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February 11, 2014
People Get Arrested, the Opposition Reasons Poorly, and There's Something Governor Herbert Could Do to Help
I assert my religious freedom as constituting the right to worship as I please, while respecting others' legitimate rights; the right to preach whatever gospel I embrace; and immunity from being forced to worship in the manner of the state's or majority's choosing. Despite my personal religious views on sexual morality, this freedom is completely compatible with the presence of gays in my workplace and my apartment building.
I've spilled a great deal of virtual ink lately on the related subjects of same-sex marriage, non-discrimination in housing and employment, and the small but loud fraction of Utah Mormons who think it's proper to enforce all of God's commandments in secular law. I won't rehash that today. (You can find it here.) Nor will I belabor the point that I am unfit for the Utah Legislature. Instead, let's look at two items in yesterday's newspapers. To be ecumenical, we'll take one piece from the Salt Lake Tribune and one from the Deseret News. Then I'll describe something Governor Gary Herbert could to relieve a difficult situation.
It Didn't Help
Yesterday, the Utah State Police arrested 13 protestors at the Utah State Capitol. The charges were typical protestor misdemeanors, disorderly conduct and disturbing a public meeting. If they persisted in blocking the entrance to a meeting long enough to get arrested, we may safely assume that they intended and expected to be arrested. It was an act of civil disobedience in protest of the Utah Senate's refusal to consider SB 100, a bill to outlaw discrimination in housing and employment on the basis of sexual orientation and gender identity.
Remember how, just last week, Republican leadership was saying that they needed to postpone consideration of any legislation bearing on gay and lesbian issues, for fear that some Republican legislators would say stupid, bigoted things (my words), which would negatively influence Utah's court appeal in the matter of same-sex marriage? I suspect that was just the most convenient excuse for most, but in any case I have two lingering questions for these sages.
First, did they think nothing would happen, if they themselves did nothing, despite majority opinion in favor of such legislation? If so, it was a ridiculous expectation.
Second, would dogmatic bigots saying bigoted things in a legislative debate, where cooler heads and better minds could publicly rebut them, really be worse than the message they chose to send? It's a very clear message to the nation, when a legislature which not only refuses to consider reasonable legislation supported by most Utahns, but also decides its fate in a closed meeting. (Is the latter even legal under GRAMA?) We may as well put it up in neon lights now: the Utah state government is willfully dysfunctional in these matters. We're fairly begging federal judges to step in and save us from ourselves.
Arresting people may be necessary, but it only makes the problem worse.
Local libertarian author Connor Boyack's op/ed in the Deseret News illustrates the flaws in some popular arguments against SB 100 and similar legislation. He helpfully advocates the flawed arguments more clearly than most, as we would expect from a seasoned writer.
Boyack argues that the anti-discrimination proposal violates property rights. He cites numerous cases in other states, in which business owners are being prosecuted for refusing to photograph, host, or provide flowers or wedding cakes for same-sex marriages. I would cite economic freedom, not property rights, but I agree with Boyack that they are improper and unjust.
I'm pleased that he at least avoids arguing that imposing one's religion on others by force of law is a proper expression of religious freedom. We hear that one a lot here in Utah County.
Boyack begins with the idea that a property owner -- including a business owner -- has the right to do business or not with whomever she chooses. Then he moves quickly and hypothetically to the extreme toward which breaching that right tends: a situation in which customers would be prosecuted for failing to patronize businesses run by gays and lesbians. He's not saying we're there yet, just that the tendency is in that direction.
The most obvious flaw in his reasoning about the present proposal is that the legislation has nothing to do with such relative minutiae as photography and wedding venues. It deals with matters far more fundamental than wedding cakes: lodging and employment.
Less obvious, perhaps, but more essential, is the other major flaw in his reasoning. He says, "Individuals either have property rights or they do not. It is not logical to claim that individuals have such rights so long as they use their property . . . in ways that are socially acceptable and approved by others."
On the contrary, it is perfectly logical to argue this, within some reasonable limits. None of our inalienable rights is absolute. If my property rights were absolute, my neighbors' property rights would be severely diminished. I would have the absolute right to conduct any business or activity on my property I wanted, but let's be gentle and say any legal activity. I could locate a paper mill or a small cattle feed lot at the very edge of my neighbor's lawn. Quality of life and property values in the neighborhood would plunge.
No, in society we agree to balance our property rights against others' property rights. This limits everyone's rights, but we understand that this is necessary to preserve those rights. Reasonable zoning and nuisance laws reflect this sort of protective balance.
Furthermore, we must weigh property rights against other rights, such as the right to life. If my property rights as a shopkeeper were absolute -- if they trumped others' rights to life and due process of law -- I would be justified in shooting a six-year-old in the back of the head as he left my store in the act of shoplifting a 49-cent candy bar (my property).
We could have a fruitful discussion of all this, if we could turn down the heat and frame the question reasonably. As for me . . .
My assessment of the matter with the wedding cakes is that the LGBT customers' economic rights do not outweigh the baker's economic freedom. I don't much care whether the baker is motivated by religious beliefs or something else, even if it's a random, foolish stereotype. If he were the proprietor of the only grocery store within 100 miiles and were refusing to let gays buy any groceries, I would take a different view.
My assessment of the housing and employment matters is that they involve substantial threats to rights which outweigh the landlord's or employer's economic freedom. They do not trump proper religious freedom, so we reasonably exempt the home and relevant advocacy organizations. But they do trump the perverted religious freedom which asserts its right to force people with whom you disagree to live and work in some community or workplace other than your own.
I assert my religious freedom as constituting the right to worship as I please, while respecting others' legitimate rights; the right to preach whatever gospel I embrace; and immunity from being forced to worship in the manner of the state's or majority's choosing. Despite my personal religious views on sexual morality, this freedom is completely compatible with the presence of gays in my workplace and my apartment building.
