A Callous Dumbing Down of Mixed-Orientation Marriage Issues

“I am so fed up, it's unbelievable. There is no simple solution. No single right answer. I have to answer to so many. A family who needs me, but I am dying emotionally, mentally, spiritually … Yet to leave my children, to cause pain to both them and wife - that is something that is not me, not something I would deliberately do, let alone choose to do. I would rather die. And so I am dying …”

~ Gay Mormon Man in a Mixed-Orientation Marriage

This is not a post about same-sex marriage. This is a post about Mormon mixed-orientation marriages. Specifically, this is a post about an op-ed piece that appeared in Sunday’s Deseret News that conflates mixed-orientation marriages with the issue of same-sex marriage by touting that mixed-orientation marriages are an alternative to “same-sex marriage.” 

In support of this proposition, the authors of the article – Michael and Jenet Jacob Anderson – do not point to extensive personal experience with or research of Mormon mixed-orientation marriages, nor to they point to statistical or academic studies. In point of fact, their piece is not only based on but liberally quotes from (without explicitly identifying the source, other than through an innocuous link) an amicus brief filed with the 10th Circuit Court of Appeal in the Kitchen case.

The fact that the Ericksons take such an extremely complicated, emotional issue, i.e., mixed-orientation marriage, and use it for political purposes is repulsive to me. I lived in a mixed-orientation marriage for over 20 years. I know many Mormon men who either are or have lived in a mixed-orientation marriage. I know a fair bit about mixed-orientation marriages, and in every case of which I am aware, there has been a tremendous amount of heartache; the circumstances of each marriage were unique to the couple involved; and the sexual orientation of one of the partners was only one factor that played into how the marriages evolved and, in some cases, ended.

The fact of the matter is that many, many gay Mormon men of my generation entered into marriages with women because that is what the Church taught they should do. Marriage to a woman would fix their problem. Living the Plan of Happiness would fix their problem. But it didn’t. What it did was, sooner or later, to one degree or another, create a tremendous amount of heartache.

The stories of these men and their spouses and children are largely unknown to the general LDS population (something I hope to help change). Stories such as those of Miguel, Allen, Kurt, Gary, Mark, Scott, Sarah, Sean, Kennedy, Steve, Shawn, Dan, Beck, Jeff, and many others. Because of this obscurity, the issues these families face and have faced are not appreciated by the larger Mormon community. 

This highlights yet another reason I took issue with the Erickson’s piece. They point to a few stories of couples on the Voices of Hope website who are making their mixed-orientation marriages work, imply that these are the people whose stories have been suppressed and then callously use them for their own rhetorical/political purposes by claiming that “their lives dispel the myth that same-sex marriage is the only path to being free, equal and happy.” What nonsense. I would have to think that the couples whose stories are featured in Erickson’s piece would themselves be mortified at the use to which their stories were put.

There is yet one more aspect of the Erickson piece that offends.

Many, many gay and lesbian Mormons, at some point in their journey, have been asked by (sometimes) well-meaning friends, family members and ward members, “Why can’t you be like _____?” The blank represents someone who has “successfully” addressed their same-sex attraction and is a faithful Mormon. These well-meaning (but often ignorant) people point to websites such as ldsvoicesofhope.org as proof of their point; but what they often don’t realize is how complex same-sex attraction is and how offensive their “advice” is.

The Ericksons, in their piece, took this practice to a whole new level when they in essence applied it not to just one individual but to the entire community of gay Mormon men and women, implying that – if they wanted to – they could be like the people in the Voices of Hope videos. What the Ericksons did was ignorant, but I don't think is was well-meaning. It was callous, self-serving and offensive.

There are other voices available on the web that tell different stories from those found on Voices of Hope. Kendall Wilcox has collected and posted a number of these stories on his Far Between movie website. Stories of gay and lesbian Mormons who have chosen to live their sexuality with loving partners can be found at Voices of Love. In addition, I plan to republish a number of the posts I wrote about mixed-orientation marriages when I first came out, starting with one that I published earlier this month entitled “A Situation That Defies Our Nature,” from which the opening quote (above) was taken. 

