Society January 09, 2014

Get Ready to Fight for Marriage and Religious Liberty in 2014

Aleteia's John Burger interviews traditional marriage advocate Ryan T. Anderson

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January 09, 2014
William Haun
2013 was one of the best years yet for proponents of “gay marriage” in America. Same-sex “marriage” was legalized in New Jersey, Hawaii, and Illinois; the Supreme Court struck down part of the federal Defense of Marriage Act and turned back California’s Prop. 8 case to a lower court, which declared the law unconstitutional; Defense Secretary Chuck Hagel ordered that same-sex spouses of military personnel be given full spousal and family benefits.

According to Ryan T. Anderson, co-author of What Is Marriage? Man and Woman: A Defense, there aren’t likely to be many more states legalizing same-sex “marriage” for now — unless the courts do it. But the focus will be on the religious freedom of those who oppose the practice.

Anderson, the William E. Simon Fellow at the Heritage Foundation, co-wrote What is Marriage with Robert P. George, McCormick Professor of Jurisprudence at Princeton University and visiting professor at Harvard Law School, and Sherif Girgis, a Ph.D. student in philosophy at Princeton and a J.D. candidate at Yale Law School. Supreme Court Justice Samuel A. Alito cited the work in his dissenting opinion in United States v. Windsor, the 2013 case which struck down part of the Defense of Marriage Act.

Aleteia recently spoke with Anderson.


What’s on the horizon in the battle over marriage in 2014?

Indiana is considering an amendment right now defining marriage as being between a man and a woman. There might be a few other states trying to redefine marriage, but after that, it’s more likely to be in a deadlock. We’ll end up with 15 or so states that have redefined marriage, and the other 35 will retain the proper definition — unless the courts, as we saw in the week just before Christmas, strike down state marriage laws, that’s probably how it’s going to stay for the foreseeable future.


And what about the courts?

While most Americans were celebrating the Christmas season, judges were busy redefining state marriage laws. In New Mexico, Utah, and Ohio, judges have usurped the authority of citizens and their elected representatives to discuss, debate, and vote on important policy matters regarding the most fundamental institution of society.

On Dec. 19, the New Mexico Supreme Court ruled that the state constitution requires New Mexico to recognize same-sex relationships. The next day, Dec. 20, a federal judge ruled that Utah’s constitutional amendment defining marriage as the union of a man and woman violates the U.S. Constitution. (This came just a week after a federal judge struck down Utah’s ban on polygamy.) The following business day, Dec. 23, a federal judge ruled that portions of Ohio’s marriage amendment violate the U.S. Constitution.

The U.S. Constitution does not require redefining marriage. In a Heritage Legal Memorandum, law professor John Eastman explains why marriage laws are constitutional. Among other points, he explains:
 
"The Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite-sex couples. Moreover, policies recognizing only traditional marriage further society’s compelling interests in procreation and child-rearing, among other things."

Knowing what equality demands requires knowing what marriage is and why it matters. Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. Government recognizes it because it is an institution that benefits society in a way that no other relationship does. It is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children.
2013 was one of the best years yet for proponents of “gay marriage” in America. Same-sex “marriage” was legalized in New Jersey, Hawaii, and Illinois; the Supreme Court struck down part of the federal Defense of Marriage Act and turned back California’s Prop. 8 case to a lower court, which declared the law unconstitutional; Defense Secretary Chuck Hagel ordered that same-sex spouses of military personnel be given full spousal and family benefits.

According to Ryan T. Anderson, co-author of What Is Marriage? Man and Woman: A Defense, there aren’t likely to be many more states legalizing same-sex “marriage” for now — unless the courts do it. But the focus will be on the religious freedom of those who oppose the practice.