Please Mention This to the Governor
I propose a compromise. It involves taking the other side's concern for influencing the court appeal seriously, even if it's really just a handy excuse for many of them. I can imagine this compromise being within the repertoire of the same wise governor who helped us in an indirectly related situation two years ago. The Utah Legislature was determined to force exploration of human reproductive biology out of the public school classroom and into the hallways and parking lots, where it is limited to ad hoc laboratory experiments. Governor Gary Herbert vetoed the legislation, thus solidifying the otherwise lukewarm support of this Republican state delegate.
Here's what Governor Herbert could do today. He could state publicly and for the record that he will call the Utah Legislature into a special session to consider SB 110, just as soon as the court appeals are resolved. Then, of course, he would have to keep his promise.
It would be an admirable act of leadership. It wouldn't thrill some legislators, but it would send a message to the federal judiciary that, yes, Utah is capable of governing itself in difficult matters.
February 5, 2014
I Am Unfit for the Utah Legislature
Not that this is news. I just wouldn't fit in. Lately, this becomes clearer every day.
Every so often, some kind soul or other tells me I should run for public office. I've helped other people do that in Utah, Idaho, and New York, and some of them won. So the news isn't all bad; I probably don't have some sort of reverse Midas touch, where everything I touch turns to something less shiny than gold.
The other day someone said I should run for the Utah Legislature. I smiled wryly and shook my head, as I said, "Thank you, but I'm not electable." Now I'm thinking, that kind person and his kind thought deserve an expanded answer.
If I ran, I'd have to run as a Republican. I'd have no credibility as a Democrat, with myself or anyone else, and the Utah Republican Party itself is so far right that no fringe third party appeals to me at all. So I'm just talking about Republicans here. What I say below may be unfair to some Republican legislators; it is to Steve Urquhart, I know. If it is to others, let them prove it by standing up to their peers, their leadership, and their party.
When I compare myself to most of the candidates who get elected and serve in the legislature, it becomes abundantly clear that I am unfit for the job. In general, the problem is that I believe too many wrong things and disbelieve too many, ahem, right ones. As I multiply examples below, you'll see that SB 100 and the subject of non-discrimination generally (on the basis of sexual orientation or gender identity) is prominent in my thinking right now. It's an extraordinarily discerning litmus test, where Mormon Utah Republicans are concerned. It tells us where people land on the freedom-versus-using-my-power-to-compel-universal-righteousness spectrum, which sometimes seems to be the primary axis of Utah politics.
Beyond the moral principles on which society generally agrees and finds suitable for regulation by law, I believe that sinners as I define them and sinners as you define them deserve political, economic, and religious freedom. I believe that a person's violation of someone else's sectarian principles (or his own) should not jeopardize the roof over his head or his means of earning his daily bread, assuming he doesn't work for an organization with a primary mission to promote those principles. With this in mind, look at Utah Senate President Wayne Niederhauser's handling of SB 100. If he's fit for his office, I am most assuredly unfit for any role in the Utah Legislature.
I'm a Mormon, and I'm no fan of socialism in any of its variations. I nevertheless believe that the greatest and most constant threat to free and healthy society and good government in Utah is the subset of Mormons who think the law is a suitable tool for imposing their principles on all people -- and who think that this is somehow a proper exercise of their religious freedom. (At least our methods are different from the Taliban's, even if our mindset on these points is similar.) Therefore, I am unfit for the Utah Legislature.
I don't think all goverment is evil; I think excessive government is evil. I don't think all taxes or even all tax increases are evil; I think excessive taxation is evil. On both counts, I am unfit to run as a Republican for the Utah Legislature.
I believe that Utah's Orwellian Truth-in-Taxation law is strangling local governments, but I don't believe that is a good thing. So I am unfit for the Utah Legislature.
While in general I think a Republican majority is a far better thing than a Democrat majority, I don't think one-party government with perpetual supermajorities is a healthy thing. I am unfit for the Utah Legislature.
For personal, religious reasons, I abstain from alcohol, but I don't see why my religious principles should be binding on anyone else. Saying this during jury selection got me four weeks of jury duty in New York. Thinking it makes me unfit for the Utah Legislature.
As it happens, I am unfit for more than the Utah Legislature. For example, I believe that compelling businesses to be closed on Sunday is tyranny -- or government overreach, to use a term people like to use on me sometimes, when they're trying to be civil. I also believe that other Sabbaths, notably Friday and Saturday, and their adherents deserve equal treatment under the law. So I might be unfit for residency in Highland, if I lived a mile or two further north. I also believe that marriage is properly defined as the union of one man and one woman, but I think the US Supreme Court was right to strike down the federal Defense of Marriage Act, as an unconstitutional federal intrusion into a prerogative of the states. I believe abortion to be morally wrong in most circumstances, and I believe Roe v. Wade was a flimsy, irresponsible piece of jurisprudence. But I don't necessarily believe that any law banning abortion is automatically a good thing. Worst of all, I campaigned for US Senator Orrin Hatch in the last two or three elections. For all these reasons, I am unworthy to be considered a "real conservative" in Utah, even if I am a big fan of Senator Mike Lee.
But back to my primary list . . .
At a theological level, I believe that freedom exists to allow people to make right choices. But I don't believe we should make wrong choices illegal whenever we can get away with it. I am unfit for the Utah Legislature.
We're back to SB 100 again . . .
As I wrote the other day, even if I believe and sometimes preach that one aspect of their lifestyle is morally wrong, I value my gay and transgender neighbors, relatives, and colleagues, friends, and fellow believers. "If [that] incurs the wrath of the God you worship," wrote I, "I am unmoved. The God I worship understands that the worth of a human soul . . . is far greater than the sum of its actual or human-perceived sins." This makes me completely unfit for the Utah Legislature.
