Ten years ago, 57 percent of Oregon voters affirmed the traditional definition of marriage by supporting a same-sex marriage ban. On Monday, U.S. District Judge Michael McShane, the first openly gay federal judge to serve in Oregon, declared that the ban is no longer valid, since it violates the U.S. Constitution by discriminating against gay couples.
The logic of Judge McShane’s ruling echoes that of Supreme Court Justice Anthony Kennedy, who in June, 2013, wrote the majority opinion in United States v. Windsor, in which he claimed that the differentiation between heterosexual marriages and gay marriages is demeaning to gays, imposing an inequality that violates the Equal Protection Clause of the Fourteenth Amendment.
Since the Supreme Court’s 5-4 ruling in the Windsor case, which nullified sections of the Defense of Marriage Act and enabled the federal recognition of same-sex marriages, judges in nine states (Oregon, Pennsylvania, Arkansas, Michigan, Idaho, Oklahoma, Texas, Utah, and Virginia) have declared gay marriage bans unconstitutional. In four other states (Kentucky, Ohio, Tennessee, and Indiana), judges have declared that same-sex marriages that occur outside their respective states are still entitled to legal benefits. In 12 of these 14 states, the recognition of gay marriage is on hold until the rulings are appealed.
In Oregon, however, there is no party with standing to appeal. Thus, it appears as if Oregon has officially become the 18th state in which same-sex marriage is legal. Marriage licenses were being distributed in Portland a mere 20 minutes after Judge McShane’s ruling, and, unlike the case in Utah, where an emergency stay was issued by the Supreme Court that halted the recognition of gay marriages, there seem to be no legal challenges on the horizon.
Oregon Attorney General Ellen Rosenblum, following the lead of attorney generals in six other states, all of whom are Democrats, refused to defend traditional marriage laws in court, and the National Organization for Marriage was prevented from arguing on behalf of the ban, which received no support from Oregon Governor John Kitzhaber, either. “No longer will Oregonians tolerate discrimination against the gay, lesbian, and transgender community,” Governor Kitzhaber said in response to the ruling.
The 13th consecutive legal victory for gay marriage advocates was soon followed by the 14th when a federal judge in Pennsylvania struck down a 1996 state law defining marriage as a union between a man and a woman. Judge John E. Jones III contemptuously dismissed the traditional marriage law on Tuesday, writing that it belongs in “the ash heap of history.” If the decision stands, then the Quaker State will become the 19th state to allow gay marriage. In support of his ruling, Judge Jones cited the “12 federal district courts across the country, which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.”
In every case in which a federal judge has overruled the will of the voters, traditional marriage has been painted as discriminatory, and the rational basis for traditional marriage has received scant attention.
Judge Michael McShane writes, in his opinion, “There is no legitimate state interest that would justify the denial of the full and equal recognition, attendant rights, benefits, protections, privileges, obligations, responsibilities, and immunities of marriage to same-gender couples.” Furthermore, McShane notes, “Because Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the 14thAmendment to the United States Constitution.”
Are gay marriage bans irrational?
Contrary to Judge McShane’s smug claims, the government actually does have a legitimate — and entirely rational — interest in sanctioning only traditional marriages. The state’s primary interest in marriage has historically revolved not around people’s romantic lives (Americans are free to love anyone whom they wish), but around the health, education, and welfare of children. Since only a man and a woman can procreate, and since children are best prepared for a productive adulthood by two biological parents in a committed relationship, the state has opted to offer recognition, rights, protections, and privileges to the traditional marriage relationship.
Children are most likely to grow into healthy, mature, and stable adults when they are raised by their biological parents. As a result, the government is concerned with those relationships that will — by their very nature — produce children. And the only relationship in which procreation is possible is the relationship between a man and a woman.
By granting legal recognition, protections, and benefits to traditional marriages, the government encourages mothers and fathers to remain loyal to each other and to their children, which increases the likelihood that their children will become productive adults and greatly diminishes the likelihood that their children will experience emotional distress, experiment with drugs, have children out of wedlock, drop out of school, or become poor, all of which are detrimental to society. For the children’s sake, then, the government has an interest in promoting permanent and exclusive unions consisting of one man and one woman.
Are gay marriage bans discriminatory?
The government’s historic concern with marriage is grounded in reason, not discrimination. It is grounded in biology — the physical complementarity of men and women — and sociology — the understanding that children are raised best in an intact home consisting of biological mother and father.
If anyone should be criticized for having an irrational, inconsistent, and discriminatory view of marriage, it is the gay rights activist. Here’s why: If gender limitations in marriage are arbitrary — that is, if there is no legitimate reason to restrict marriage to one man and one woman — then number limitations are arbitrary as well. If marriage is based solely on romantic love and not also on the raising of children, then why not let three or four people of any gender get married? Why restrict marriage to two people who are in love rather than three people who are in love? Gay marriage supporters cannot escape the inevitable conclusion that the dismissal of gender restrictions in marriage must by necessity entail the dismissal of number restrictions, since, according to the revisionist definition of marriage, any limit preventing people from experiencing “true love” can be described as arbitrary.
In Massachusetts, the first state to legalize same-sex marriage, three lesbians, Doll, Kitten, and Brynn Young, are now claiming to be married. According to the revisionist definition of marriage, in which marriage centers not on children but on the romantic feelings of adults, this “throuple” is actually legitimate. After all, if gender should not keep adults from entering a marriage — and experiencing “true love” — then why should number?
