preserving a civilized order. Such weighty societal
obligations are worthy of being highly protected, not merely being
tolerated or permitted.
One consequence of
the law’s protecting marriage is that the state is a party
to the marriage; and the state must legally approve both starting
and ending it. That’s why a state license and ceremony are
required to create a legal marriage, and a state court judgment
is required to end a marriage. These formalities are not required
to create or dissolve other legal contracts. Society actually has
a greater stake in the creation and survival of each marriage than
it does in the survival of each business agreement, even though
a healthy economy obviously needs stable businesses.
Society is now more
willing than in the past to tolerate homosexual behavior between
adults. Does that mean that same-gender marriage should now
move to the “permitted” range, or even the “protected”
range?
The question is not
whether the legal system should no longer consider homosexual acts
a crime. That has already happened. The United States Supreme Court
now “permits” homosexual relations, but it has stopped
short of endorsing them with a protected constitutional right. What
makes gay marriage such a big next step is that its official formality
not only permits gay conduct but the nature and protocol of state
sponsorship also have the effect of endorsing and even promoting
that conduct.
The credibility of
this endorsement arises from the place of marriage in both our law
and culture as an important — actually our most important
— social institution. From the perspective of prophetic teachings,
state endorsement means the government would be promoting serious
immorality.
Perhaps because they
realize that the public is not really ready to give them that much
state support, many gay rights advocates insist that marriage is
not really a social institution but a strictly individual choice.
That is one reason why the 2003 Massachusetts case that protected
gay marriage grounded its reasoning on “principles of respect
for individual autonomy.” 5 “Autonomy”
does not claim to have high social value. Indeed, autonomy arguments
often thrive on challenging society’s established order. So
these advocates urge that the state should disengage from the role
of promoting society’s interest in marriage and family life.
In the most forceful
statement yet by a Supreme Court justice in support of gay rights,
Justice Harry Blackmun wrote in 1986 that he would protect homosexual
behavior not because it promotes any social value but precisely
because it dissents from the established social order: “We
protect these rights not because they contribute... to the general
public welfare, but because they form so central a part of an individual’s
life,” including one’s “right to differ as to
things that touch the heart of the existing order.” 6
Ironically, however,
the Massachusetts judges in the 2003 gay marriage case cited several
instances in which homosexual couples who wanted the right to marry
already had children in their homes. This little-noticed element
in those cases was going a very different direction from Justice
Blackmun’s assumption that homosexual relationships may not
benefit society but should be protected anyway. Once adopted or
surrogate children are in the home of gay parents, the parent-child
relationship means the marriage is no longer a simple matter of
adult personal autonomy.
Though they didn’t
say so, I believe the lawyers for the Massachusetts gay couples,
and the judges who agreed with them, thought that by showing that
these couples were raising children (with no comment on how that
experience affects children), they hoped to establish same-gender
marriage as an acceptable enough childrearing environment to serve
society’s interest in how children are raised.
However, the empirical
research makes clear that a child’s being with both father
and mother is clearly the optimal environment for childrearing,
which is why our social policies have always given that environment
such high priority.
In 2001, for example,
the New York Times reported a “powerful consensus” in
the social science research that “from a child’s point
of view... the most supportive household is one with two biological
parents in a low-conflict marriage.” 7
Further, one of the principal goals of the diverse groups who support
the current national “marriage movement” is to “make
the case that each child has a right to grow up with his or her
own mother and father who love the child and love each other, and
that supporting [hetereosexual] marriage is society’s main
way of giving children this right.” 8
Even though this ideal
is not always possible because of deaths and unavoidable divorces,
children need the stability and role-modeling of being raised
by their two biological parents. The further society chooses to
depart from the ideal, the greater will be the risk to children
and their future. The Proclamation on the Family states that “children
are entitled... to be reared by a father and a mother.” When
a mother and father work at it, this pattern warmly invites both
boys and girls to grow up understanding the equal but distinct gifts
and roles of men and women who “honor marital vows with complete
fidelity.” 9
The power of the law
to communicate society’s endorsement tells us that our system
does not and should not protect everything it tolerates. If we merge
tolerance with protection, our system will end up removing marriage
and childrearing from the most protected legal sphere, because the
lowest common denominator effect of “individual autonomy”
denies the possibility that some relationships are more significant
to society than others. That’s what happens when we confuse
the distinction between what the law merely “permits”
and what it “protects.”
So, the closer our
society comes to approving gay marriage, the more we will actually
reduce our expectation that married people owe anything at all to
society, including their utmost effort to succeed in their marriages.
That is how gay marriage undermines the sense of personal and social
obligation that is fundamental to our thinking about what marriage
is and what it means.
Therefore, Robert Bork
believes, acceptance of the Massachusetts court’s same-gender
marriage theory “would ratify, in the most profound way, the
anarchical spirit of extreme personal... autonomy that is the driving
force behind much of our [current] cultural degradation.”
If that happens, marriage will be “just one more sexual arrangement
among others. The symbolic link between marriage, procreation, and
family is broken, and there is a rapid and persistent decline in
heterosexual marriages.” 10
Marriage was historically
understood in American law, even from a secular viewpoint, as a
three-party arrangement, with the state as a conscious party.
This understanding has reflected society’s high stake in each
marriage. Indeed, it is precisely the public part of marriage —
the high degree of social interest involved in its very concept
and function — that distinguishes it from all other relationships
and contracts. To marry is to accept a public responsibility to
the community and its basic social values, especially its values
about what is best for children.
For this reason, the
society itself, through its legislatures, has retained the primary
role in determining which relationships, which privileges, and which
duties reflect the kind of marriage that satisfies society’s
long-term interest in creating the culture of the future.
Our present legal definition
of marriage has not yet really altered this time-honored understanding,
but our recent public conversations have obscured it, and the outcome
of the same-sex marriage debate could obliterate it.
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