I do not have the intellect or the expertise to read a clear statement from the LDS Church, endorsing a non-discrimination law in Salt Lake City, and argue that it means exactly the opposite of what it says. When I see the Church praising the ordinance for regarding "the right of people to have a roof over their heads and the right to work without being discriminated against," and for granting "common-sense rights that should be available to everyone, while safeguarding the crucial rights of religious organizations," I cannot draw the conclusion that the Church clearly was speaking of rights which exist only within the city limits of Salt Lake City. When I read that the LDS Church says it supports the Salt Lake City ordinance "because it is fair and reasonable and does not do violence to the institution of marriage," I have not the power to conclude that what the Church really means is that it only supports the ordinance as a desperate measure to prevent something worse from happening, and that treating gays as full-fledged humans will inevitably lead to the legalization of gay marriage. Lacking these gifts for spin and self-deception, which so many others clearly have, I am unfit for the Utah Legislature.
I pride myself on a degree of intellectual flexibility, among other things, but I cannot bring myself to make this argument, even privately: "My Church is true, which means I'm right, and my Church leaders are saying what they have to say, not what they really think, and relying on us to move forward despite their actual words." I am wholly unfit for the Utah Legislature.
When State Senator Stuart Reid stands up at a rally and say, "If a moral society is to be preserved, we must organize and petition all branches of government and other leaders and rulers to protect the moral well-being of the many," my skin crawls, and I want to lecture him on the proper, limited role of government, to say nothing of the privileged place of freedom in our civic morality. Obviously, I am unworthy to be his peer in the Utah Legislature.
Besides all that, I hate fund-raising, and I have to work full-time to make a living. I shall have to be content to be a gadfly and a curmudgeon.
January 31, 2014
Rights and Rites and Right and the Right: Part Five
Whatever happens in the tempetuous saga of marriage and the law, we must fortify a defensible position which allows us to protect religious freedom. We must counter the work of bullies and opportunists. And we must forsake a popular definition of religious freedom which doesn't even make sense.
Most of the people who favor same-sex marriage are decent, reasonable human beings, but, like any group, this one includes a few bullies and opportunists. The bullies want to force everyone to believe the right things, or at least act as if they believe. It's not enough for them if two gay people can get a marriage license and tie the knot. They insist that everyone cheer the happy couple and never utter a dissenting syllable -- and, ideally, never think a dissenting thought. For their part, the opportunists want to use the dynamic state of our laws and morals as a opportunity to legalize certain other lifestyles and, if possible, remove their social stigma. Polygamy comes to mind. I'll reluctantly mention some others below.
The legalization of gay marriage nationwide may be inevitable, likely, or just a strong possibility. I'm comfortable with the idea of opposing it now politically, within limits, but we should also prepare a strong fall-back position.
Meanwhile, no matter what happens, one of the best things we who favor the traditional definition of marriage can do is to have the best traditional marriages we can, raise the best children we can, and teach those children by word and deed to be active, intelligent, responsible citizens of a free nation.
Let us preserve a healthy respect for freedom, remembering that God's will, as we variously understand it, does not constitute sufficient grounds for preserving or creating a law. Within these bounds, we should feel free to oppose changes in the legal definition of marriage.
I previously noted the circularity of my view: We should actively participate in our public mechanism for measuring society's moral consensus -- our government, at various levels -- with respect to this issue, until we see that the requisite general agreement on the definition of marriage no longer exists in our state or nation. At that point, even if we're still in the majority, we must cease to use the law to impose and promote our view in this thing. In deference to others' rights and freedoms, we must thereafter confine our efforts to persuasion and example. If a general consensus still exists, but our legitimate institutions through legitimate processes determine that gays' right to marry is a fundamental right, we must similarly limit ourselves. We protect fundamental rights even from very large majorities or cease to be Americans.
I readily acknowledge a risk here. We could freely choose self-destruction as a civilization by prioritizing freedom over state enforcement of the will of God as a majority (or someone else) understands it. But that's only if our other means for promoting moral law (e.g. preaching and persuasion) fail. I think we're certain to self-destruct, and more quickly, if we allow or require our government to act as the arm of whatever God we worship.
Risk and crcularity notwithstanding, this is my present view. I wish I knew how to describe it more simply. Reading my first post in this series may help.
I'm comfortable with the idea that you may disagree. I'd love to hear your reasoning.
Meanwhile, I support the Utah Attorney General's effort to defend Utah's constitutional definition of marriage (Amendment 3) in the federal courts. Not only is this part of the established and legitimate process of measuring society's moral consensus. It also is a defense of the most crucial and legitimate part of that mechanism: the people's vote.
In some other states, legislatures voted, then the people voted. When the result of that process was the legalization of same-sex marriage, we might think the people were unwise, but we can't say the process was illegitimate.
In Utah, by contrast, a federal district judge unilaterally ruled Amendment 3 unconstitutional. While it's true that the judiciary is part of our formal mechanism for measuring the moral consensus in society, this judge didn't want to be part of the mechanism. He wanted to be the whole mechanism. Otherwise, he would have immediately stayed his ruling, pending the inevitable appeal, as one of his more respectful colleagues
in Oklahoma did later. Then we might simply have said, "This is our process. We have to let it work." Instead, Utah had to petition the US Supreme Court to stay the lower judge's ruling.
Utah has hired a high-powered constitutional lawyer from the DC area, Gene Schaerr, to lead its case. As a taxpayer (among other things), I'm okay with that. I'm also enjoying a small-world moment. The summer before last, I was a guest in his home for a few days. I won't claim that we're close friends, but I did find him and his family to be very gracious and kind, and I savored the intelligent conversation over breakfast. I'd love to have more of that conversation, during and after his new adventure. I wonder what we'd find to talk about.