The issues pertaining to mixed-orientation marriages are extremely complicated. There needs to be more awareness and knowledge of these issues in the Mormon community. But they need to be talked about in a respectful and sensitive way, not used for callous political purposes.

Marriage Equality: Rationality vs. Irrationality

Legislatures sometimes do some really irrational things. And sometimes, they or other groups in society prompt the populace as a whole to do some irrational things. And that's one of the reasons we have federal courts in this country: to review such actions to determine whether they are rational or irrational in light of the law of this land.

Specifically, a law that discriminates against a certain class of society must, at the very least, be rationally connected to a legitimate government purpose. If the law fails that test, then it is unconstitutional and must be struck down.

Case in point: Kitchen v. Herbert, the case that resulted in several Utah laws being struck down as unconstitutional, including Amendment 3 to Utah's state constitution (which I'll refer to collectively as the "Traditional Marriage Laws"). 

Another case in point that followed on the heels of Kitchen was Bishop et al v. Oklahoma et al, in which Federal District Court Judge Terence Kern ruled that Oklahoma's constitutional amendment banning same-sex marriage was also unconstitutional. 

The States of Utah and Oklahoma (the latter's interests represented by Tulsa County Clerk) were each obliged to defend these laws by, among other things, proving to the court that there is a rational connection between refusing to permit or recognize same-sex marriages and legitimate government purposes.

We're going to hear a lot about rational connections and legitimate government purposes in the months ahead as Kitchen v. Herbert and Bishop climb the appellate food chain (the 10th Circuit Court of Appeal will hear each case), perhaps all the way to the Supreme Court. So, I think it's worth taking a look at some of the "legitimate government purposes" that Utah claims justifies its Traditional Marriage Laws, claims that were echoed in the Bishop case.

Morality

Let's speak some truth here: Though the State of Utah and Anti-Marriage Equality advocates like to talk about preserving traditional marriage and the welfare of children - lots and lots of talk about the welfare of children - the bottom line is that these arguments (sometimes thinly veiled) are an attempt to hide the real reason they are against marriage equality, i.e., they believe homosexuality is immoral.

In his decision, Judge Kern in Bishop addressed the line of argument that the State has a rational interest in restricting marriage to heterosexual couples because homosexual behavior is immoral. 

“The Court recognizes,” he wrote, “that moral disapproval often stems from deeply held religious convictions … However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.” Quoting from the landmark decision of the Supreme Court in Lawrence (a decision which ruled that states cannot criminalize consensual gay sex), Judge Kern points out that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” 

In Kitchen, Judge Shelby addresses this point by quoting from Justice Scalia in Lawrence when he wrote, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same- sex couples.” And from another Supreme Court case, Shelby takes another quote when he writes, "'[While] [p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect' at the expense of a disfavored group’s constitutional rights." [Palmore v. Sidoti]

Preserving the Traditional Definition of Marriage

Another favorite of Anti-Marriage Equality advocates is the proposition that preserving the traditional definition of marriage is itself a legitimate state interest. 

Judge Shelby deals with this argument in Kitchen by quoting from Supreme Court precedent to note that "tradition alone cannot form a rational basis for a law": "[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack" [Williams v. Illinois], and “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” [Heller v. Doe].

Responsible Procreation

In Kitchen, the State of Utah advanced the argument that “[t]raditional marriage with its accompanying governmental benefits provides an incentive for opposite-sex couples to commit together to form [] a stable family in which their planned, and especially unplanned, biological children may be raised.”

Judge Shelby dealt with that argument as follows: 

"The State has presented no evidence that the number of opposite-sex couples choosing to marry each other is likely to be affected in any way by the ability of same-sex couples to marry. Indeed, it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts. Both opposite-sex and same-sex couples model the formation of committed, exclusive relationships, and both establish families based on mutual love and support. If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship."