Anderson, the William E. Simon Fellow at the Heritage Foundation, co-wrote What is Marriage with Robert P. George, McCormick Professor of Jurisprudence at Princeton University and visiting professor at Harvard Law School, and Sherif Girgis, a Ph.D. student in philosophy at Princeton and a J.D. candidate at Yale Law School. Supreme Court Justice Samuel A. Alito cited the work in his dissenting opinion in United States v. Windsor, the 2013 case which struck down part of the Defense of Marriage Act.

Aleteia recently spoke with Anderson.


What’s on the horizon in the battle over marriage in 2014?

Indiana is considering an amendment right now defining marriage as being between a man and a woman. There might be a few other states trying to redefine marriage, but after that, it’s more likely to be in a deadlock. We’ll end up with 15 or so states that have redefined marriage, and the other 35 will retain the proper definition — unless the courts, as we saw in the week just before Christmas, strike down state marriage laws, that’s probably how it’s going to stay for the foreseeable future.


And what about the courts?

While most Americans were celebrating the Christmas season, judges were busy redefining state marriage laws. In New Mexico, Utah, and Ohio, judges have usurped the authority of citizens and their elected representatives to discuss, debate, and vote on important policy matters regarding the most fundamental institution of society.

On Dec. 19, the New Mexico Supreme Court ruled that the state constitution requires New Mexico to recognize same-sex relationships. The next day, Dec. 20, a federal judge ruled that Utah’s constitutional amendment defining marriage as the union of a man and woman violates the U.S. Constitution. (This came just a week after a federal judge struck down Utah’s ban on polygamy.) The following business day, Dec. 23, a federal judge ruled that portions of Ohio’s marriage amendment violate the U.S. Constitution.

The U.S. Constitution does not require redefining marriage. In a Heritage Legal Memorandum, law professor John Eastman explains why marriage laws are constitutional. Among other points, he explains:
 
"The Equal Protection Clause does not compel recognition of same-sex marriages because same-sex couples are not situated similarly, in relevant respects, to opposite-sex couples. Moreover, policies recognizing only traditional marriage further society’s compelling interests in procreation and child-rearing, among other things."

Knowing what equality demands requires knowing what marriage is and why it matters. Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. Government recognizes it because it is an institution that benefits society in a way that no other relationship does. It is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children.




Beyond the definition of marriage, a lot will hinge on religious liberty, even in states that haven’t redefined marriage itself but have sexual orientation and gender identity laws on the books. We’ve seen this in New Mexico and Colorado. Both of those states define marriage as the union of a man and a woman; each of those states has a sexual orientation anti-discrimination statute. In New Mexico there is a photographer and in Colorado a baker who are both evangelicals who don’t want to use their services to celebrate same-sex weddings. In each case they lost court challenges. I think that’s going to be an area of focus for the coming years — what sort of religious liberty protections will exist and what sort of coercive measures the government will take for private citizens who don’t want to be celebrating same-sex relationships. Essentially, even in states that haven’t redefined marriage, even where they say, “Look, my personal belief about marriage is the same thing as in state law,” they’re still running into trouble.


What is our society missing in this debate, in your view?

I think too often the way this is played out is that it’s a discussion of naked claims for equality. One side will say, “We’re in favor of marriage equality,” but they will never tell us what they think marriage is. And everyone in this debate is for marriage equality — we all want the law to treat all marriages the same way. But the question is, “What sorts of relationships constitute marriage?” And only if can you answer that question can you then determine whether or not marriage policy is treating marriages equally or not. Even the people who want to redefine marriage to include same-sex couples, they will still have a marriage policy that will draw a line between what sort of relationship is a marriage and what sort of relationship isn’t a marriage. But they never tell us which lines should be drawn and why. So what will happen for those in favor of marriage equality when a same-sex “throuple” (a three-person couple) goes to a court to sue for their marriage equality right? Why is monogamy one of the lines that we should follow? What basis does it have? That’s something they haven’t told us about.