There has been much hand-wringing, in places ranging from the New York Times to the Salt Lake Tribune, because Schaerr told his colleagues that he considers his role in this to be a family and religious duty. These folks don't think that he'll appear before panels of judges, declaring the will of God and calling them to repentance. That would be legal malpractice, among other things, and I would want Utah's money back.
Their actual objection is to people who make political or legal arguments rooted in religious convictions. This hostility to religion is toxic to good government, but I can't say that the animus against religion and religious people is altogether misguided. Look how may Utahns, for example, demand that their sectarian moral (religious) principles be codified in the law. See how many Utahns only refer to freedom in these debates when they're insisting that the presence of people who think differently violates their own religious freedom. I would insist that religious people belong in the public square in any case, but I would rather the anti-religious crowd were completely unjustified in their fears.
When Schaerr argues in the federal courts, he will not argue that homosexuality is an offense before God or that licensing same-sex marriage will lead us inexorably to the fate of Sodom and Gomorrah. He's not an idiot. He knows the courtroom isn't a church. He will likely make a constitutional and procedural argument about respecting the duly determined will of the people of the State of Utah. He will likely oppose the assertion that the Fifth and Fourteenth Amendments' language about equal protection requires states to sanction non-traditional marriages. He may question the federal claim of jurisdiction over marriage. He will argue in the realm of case law and legal philosophy. He will not mock the people and our institutions by channeling Moses or (a bonus for you Mormons out there) Abinadi.
If the higher courts uphold the district judges' rulings, I think we must concede that the legitimate processes have determined there is no longer the moral consensus in American society to support a ban on same-sex marriage. I won't be happy about that. I'd rather it were decided by the legislative process, not the judiciary, and at the state level, not the federal. But the federal judiciary is a part of our mechanism.
If that happens, what are we to do?
The State's Interest in Marriage (Beware the Opportunists)
Some who oppose same-sex marriage want to remove the state (meaning government generally) from marriage, to prevent the state sanctioning marriages which offend them. But I still see an important state role in regulating marriage.
I wrote last time that the strongest case for the state's interest in traditional marriage is the welfare of children and the resulting long-term health and stability of society. It is more than the permanent union of two people who love each other. Losing that vision, as we mostly have, invites more grief and destruction than same-sex marriage itself could ever cause.
That loss leaves us with a narrower state interest in marriage. Difficult as it may be, if we sanction same-sex marriage, we need to find a way to keep polygamy and other even less savory lifestyles illegal -- at least so long as there is a general (not necessarily universal) moral consensus against them. We also need to keep reasonable age limits for marriage, with and without parental consent, to protect as many young people as we can.
None of this will be automatic. Depending on the zeal, the haste, and the particular legal reasoning with which we redefine marriage, we could lose our legal grounds for prohibiting polygamy.
We could lose a lot more. I'm sorry even to mention it, but we could lose prohibitions on bestiality. (Don't google it. Use a dictionary.) We could forfeit the legal protection a gay twelve-year-old boy should have against his addled parents marrying him off to the 53-year-old local chapter president of the Man-Boy Love Association. (Remember them?)
So let's not get the state out of marriage altogether.
There are too many of those opportunists I mentioned in the beginning, and some of them are predators.
Looking Ahead (Beware of Bullies)
Those who wish to reinstate a traditional view of marriage in the law, once it is lost, will have to confine themselves to persuasion and example, and they will have a huge task in trying to persuade the generality of society. It's hard to put legally-dispensed toothpaste back into a tube.
However, the prospects are not all grim. Those who choose traditional marriage will still be allowed it. One only rarely hears someone advocate the wholesale abolition of marriage, and no credible voice for gay marriage proposes to limit it to gays. I can live my personal religious principles just as well in a society which allows gay marriage as I can in a society which bans it. I am more concerned with freedom in other senses, which is threatened by the bullies I mentioned above.
Religious freedom can be adequately protected in a society where same-sex marriage is recognized, but there is no guarantee that it will be. We should be bending more effort than we are in this direction. If we are to have same-sex marriage in our society, we must insure that it is no crime -- "hate speech" or otherwise -- to promote the traditional view, even to the point of preaching publicly that someone's lifestyle is evil.
We must guarantee churches, chaplains, and clergy the right to refuse to marry anyone for any reason; we must not use law to force a church, chaplain, or priest to perform gay marriages as the price of performing any marriages at all. Similarly, if the Catholic Church does not wish to extend its adoption services to same-sex couples, the law should not force them out of the adoption business, as it did in Massachusetts.
As a matter of economic freedom as much as any other kind, we must not force people, businesses, or institutions who support or participate in traditional weddings to provide their services to same-sex weddings, if they do not wish to. If Joe's Photo Shop wishes to confine its wedding services to traditional couples, and Mary's bakery wishes to decline to make wedding cakes for same-sex couples, they must be free to do this without the threat of civil or criminal penalty. (This only contradicts my position on non-discrimination in housing and employment if you value the right to purchase a wedding cake at the bakery of your choice as highly as the right to live in the city of your choice.)
If you're paying attention to the news in this decade, or even yesterday, you can see that we already have a problem or two. In this realm of policy there are more bullies than opportunists.
If we are vigilant and wise, we should be able to defend religious freedom as I have described it here. We have better tools and stronger traditions here than in Europe, where they're struggling in that respect.
Some people argue, these days, that my religious freedom is infringed by having people in my workplace and my community who disagree with me and live accordingly. T
hink about that: If my religious freedom is contingent upon my ability to infringe upon your religious freedom, yours must include the ability to infringe mine. So neither of us is free. So that must not be how religious freedom works.
If we're to be effective, we must not waste any time, energy, or credibility defending an odd, contradictory, indefensible notion of religion freedom. We'd best occupy ourselves with the real thing.