Judge Kern in Bishop expressed similar sentiments:

[T]here is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal."

Optimal Child Rearing

Utah and Oklahoma both advanced arguments the State has an interest in "optimal child rearing" and that a prohibition of same-sex marriages advances this interest. Neither Judge Shelby nor Judge Kern were convinced.

Judge Shelby:

"There is no reason to believe that Amendment 3 has any effect on the choices of couples to have or raise children, whether they are opposite-sex couples or same-sex couples … If anything, the State’s prohibition of same-sex marriage detracts from the State’s goal of promoting optimal environments for children. The State does not contest the Plaintiffs’ assertion that roughly 3,000 children are currently being raised by same-sex couples in Utah. These children are also worthy of the State’s protection, yet Amendment 3 harms them for the same reasons that the Supreme Court [in Windsor] found that DOMA harmed the children of same-sex couples. Amendment 3 'humiliates [] thousands of children now being raised by same-sex couples.' ... Utah’s prohibition of same-sex marriage [also] further injures the children of both opposite-sex and same-sex couples who themselves are gay or lesbian, and who will grow up with the knowledge that the State does not believe they are as capable of creating a family as their heterosexual friends."

Judge Kern, in Bishop: 

"The Court assumes, for purposes of this motion for summary judgment only, that (1) the “ideal” environment for children must include opposite-sex, married, biological parents, and (2) that “promoting”this ideal is a legitimate state interest. Again, however, the question remains whether exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to “moral disapproval” of a same-sex household with children. Smith [Oklahoma] has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will “promote” this “ideal” child-rearing environment."

Proceeding With Caution: Negative Impact

In Kitchen, Utah contended that it has "a legitimate interest in proceeding with caution when considering expanding marriage to encompass same-sex couples." But Judge Shelby ruled that the State was not able to cite any evidence to justify its fears. 

Similarly, in Bishop, the State argued that avoiding a redefinition of marriage that would “necessarily change the institution and could have serious unintended consequences.” Judge Kern dealt with this argument as follows:

"The 'negative impact' argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived 'threats' are to one view of the marriage institution – a view that is bound up in procreation, one morally “ideal” parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral” requirements for any other group of citizens.

"[The Tulsa County Clerk] does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

That last sentence is a perfect way to end this post: The gist and effect of all of the arguments advanced by so-called "traditional marriage" advocates can be summed up as follows:

"Exclusion of [gays and lesbians] from receiving a marriage license ... is insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

Marriage Equality: It's Not About Children

Opponents of marriage equality like to say that prohibiting legal recognition of same-sex marriage is about protecting children.

It’s not. 

It’s fundamentally about two people who love each other (just like heterosexual couples) and who, as citizens of the United States, desire the same social and legal recognition (and accompanying benefits) of their relationship as that traditionally enjoyed by heterosexual couples.

This, I think, was the key element of Judge Robert Shelby’s ruling last month in Kitchen v. Herbert. The State tried to make it about children, but Judge Shelby rejected that approach, as is reflected in the following snippets from his ruling that follow a logical progression toward his conclusion:

• “A person’s choices about marriage implicate the heart of the right to liberty that is protected by the Fourteenth Amendment … 

• “The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry … meaningless ...

• “[H]owever persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view … 

• “Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities …

• “Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition …

• “The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.

• “[T]he Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry [which has a long history of legal precedent] and the right to have that marriage recognized by their government. These rights would be meaningless if the Constitution did not also prevent the government from interfering with the intensely personal choices an individual makes when that person decides to make a solemn commitment to another human being. The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.”

Judge Shelby’s words read very well in the court of public opinion (at least I think so). But they are also, I believe, quite profound from a legal perspective. Why? Because the Supreme Court has long held that a right to marry exists under the U.S. Constitution. But no court – so far as I am aware – prior to Judge Shelby’s ruling had found specifically that there is a legal right to marry someone of one’s own gender, citing the common-sense principle that a constitutional right to marry is meaningless if the government interferes with the very personal choice of whom to marry.