In the book that Sherif [Girgis], Robby [George] and I did, we tried to flesh out what’s actually lying behind the marriage equality — the revisionists’ account of marriage. We say, “All right, even though they won’t tell us what’s really kind of driving the relationship, we’ve read enough of their writings that we can figure out that from their view that marriage is an intense emotion. And so, what sets it apart from other sorts of relationships is that it’s the most intense or it’s the most important, it’s an intense emotional union. If that’s the case, there’s really no reason in principle why that relationship should only be between two people. Your most important, your most emotionally intense relationship could be between three people. There’s no reason why that relationship would have to be permanent, because emotions come and go. There’s no reason why it has to be sexually exclusive, because there are emotional unions that are enhanced by having sexual relationships outside of that relationship.

In other words, redefining marriage to abandon male–female sexual complementarity would make other essential characteristics — such as monogamy, exclusivity, and permanency — arbitrary, as leading LGBT scholars and activists admit. And what we find in the literature is that we now have people advocating for eliminating or weakening all three of those traditional requirements. You’ll see people who advocate temporary marriage licenses: these are called “wed-leases,” as opposed to the wedlock; throuples, a three-person couple who have other types of polygamous or polyamorous relationships; and “monogamish” relationships, which are sexually open relationships, rather than sexually exclusive ones. They’re still between two people, but they’re “monogamish” rather than monogamous; provided there’s no deceit or coercion, it would be okay to have a sexual relationship outside of that.


It will be very hard for the marriage revisionists to say why they oppose such innovations, which is why they’re not discussing it. So if you want to know how these conversations are taking place, it’s largely by obfuscating what’s really at issue.


What will become of society, ultimately, if marriage is redefined across the board to include unions between two members of the same sex?

It’s hard to tell how far down a slippery slope any given society would tread, but I think it’s easy to say that it would weaken the eligible basis for marriage law. To say the male-female aspect of marriage is irrational and arbitrary, just the result of an animus, the way that Justice [Anthony] Kennedy described it in his opinion in the Windsor case, then it’s much harder to see why the number two is so important. It’s hard to see how you retain monogamy in marriage. It’s harder to see why it’s permanent… it’s harder to see why it’s sexually exclusive.

The reason the government is in the marriage business in the first place is not because it cares about the romantic life of its citizens; the government cares about children. The sexual union of a man and a woman can result in a new life. That new life has one mother and one father, and marriage tries to unite that man and woman in a permanent and exclusive union so that the children who result from that union are given the gift of having a mother and father. There are various ways you can try to do this: you could try to coerce adults into doing this; you could try to force them into doing this, or you could incentivize them into doing it voluntarily by promoting a certain type of relationship, holding it up as an ideal. That’s how the state has done it traditionally, upholding marriage as an ideal so that adults could see a relationship they can aspire to so that children would have a mom and dad.

Anything you do that would weaken that relationship and weaken the intelligibility of what makes that relationship unique decreases the odds that people will actually live it out and increases the odds that we further weaken marriage in law and in culture.


Why is it that young people are decidedly pro-life but much more open to a redefinition of marriage?

I think it’s largely that they haven’t had the argument made to them. Forty years ago, you wouldn’t have had as high numbers among the younger generation identifying as pro-life. Forty years ago, they were telling us that pro-lifers were on the wrong side of history, that all young people were in favor of abortion and that forty years from now, it would just be geriatrics and the Pope who would be the last pro-lifers on earth.

But the pro-life movement launched, and they started making arguments, they started hosting rallies, they started the organizations, they wrote the books and articles, they came up with the campaigns, they came up with the political institutions, the cultural institutions, the crisis pregnancy centers, the educational initiatives — a whole array of things in the areas of policy, law, culture, and education. And now, the younger generation is more pro-life than their parents.