January 28, 2014
Rights and Rites and Right and the Right: Part Four
Some folks apparently think that the only questions pertaining to society's laws about marriage are, What is the will of God?, and its corollary, How can we best use our political power at this moment to enforce the will of God by law? I don't object to the first question, but its corollary is the stuff of tyrants. Other questions must be asked.
We have arrived at the question of same-sex marriage.
However -- and this is crucial -- in a free, pluralistic society it cannot be a single question. It must be multiple questions. Our prior discussion here has prepared us to separate these questions and consider the implications of each.
In the first part I identified the core of our American civic morality as "life, liberty, and the pursuit of happiness." I explained in theoretical terms how these long-standing American principles require us to consider the legal/political question separately from the moral/religious question and what I will call the sociological question. This is the key point: In a free society our conviction that a thing is good or bad for individuals or society, on moral or other grounds, does not automatically tell us whether it should be legal or illegal under the law.
In the second part I offered a contemporary example of an issue where law and majority morality urgently need to diverge: reasonable legislation to prohibit discrimination in housing and employment on the basis of sexual orientation and gender identity.
In the third part I invited my some of my friends and fellow partisans out to the woodshed for a verbal intervention. I argued, essentially, that thinking the moral question is the only question, or that the moral answer is automatically the answer to the other questions, leads many good people to harm their own causes. I used strong words where weaker words have failed in the past. On good days, I said, the zealots are fighting the right battle on the wrong fronts, with the wrong weapons. On bad days they are fighting on the wrong side. I said, "You think you are defending our freedom. . . . You could and should be among freedom's ablest defenders. Instead, you are writing Amerian freedom's death sentence."
Bear in mind that I am telling you what I presently think and believe. This has evolved over the years and may yet do so. However, the more closely we approach core principles, the more stable some things feel.
In any case, I am not necessarily telling you what to think. If I could tell you anything, it would be how to think, to this extent: Separate the questions. Emphasize freedom, and I don't mean just yours. Then our ongoing debates will be on point and fruitful, as we consider where to draw lines according to American principles and how to balance competing rights and liberties.
The Moral Question
Many people are certain they know the will of God concerning marriage, including same-sex marriage. They're on different sides of the issue, and they defend their positions passionately and sometimes intelligently. Some of them are probably right, though for civic purposes that matters less in a free society than it might elsewhere.
As a moral or religious matter, my own view is a conventional Mormon one: Marriage is the union of one man and one woman, unless God commands his people (for his own purposes) to practice polygamy for a period. (I am glad not to live in such a period.) Believing marriage to be eternal but having not yet been to the afterlife, I cannot say precisely how these things might shake out there, but I have some doubts as to the doctrinal value of certain widely-accepted assumptions and speculations among Mormons.
As a matter of religious principle, I believe that all sexual activity outside the lawful marriage of a man and a woman is a violation of moral law. But here's where we separate the questions. I cannot make others' moral choices for them, even by the force of law. Nor do I think premarital or extramarital sex should be punished as a crime. Nor do I presume to know how to, or have the right to, force people to change what they are or have chosen to be. I claim no right or ability to pass judgment on the relative influence of nature, nurture, and choice in any individual life. And I have some compassion for men and women and who, by birth, nurture, or (I think more rarely) personal choice, or some combination of these, are drawn to a long-term, committed, romantic relationship with someone of the same gender, and who ache for the same opportunities, protection, and validation society traditionally affords to heterosexual couples.
When our accepted mechanism for measuring the moral consensus of the people (see the first post) determines that there is no longer is general consensus about whether gays should be allowed to marry each other, I will come to a conclusion to which I might not come in a much different society. In that context, despite my sense of sexual morality, and because freedom is also a key pillar of my personal morality and my faith, I will be unable to argue against some sort of civil union, for the legal protection, the formalization of commitment, and other benefits that it offers non-traditional couples.
But I'm not ready to call it marriage. I still think that word is taken.
The Sociological Question, and Marriage as a Word with Meaning
Marriage is a word and concept with a long-established meaning that has survived millennia of human history, while many other things haven't. I don't claim the right, and I don't acknowledge any given generation's right, to redefine marriage by fiat. I also doubt our ability to foresee the long-term impact on men, women, children, and society at large, if we assume the authority to redefine marriage.
Marriage is more than society's acknowledgement of two consenting adults' commitment to each other. It is the creation of a family unit into which children can come with the greatest likelihood that they will be happy and successful in life, and that they will become productive, responsible members of society. The proof is fairly conclusive -- I admit, in the eye of the beholder -- that children and society fare better when as many children as possible are raised by their biological parents, who live together and are married to each other. I know that this system breaks down in many instances, sometimes tragically. But we start with the ideal and make individual adjustments as necessary. Exceptions, even frequent exceptions, do not justify discarding the ideal.
In short, I am saying that marriage is much more than long-term coupling, and humanity is far less than omniscient.
I will go one step further: If the redefinition of marriage puts civilization itself at stake -- as it may -- I think redefining it to include gay couples is a much smaller problem than the loss of focus on the child. Here we come full-circle: When we jettison the sense that state's interest in marriage is to promote the welfare of children, and by so doing to promote the welfare of civil society, we forfeit most of our ability to explain logically why marriage should be confined to its traditional boundaries.
The religious question considers religious principles -- the will of God, as we variously understand it. What I call the sociological question embraces what we learn from study and experience, about whether a thing is particularly harmful or beneficial to society. As to the child-centered meaning of marriage, the sociological question is readily answered, as I have suggested. Since we have mostly surrendered that understanding of marriage, however, we are left to focus on the sociological question of same-sex marriage itself.