Rational Basis

Most of the legal attacks against marriage equality are linked to what is called the “rational basis test.” If a law discriminates against a class of people, government must have a rational basis for doing so; if it does, then the discrimination is legal; if it doesn’t, the discrimination is unconstitutional. One of the jobs of the courts is to decide what types of discrimination are permissible and what kinds aren’t.

In its arguments in Kitchen v. Herbert, the State of Utah tried, unsuccessfully, to demonstrate that there is a rational basis, based on legitimate public policy goals, for discriminating against gays and lesbians by prohibiting the government from allowing or recognizing same-sex marriages. 

A discussion of these arguments will be left for another day. For present purposes, however, I’d like to quote a couple of passages from Judge Shelby’s ruling as well as the recent ruling of (federal) Judge Terence Kern in which he found that Oklahoma’s ban on same-sex marriage unconstitutional.

Judge Kern: “Civil marriage in Oklahoma does not have any procreative prerequisites. See supra Part VI(C); see also Gill [a federal court of appeals decision addressing same-sex marriage issues] , 699 F. Supp. 2d at 389 (“[T]he ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.”).” 

Judge Shelby: “[H]owever persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite- sex couples who are unable to reproduce or who choose not to have children.”

The inability of gay and lesbian couples to procreate argument is only one of those advanced by the State and “traditional” marriage activists. In one or more subsequent posts, I will look at other arguments, including an emerging pet theory that children, whether born or not, have an inalienable right to opposite-sex parents (one that will be prominently featured at the upcoming “Stand for Marriage” rally).

But before I leave, I want to state that I am the father of 10 children. I love my children. My partner (soon-to-be-husband) loves my children. But my desire to marry the man I love fundamentally has nothing to do with my children. It is about Mark and me and our commitment to and love for each other. Period.

What Fair-Minded Utahns Should Know About "Traditional" Marriage Activists

"[S]upport for gay marriage means supporting the view of children as COMMODITIES FOR PURCHASE, otherwise known as SLAVES."

~ Robert Oscar Lopez

Featured Speaker at the Upcoming “Stand For Marriage” Rally

Recent polls show that an increasing number of Utahns are in favor of marriage equality in our state. An overwhelming percentage of Utahns are now in favor of (at least) civil unions. But, a strident minority of Utahs who wield significant political influence – if not power – in this state have organized a “Stand for Marriage” rally on January 28th, the presumed purpose of which is to influence public opinion.

But fair-minded Utahns should know what kind of people have been asked to speak at this event and some of the things they have said about gay and lesbian people.

These Are Family Values?

One of the featured speakers at the rally is to be Robert Oscar Lopez. I had never heard of the man when I read his name in the paper. But a quick Google search revealed some appalling information about what this man has said about gay people and about their relationships.

I started off the post with one of his quotes. Here are a few more gleaned from GLAAD’s website and elsewhere on the web:

“Gay dads are just two pairs of men running off to live in a world of men, avoiding the hassles and PMS and demands of the women who bear them children.” 

“The scars inflicted on the survivors of slavery are tied to the fact that our ancestors [he claims that, being Puerto Rican, some of his ancestors may have been slaves] were bought, sold, and robbed of a link to our biological roots. This is precisely what gay parenting does to kids through baby farming, adoption on demand, insemination, and surrogacy.” 

“The movement to liberate same-sex love began because people loved each other. Somehow, through convoluted digressions, it has become a tyrannical octopus seeking to control life and death itself. The Rubicon was crossed when the gay movement sided with human trafficking; graft-ridden dirty deals with warlords for orphanages; bio-engineering, baby-farming, and emotional deprivation of innocent children by forcing them to replace a biological parent with a fictional same-sex partner.”