All that took work, and it’s work that’s just beginning to take place in the marriage issue. We don’t have nearly as many pro-marriage think tanks, pro-marriage political organizations, pro-marriage educational institutes as we do for pro-life. It’s great that we have it on the pro-life side; we just need to replicate it on the marriage side. But it’s very hard if you’re a young person. Everything you see on TV, such as Fox’s Glee, or what’s happening at your public school or what your friends are saying — everything you’re hearing in the popular culture is that you’re a bigot if you believe marriage is between a man and a woman, and there’s very little that tells you the opposite. We have not done a good enough job in communicating, even to our own people inside of the Church, inside the cultural institutions that should be sympathetic to the argument for marriage.




The book that Robby and Sherif and I wrote is one of the first, but it certainly shouldn’t be the last. There should be additional books, articles, op-eds, academic papers — all of that. Mark Regnerus’s study was a step in the right direction. There are other studies like that that are in the works. We need to have social sciences, philosophy, theology, law, and ultimately we need more Hollywood culture — pop culture — that tells the truth about marriage. But it’s very hard if you’re a young person who is bombarded with the opposite message to not become persuaded by it.


Is there an effort in elementary and secondary education to indoctrinate children into accepting a redefinition of marriage?

For 30 or 40 years there’s been a well-organized, well financed campaign by the LGBT movement to advance its agenda. It’s not by happenstance that all of this has happened; it’s been well-crafted, well thought out. I think most people who are opposed to it just hoped that it would go away but didn’t want to do the work that was required to counteract it. I don’t think the argument for marriage has been heard and rejected; it simply hasn’t been heard. Over the past year, I spoke on a couple of dozen college campuses, including Harvard, Yale and Princeton, Stanford, Amherst, Georgetown, Notre Dame, Boston College, Columbia, NYU, BYU, and a bunch of other schools. I would say that on every campus, students would come up to me and say, “We never heard a rational argument for marriage. We just never heard a secular case for traditional marriage before. We still disagree with you, but thank you for that presentation. It’s the first time we’ve heard it.”

On the other hand, religious students would say, “Wow, that was great. We’ve always known that this is what the Bible says, what the Church teaches. But we didn’t know how we could articulate this in secular language. We didn’t know how we could explain the law that’s written on our hearts using philosophy and sociology.”

So really, I think it’s that the other side has been very organized in advancing their cause in a way that our side has not.


What are some things Christians might do on a day-to-day, personal level to defend marriage from redefinition? How might Christians pay closer attention to language, for example? Is it wise for us to keep using terms like “gay marriage” or even the word “gay” itself?

The first thing Christians need to do is actually live out the truth. Redefining marriage to include same-sex relationships only makes sense in a world where marriages have already been largely degraded, whether that’s been with divorce or pre-marital sex or extramarital childbearing or pornography and the hookup culture. Everything that has taken place over the past forty years lays the groundwork for a legal redefinition of marriage. Only where you have roughly 40 percent of all children being born outside of wedlock, only where you have roughly 40 percent of all marriages ending in divorce, do you get a legal culture willing to say, “Yeah, the male-female aspect is just arbitrary and irrational.”

The second thing is just making the argument. For so many people, the pro-life argument rolls off their tongues, but they’re not equipped to make the argument for marriage. So if your neighbor or coworker were to ask, “Are you in favor of same-sex marriage? Why or why not?” are you willing and able to make that explanation in a way that is appealing and persuasive in the way that you are on the life issue? And I think that for many people it’s much easier to make the pro-life argument.


How should parents talk to their children about what kids see in the world today — same-sex couples living on the same block, for example, or classmates being picked up after school by two “daddies” or two “mommies.”

I think this is going to be the first generation possibly in human history in which we try to explain why we’re not in favor of redefining marriage, but we’re also not in favor of homophobia. We don’t want to be anti-gay, but being in favor of traditional marriage isn’t an instance of an action that’s anti-gay. We can’t deny that over the course of human history, gays and lesbians have been mistreated. But redefining the central institution of civilization is not one of those. So that’s a narrow pathway we have to walk. How do we show love to our neighbors who have same-sex attraction? Treat them with the dignity they have as children of God, without celebrating their relationships. And that’s going to be a challenge for this generation in particular.
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