We don't yet have solid data on gay marriage or children raised by married gay adults, or society when these things are widely permitted. Worse, these issues are so politically fraught that we will reasonably doubt the objectivity of whatever research might trickle in. So the sociological question exists, but the answer seems likely to be unavailable for some time to come.
The Legal/Political Question
Even if God and I happen to agree on the definition of marriage, my religious or moral conviction does not by itself justify using the force of law to impose that conviction on everyone. Religious freedom is another central tenet of my religion and a pillar of our shared American civic morality. Religious freedom includes my freedom to practice my religion and your freedom not to practice my religion, and vice versa. Even if a majority in a city, state, or nation is convinced that same-sex marriage is an abomination, this would have to be a more or less generally-accepted principle for government to be justified in enforcing it on that basis alone, with new or existing law.
It's a funny thing to say on the day of President Obama's sixth State of the Union address, but in America we prefer our people to be free and our rulers not to think themselves demigods.
Even general acceptance of a principle on religious or sociological grounds might not be enough to justify its enforcement. When we value freedom highly or judge a matter to involve a basic human right, we typically protect it against the will even of an overwhelming majority.
I have not just said that it is inappropriate for defenders of the traditional definition of marriage to engage in political acts to advocate or preserve that definition in the law. I don't feel obligated to be silent or to surrender my views, simply because others disagree. I think it's perfectly legitimate for me and a majority of Utahns (not to mention Californians) to vote for a traditional definition of marriage. So, if you put it to a vote, I will vote against expanding the legal definition of marriage to include any situation other than the union of one man and one woman. I voted for Amendment 3 to the Utah Constitution. I would vote for it again. These votes and other political actions are part of my personal participation in the established processes of determining the general moral will of the people. (See the first post.)
However, once I see that our official means of measuring moral consensus (see the first post) indicates convincingly that there is no general consensus that marriage should be limited to the traditional definition, I cannot argue for the preservation or imposition of laws to that effect.
My Circularity, Etc.
Judging the point when we no longer have sufficient consensus in a matter is a bit fuzzy and arbitrary. Moreover, you probably have detected a certain circularity in my reasoning. If you need things to be straightforward and simple, you may have come to the wrong century.
I'm free to participate in the political process, which measures the general moral consensus, but if that general moral consensus does not include my views, I'm not free , to use the law to impose them. In other words, I freely participate in the mechanism which determines whether it is proper for me to participate in a particular way. I don't see a way to avoid this circularity, if we are to have laws at all, but also limit our governments and generally be free.
This is only a concern where some sort of majority (local, national, popular, legislative, judicial, etc.) is in a position to impose its moral will on society, when its will -- despite the majority -- is not generally accepted in society.
Again, I'm not saying that the zealots who rally in defense of traditional marriage (which technically is not threatened; only the traditional definition is) should shut up, go home, and stay off the Internet. I am saying that they should be a great deal more cautious in their efforts and more circumspect in their speech. I'm saying they should respect the possibility that we are at or near the point where there is no longer sufficient justification to impose majority morals on society in this matter -- which means they are, at best, dancing on the line between legitimate law and moral tyranny.
One of my new year's resolutions this year is to make my short blog posts shorter and my long blog posts shorter, too. My far outer limit is 2000 words, and we're there. I'll have to talk next time about what we (in various senses of we) can and should do going forward.
January 24, 2014
Rights and Rights and Right and the Right: Part Three
If the shoe doesn't fit, don't wear it. If it does, let's take a little walk out back, after I tell you about my possible man-crush.
This discussion began with some theory two posts ago. Today's offering is a continuation of yesterday's practical discussion. If anything here puzzles you or troubles you, please consult one or both of the previous posts.
I may have a man crush on American Fork Police Chief Lance Call.
In my experience he is intelligent, articulate, sensible, kind, and not the least bit naive. He is practically unflappable. He is a gifted leader and administrator. If all law enforcement officers were like him, or at least working to become like him, the libertarians and the leftists would have a lot less about which to complain.
I've had several opportunities to work with him over the past several years, and I've watched him at work on other occasions, when I've had the chance. For all that, I have seen him visibly angry exactly once, and thereby hangs a tale.
Litter and Hate Speech
A few years ago, there was a city council hearing, then a scheduled vote in the regular meeting, on proposed ordinances to prohibit discrimation in employment and housing in American Fork on the basis of actual or perceived sexual orientation or gender identity. The ordinances were carefully modeled after those the LDS Church endorsed in Salt Lake City, with some reasonable modifications to suit a much smaller city. I was one of many who spoke at the hearing; I spoke in favor of the ordinances.
Opponents won the day. When one of three supporters on the five-person city council backed down, the items were tabled, rather than being put to a vote where they would be defeated. I stayed in the meeting for another item or two on the agenda, after most of the crowd had left the meeting. Finally, I went downstairs and left the building. Outside City Hall I ran into Chief Call, who had been escorting known proponents of the measures from the building to their cars, because he and they had some concerns for their personal safety in the lingering crowd.
Then he showed me what had angered him most. It was a full-page flier with a short verse from Leviticus in large print, suggesting that gays should be killed. Someone had left it on every windshield in the area. Of course, it was anonymous, because some zealots think they can stand up righteously for their views behind a cloak of invisibility. They think that hate speech and even littering are justified, if they promote strongly-held moral views. I'm right, and God's on my side, so all is permitted, you see.
If that last sentence doesn't make your skin crawl, I have grievously overestimated my readers. But back to our story.
The Chief had picked up some of the litter himself, while on escort duty.
It Was a Mormon
What is not generally known, I think, is that the Bible verse the flier quoted was not from the King James Version, or from the American Standard or Revised Standard or Good News Bible. It was from what we Mormons call the Joseph Smith Translation (JST), where the wording of that verse is subtly different and distinctive. The JST is not a translation in the typical sense, but is Joseph Smith's prophetic revision and slight expansion of the King James text. (Whether Joseph had the right to tinker with scripture in that manner depends on whether he was a divinely-called prophet or a blasphemous fraud, which topic is well beyond the scope of this discussion, but I vote with my study . . .)