One of the most disgusting of Lopez’ comments concerns Edith Windsor, a woman who was in a committed relationship with another woman for over 40 years whose challenge to DOMA led to last summer’s landmark decision. (Warning, some of the language is extremely crude.)

“[Edith Windsor] went to the Supreme Court and demanded that American taxpayers reward her for having lesbian sex by issuing her a back check for $300,000+. This is what civil marriage is based on. The country pays you to have sex. When it's a man and a woman having sex, it makes sense -- we need men to have sex with women so that we procreate. Why do we need Edith Windsor to have sex with another lady? What is the public interest in their sex life? They have the freedom to engage in sex because after Lawrence v. Texas, anti-sodomy laws have been deemed unconstitutional. So it's not possible for the state to prevent Edith Windsor from jumping into the sack with another sexy senior female and using dildos, dental dams, frottage, or whatever stimulating activities might send them into erotic thrall. They are free to do that. Once they are legally married, however, and they want the state to pay them for this mutually gratifying sexual activity, they are now no longer free to stop having sex.”

Lopez claims to have been raised by two lesbian mothers, but his own published accounts are extremely vague. It also appears that Lopez is one of the stars of an effort by the National Organization for Marriage (see below) to find children of gay couples who can discredit their parents.

How can Utahns who claim to speak for traditional family values associate themselves with such a man?

Brian Brown of NOM: The Other Featured Speaker

The National Organization for Marriage, which was co-founded by Maggie Gallagher and is currently led by Brian Brown, has been fighting marriage equality for years – and losing, at least on the domestic front. They have recently started exporting their hate campaign overseas, most notably in France and Russia.

A simple Google search will yield much information about NOM and Brian Brown.  I would, however, like to include a link to this video produced by the Human Rights Campaign.

Local Speakers

Mary Summerhays, who has organized the Stand for Marriage Rally, offered the following quote to the Deseret News after a recent “rally” at the Golden Corral in Orem, Utah:

"When we redefine marriage law we have said to those children, 'Your rights don't matter anymore. [Federal District Court] Judge [Robert] Shelby has proposed this new experiment that says, 'No, we're not going to use the power of marriage to protect a child's relationship with their mother and father. Instead, we're going to use that power of marriage to alienate that child's relationship with their mother and father.'"

One of the other local speakers will be Utah State Senator Stuart Reid, who published an op-ed in the Salt Lake Tribune just before Christmas. In his editorial, Reid implied very strongly that Shelby’s ruling could lead to civil revolt and violence and concluded his remarks with a very thinly veiled reference to what is really behind his views – animus against gays and lesbians:

“The result of these and other rulings around the nation are in effect massacring the institution of traditional marriage and morality, and no less important, demonstrating disdain against the will of the majority … 

“It is unknown how the majority is going to react in the coming months to the judicial adventurism it is being subjected to, but if its will continues to be contravened and if history is any indicator, all should be sobered by what the future holds for the Republic … 

“Forcing the majority to give up its constitutional rights for judicial activism protecting sexual activities heretofore held to be immoral is not only unfair, but will expose the nation to unrestrained enmity. The judiciary should be much more circumspect over what it is unleashing.”

Circling the Wagons

There are many, many people in this State who are gay or lesbian, and there are far more who are family members of such people. Fathers. Mothers. Brothers. Sisters. Grandparents. Aunts. Uncles. Sons. Daughters. Most LGBT people in Utah come from Mormon families – families who are increasingly circling the wagons around their gay and lesbian children.

The people who are speaking at the Celebration of Marriage Rally – though wrapping themselves in the flag and religion - do not represent Utah values. They are launching a direct attack on the extended families of Utah - many of whom are faithful Mormons - that love their gay and lesbian children and are also offending the sensibilities of fair-minded Utahns who are put off by their language, tactics and views of extremists.

I choose to believe that the more Utahns know about what these activists are saying and doing, the more public opinion will continue to shift away from fear and towards love.