How gay marriage is advancing the sexual liberation movement
“I’d always wanted to get married,” Kitten told the New York Post, “and Doll and Brynn indulged my wishes.” This language, focused solely on the satisfaction of desires, is a characteristic feature of the sexual liberation movement that is the driving force behind the efforts to legitimize gay relationships as well as polyamorous relationships (the word polyamory means “many loves”). On Salon.com, a woman writing about her two husbands stated, “As far back as I can remember, I felt that loving one person romantically did not preclude the possibility of loving another at the same time. It seemed natural and intuitive to me.”
The unleashing of primal desire and the abolishing of sexual norms is the end game for the gay rights movement, which is simply an extension of the sexual liberation movement that began in the 1960s. It is not simply gender and number limits that are being attacked, but the very concepts of permanence and exclusivity in marriage as well. Dan Savage, a gay rights advocate, has claimed that a more flexible attitude within marriage is “just what the straight community needs.” By a more flexible attitude, of course, Savage is referring to the allowance of sexual infidelity as long as there is an honest admission of it.
Gay marriage supporters ought to end the charade and follow the logical conclusion of their argument — if gender limitations are arbitrary, then so are number limitations. If the requirement of exclusivity is arbitrary, then so is the requirement of permanence. That is how gay marriage threatens to further weaken the institution of marriage: by making the very word “marriage” meaningless — by rending from it all of its distinguishing features.
What state recognition of marriage is really about
For the traditional marriage supporter, the state should encourage sexual exclusivity and permanence in order to increase the odds that a father will remain a father to his children, allocating resources to the children that he raises with his wife. The state should legally protect traditional marriage primarily because of its procreative elements, not its romantic elements.
For the gay marriage supporter, marriage is about love — emotional connection, not physical complementarity. If all love is equal, then why shouldn’t multiple adults marry each other if that is what they want to do? Would it not be discriminatory to prevent multiple people from getting “married” if that is their desire?
Traditional marriage is grounded not in reckless passion or undisciplined emotional fulfillment, but in history, biology, and sociology. Thus, there is a reason why marriage is limited to two people — one man and one woman — who, committing to each other permanently and exclusively, raise the children resulting from their sexual union. It is for the well-being of children, the flourishing of the family, and the proper ordering of society. Traditional marriage is the foundational unit of society, where basic needs are met. Clearly, the state has a rational interest in protecting the institution of marriage.
Why traditional marriage is beneficial for society
In Marriage and Civilization: How Monogamy Made Us Human, William Tucker writes, “The rule is: Those who form traditional families succeed; those who don’t fail.”
Human beings are not like chimpanzees, which mate frequently, haphazardly, casually, and unthinkingly. Tucker writes, “It is our sexual repressions that have made us human,” for the discipline required by establishing monogamous, exclusive, and permanent relationships can only be exercised by rational beings who are able to rule over their passions in the pursuit of worthy ends, including the goods of marriage and child-rearing.
There is no questioning the importance of stable marriages for children. Tucker notes, “Children without fathers are more at risk for drug and alcohol abuse, dropping out of school, depression, delinquent behavior, crime, early sexual activity, and having illegitimate children in the next generation. They are more at risk for abuse, molestation, and incest.”
If we want to promote traditional marriage so that it holds the prominent place it deserves in our society, we need to shift the language away from discrimination and toward reason — away from self-actualization and toward the well-being of children. Unless we are willing to grant that marriage ought to be devoid of any limits (and, as a result, devoid of any meaning), we must do everything in our power to promote traditional marriage in our churches, in our schools, in our legislatures, and in our courts.
Every deviation from the traditional model of marriage occurred after the fall (Matthew 19:4-6).
Jesus answered, “Have you not read that the one who made them at the beginning ‘made them male and female,’ and said, ‘For this reason a man shall become one flesh’? So they are no longer two, but one flesh. Therefore, what God has joined together, let no one separate.” (Matthew 19:4-6)
When God created the world as he pleased and declared that it was good, he saw that everything operated as it should — according to his design. Part of God’s design for creation was marriage, the permanent, exclusive, and comprehensive union of one man and one woman. In his conversation with the Pharisees, Jesus acknowledges that marriage was instituted by God at the beginning. “What God has joined together,” Jesus says, “let no one separate.”
After the fall of humanity, which is recorded in Genesis 3, humans faced a host of new difficulties. Work began to be characterized by toil and frustration. Reproduction acquired pains and struggles that were previously nonexistent. Enmity arose between man and man, man and the earth, man and God. And, in addition, the traditional marriage formula was dissolved by human beings pursuing their own desires. The rabid pursuit of pleasure, along with the disordering of society and the perversion of proper relationships, led to the establishment of alternative marriage formulas that were no longer limited to one man and one woman.
Thus, when we encounter marriages in the Old Testament that are polygamous and that include concubines and female slaves, we must remember that these relationships, which were far from ideal, were established by fallen human beings exercising their own wayward wills in direct opposition to God’s desires.
Attacks on monogamous relationships are to be expected, for our corrupt human desires incline us to evade God’s law — to exercise our will instead of the Father’s. We must remember that we are always at our best when we live in obedience to God’s instructions. “[M]onogamy is manifestly a more equitable and successful way to organize a society,” William Tucker writes. Still, “it is always under siege and forever fragile.”