Like some other Mormons, I routinely use the JST to illuminate my study of the King James Bible. Hardly any non-Mormon uses it.
So the hateful, anonymous litterbug was almost certainly a Mormon and was a more careful student of scripture than some. Yet this Mormon bigot is not well-informed in doctrinal terms. I can tell this by the advocacy of a statute from the Law of Moses, which Mormons and other Christians generally believe to have been fulfilled and superseded by a higher, less bloody law. In other words, whether the quoted verse is scripture or not, in a Christian view it's been irrelevant for about 2000 years.
If anyone cares enough what I think to wonder why I feel compelled to defend and extend the rights of people whose lifestyle I believe offends God in one respect, this story begins to illustrate it. The zealots who share my belief in a particular moral principle seem perfectly willing to use un-Christian and un-American means to advance their cause through politics and the force of law -- not to mention, in my story, outright verbal thuggery.
When they do that, I am compelled to oppose them and defend their victims on the basis of my own Christian and American principles -- and humane principles.
I was summoned recently by e-mail, Facebook, snail mail, and robocall to "urgent" meetings and rallies "in defense of traditional marriage." For some reason folks can't even identify the issue correctly. No one is attempting to ban traditional marriage. Calling the present movement a defense of traditional marriage is like claiming that Wendy's introduction of a vanilla frosty -- disparaged by some as "not a real frosty" -- somehow limits one's right to enjoy the traditional chocolate frosty. They didn't remove the chocolate one from the menu.
I couldn't go to any of the meetings, and I wouldn't have gone anyway. I simply read reports of them and talked to people who attended. To be sure, what is at stake is infinitely more consequential than a frozen dessert. But when people savagely quote the Old Testament on anonymous fliers, toss the word secession around at political meetings, speak of government as the primary means of safeguarding a nation's morality, or willfully blur the line between political rally and religious revival -- for some reason, especially when they do it in the name of something that vaguely resembles my own religion -- I am moved to be elsewhere.
Harming Your Own Cause
My zealot friends -- and some of you are genuine and treasured friends, in far more than the Facebook sense -- we've arrived at the woodshed. Did I mention we were headed to the woodshed? Let's have a little woodshed intervention, but with words instead of actual sticks.
As valid as your religious convictions may be, you have damaged your own cause by approaching gay marriage, immigration, and numerous other current and recent issues as if the purpose of civil law were to incorporate and enforce your particular set of religious beliefs, and as if your church's doctrine required a given stance on a given political issue.
It's not just that you have misspent time, energy, and money which might have advanced your cause on other fronts. You have done actual harm. By acting as if the force of law were a legitimate tool to impose moral principles which are no longer the subject of general agreement in our society, you have discredited people who support the same causes through more appropriate and more credible means.
It gets worse. By your untempered words, your zeal to couch public political debates in sectarian religious language, and your willingness to use the force of law where you shouldn't, you have pushed many people who agree with you in some principles to the other side in practice. Now we actively oppose you, or at least feel compelled to disassociate ourselves from you and your message and to defend those whom you attack, for the continuing defense of our principles.
You think you are defending our freedom -- even defending society itself from the gathering wrath of God. You could and should be among freedom's ablest defenders. Instead, you are writing American freedom's death sentence, by disregarding others' freedom, by discrediting by association freedom's other defenders in our politics, and by disdaining and disparaging our institutions and processes every bit as much as the left does, because you don't happen to like some of the present results.
On good days you are compromising civilization itself, if that is what's at stake, by concentrating your energies on fighting the right battles on the wrong fronts, with the wrong weapons. On bad days, with all the zeal of people who know they're right, you are fighting on the wrong side.
The best thing you could do for your cause is to take a very thoughtful sabbatical, and come back tomorrow or next week or next year -- just as soon as you are willing to value and defend others' freedom as much as your own, whether you agree with them or not, and just as soon as you can acknowledge that not all of your -- or our -- moral principles can wisely become or remain the governing principles of a pluralistic, free society.
In the next and final post of this series, we're finally ready to take up the topic of same-sex marriage itself.
January 23, 2014
Rights and Rites and Right and the Right: Part Two
If my willingness to embrace gay people as friends, colleagues, neighbors, relatives, and fellow believers incurs the wrath of the God you worship, I am unmoved. The God I worship understands that the worth of every human soul -- yours, mine, everyone's -- is far greater than the sum of its actual or human-perceived sins.
This is the second post in a larger discussion. I recommend reading the first one, but if you'd rather not, you might be okay knowing that it ends with this excellent jumping-off point for today:
Our American civic morality is grounded in these familiar words from the Declaration of Independence: "life, liberty, and the pursuit of happiness." We call these inalienable, God-given rights. We declare that they are inherent in each human soul, not granted by government.
Bear in mind that "the pursuit of happiness" means not my right to chase happiness, but my right to live, within the reasonable bounds of legitimate law and of others' similar rights, in the manner which makes me happy -- not the manner which makes you happy or which you think should make me happy. Outside the general moral consensus, as measured by our institutions of representative self-government, if you feel it is in your moral, economic, or political interest to adjust my pursuit of happiness in some manner, you must, in deference to my freedom, confine your efforts at reforming me to persuasion and example. You must not resort to the force of law.
Today we'll take up an application of these principles. We begin with some Broadway music -- or not.
Men of American Fork, Beware
In American Fork, Utah, among other places, men have to be careful not to show too much enthusiasm for live theater. We must also avoid being caught singing or whistling show tunes.
You think I'm being silly, but I'm not. If an employer or supervisor catches us doing such things, whether at work or in a chance encounter in the WalMart check-out line, he can interpret that behavior as evidence that we are gay and fire us for cause. It doesn't matter whether the theater enthusiast is gay or not, and heaven knows we don't want to require or empower employers to test the proposition.
Men and women from cultures where ordinary, non-romantic friends commonly hold hands or kiss on the lips in public must be equally cautious, lest their employers see them, draw false conclusions about their sexuality, and dismiss them from their jobs on that basis. Reality and authentic cultural differences offer no legal shelter against an employer's perceptions in this matter.
Men and women who rent apartments must be cautious. If a landlord thinks a tenant is gay, there is no law to prevent him from evicting said tenant. Again, the renter's actual sexual orientation is not the point -- and, again, we certainly do not want landlords testing renters for authentic gayness.
In case you think the gay/theater stereotype is too silly to be credible, consider what I heard in a certain City committee meeting several years ago in American Fork. Some people argued with a straight face (sorry, pun intended) that we shouldn't do anything to support or encourage live theater in the city, because everybody knows live theater attracts gay people.
I Want the Protection, and I'm Straight
Even Utahns who politically are well to the right of li'l ol' conservative me (a seemingly infinite expanse), and who believe that homosexuality itself should be punished under the law, must concede that it would be unfair for me, a straight man, to be fired or evicted because my fondness for show tunes causes someone falsely to perceive that I am gay. So, unless we are willing to embrace some sort of authoritative, unconscionably invasive test for gayness, we have a real problem, if the right bigot with the wrong stereotype catches me whistling something from Brigadoon.
We can minimize my risk and spare landlords and employers the temptation to question everyone's sexual orientation rather simply. Let's pass sensible ordinances prohibiting discrimination in employment and housing on the basis of actual or perceived sexual orientation and gender identity. To be sensible, these ordinances would have to include exceptions for religious and other advocacy organizations and for employment or residence in someone else's home -- because at my home, more than anywhere else, I should have more latitude to enforce my particular principles than in an office, factory, or apartment complex.
The Utah Legislature will consider just such a bill in coming weeks. I hope they pass it, this time.
I assume that my right-wing friends would be eager to provide me, a heterosexual male, with legal protection from "the right bigot with the wrong stereotype," if only it did not, as a practical matter, require them to offer some shelter to actual homosexuals at the same time, and thus -- in their view -- offend God and jeopardize the very survival of human civilization.
The Universal Protected Class
Opponents commonly argue that the proposed legislation will create a new "protected class" -- and then they range from vague to creative in their attempts to explain what that might mean in practice. Let gay people live and work in our communities, and all our teeth will fall out, and BYU will never will another important football game. Sometimes it's almost that ridiculous.
Opponents are right in at least this limited sense: protected classes get special consideration in our jurisprudence. Whether we would be created a new protected class or not seems almost immaterial to me. Here's why.
As far as I can see, we would just be acknowledging my gay and transgender friends' membership in a very large protected class which already exists: humans. Or Americans, if you prefer. We would simply be adding sexual orientation and gender identity (in both cases, perceived or otherwise) to the list of things we cannot use as grounds partially to exclude people from the most important, most generously defined protected class of all.
How Far Are You Willing to Go?
To my right-wing friends who oppose such legislation, because you believe homosexual activity is immoral -- I believe that too, and I should be free to say so without being accused of hate speech -- I pose a few questions.
Given that you believe homosexual activity to be evil, how far are you willing to go to make gays unwelcome in your community?
Do you believe that gays forfeit the legal right to pursue happiness on their terms, in the community of their choice, because one aspect of their lifestyle is evil, according to what you and I accept as God-given moral law?
Can you with clear conscience jeopardize their homes and families or their jobs, as long as you don't put them in jail (severely curtail their physical liberty) or kill them (deprive them of life)?
Thin, Thinner, Water
The right to life is pretty thin broth if you're willing to grant it to gays only in the sense that you will refrain from killing them, but you feel free (irony noted) to make it difficult for them to live in your community. The right to liberty is equally thin if you think that the presence in your community of people who disagree with some of your moral principles infringes on your own legitimate liberty. The broth is practically water, if you think that you have adequately safeguarded someone else's liberty simply by agreeing not to put him in jail.
I have gay friends, colleagues, neighbors, and relatives. I may not endorse one aspect of their lifestyle. I may sometimes teach and preach against it. But I do not claim the right to evict them from my community, and I am determined to defend them as best I can from those who think it is their God-given right or duty to do so. I actually enjoy having my gay friends in my community, not because of their sexual orientation, but because there is much more to them than their sexual orientation -- and most of that is good.
If my willingness to embrace them as friends, colleagues, neighbors, relatives, and fellow believers incurs the wrath of the God you worship, I am unmoved. The God I worship understands that the worth of every human soul -- yours, mine, everyone's -- is far greater than the sum of its actual or human-perceived sins.
My zealot friends, if you feel the need to act in defense of your values -- as I do -- please, do so vigorously. Use every humane tool of persuasion at your disposal. I promise to defend you when some of your more intolerant opponents argue that criticizing someone's lifestyle on religious grounds is hate speech. But don't try to use the law in matters where there is no -- or is no longer -- general agreement in American society. When you attempt to use the law, I feel the need to defend those against whom you would use it, whether I agree with them or endorse every facet of their lifestyle or not.
A genuine commitment to freedom requires that we get used to defending people with whom we disagree. It's good for society. It's good for the soul.
Even if those people are gay. Or like show tunes. Or both.
(If you want to know how I evaluate same-sex marriage in this context, stay tuned. We're most of the way to that discussion now. Before we get there, we'll need to discuss my possible man-crush and a figurative woodshed. If you're troubled by the question, How can a good Mormon write such things as this post, read the first post in this series. Maybe it will help.)