United States v Windsor (the DOMA case)

I've been staring at my screen for a while trying to figure out what I wanted to say about United States v Windsor, the DOMA case that was decided yesterday. My initial plan was simply to do a Natalie-style breakdown of the opinion for those of my readers who value such things, and then do a separate post with my personal responses, but after reading the whole thing, I'm not sure I can separate them cleanly enough to do that.

Some of our most celebrated Supreme Court cases have been, I think, wrongly decided. Brown v Board of Education is one such case (although some have argued that there was no legally correct answer, I don't know of anybody who thinks the Brown I decision was correct on the merits of the case). Griswold v Connecticut, the case that enunciated federal protection for the right to privacy, is another (that the constitution guarantees some privacy-like rights is quite clear, but not even the prevailing justices in that case could agree on where, exactly, the constitution guarantees the right to privacy in general). I think that Windsor is going to go down in history with these cases. Wide-eyed law students in the future will learn about the time in 2013 when the Supreme Court struck a historic blow for equal rights - by ignoring the law.

So ... what happened?

The Windsor in Windsor is Edith Windsor, a New York lesbian. Windsor and her partner got married in Canada, gay marriage jurisdictions in the United States being hard to find at the time. New York then decided it would recognize same-sex marriages performed outside of its borders (later it would decide to permit same-sex marriage within its borders, but that's not relevant to the story). At this point, Windsor and her wife, Thea Spyer, were legally married as a matter of New York law. Spyer died, and willed her entire estate to her wife.

As you may know, inheritance is subject to federal income tax - it is, after all, money that you didn't have before, which is pretty much the definition of income. For its own inscrutable reasons, however, the federal tax code does not require you to pay income tax on an inheritance you receive from a spouse. You can see where this is going. For purposes of New York law, Windsor had inherited from her spouse.

For purposes of federal law, though, Windsor had not inherited from her spouse, because Section 3 of the Defense of Marriage Act defines "spouse" for purposes of federal law as an opposite-sex person (I mean that literally; Section 3 of DOMA amends the aptly named Dictionary Act). As a result, Windsor paid the Treasury her inheritance tax, then sued for a refund. The Treasury refused, since Spyer had not been Windsor's wife for federal law purposes, and Windsor took the government to federal district court on the grounds that Section 3 of DOMA violated the Equal Protection Clause.

Her argument for that was fairly bold and very much in keeping with the story that is going to be told to future generations about the gay rights struggle. But this is where things begin to get weird from a civics point of view, so before we get to her argument, pay attention to what happened next: the government told the district court that it agreed with Windsor's argument and should be ordered to refund her tax, with interest - while simultaneously continuing to enforce Section 3. While arguing that Windsor should get her tax back because Section 3 was unconstitutional, the government was simultaneously collecting estate taxes from other people in her situation (and otherwise denying legally married same-sex spouses recognition under federal law).

As might be expected when the defendant's argument is, "I am wrong and the plaintiff is right," Windsor won at the district court level. The government then appealed to the Second Circuit Court of Appeals, while continuing to hold Windsor's estate tax. This is where the gentle reader may expect the government to turn its cloak and ask for Section 3 to be upheld and the tax retained. But what happened was even more incredible - the government's argument on appeal was that it should lose the appeal, because Section 3 was unconstitutional. Take a moment to appreciate that: the government said it should lose, lost, and then appealed its loss on the grounds that it should have lost.

Under these circumstances, it is perhaps hardly surprising that the government lost. The government then appealed again, and argued to the Supreme Court that it should ... wait for it ... lose.

And it did.

You can probably tell that I have some feelings about that whole process. But let's get on to the actual opinion.

If you have the good fortune to come across the better sort of popular news reporting about legal issues, you may have heard that the majority opinion in Windsor is ... confusing. This is absolutely true, but to understand why, we need to review a few basics of common law. One of the reasons I dislike popular news reporting about legal issues so much is that it can't seem to decide which story it wants to tell. On the one hand, there is usually a narrative about "winning" and "losing," as if people pay attention to these things strictly for the entertainment value of observing the litigants fight. On the other hand, there is usually a narrative about which laws have been struck down, died, revived, or other such agonistic terms.

Neither narrative is wholly satisfactory. What people really want to know, I think, is what the state of the law is after the case is over. And to understand that, you have to understand how the case arose (which is one reason I spent so much time sketching that) and how one side "won" or "lost," a law "died" or was upheld. Remember that the whole manner in which courts create law (which in a broad sense they are supposed to do; let us have no childish nonsense about "activist" vs. "conservative" judges here) is by articulating principles, so that the legal reasoning in one case can be applied to analogous - but not identical - situations.

So what are the principles that underlie Windsor? The majority spends several pages discussing the proper boundaries of federal action with respect to marriage. "By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States." Aha, thinks the reader - this is a federalism argument. "Federalism" is a fancy word for the principle that not everything is something that the federal government can regulate. Yet the majority then says that it is not deciding the case on federalism grounds, because that's unnecessary: "Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance."

So ... apparently we will not be hearing whether Section 3 violates federalism principles after all. What then? The majority turns to a principle that it will restate in several forms: "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. [citation omitted] The Constitution's guarantee of equality 'must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot' justify disparate treatment of that group." Fair enough, it seems. New York wants to protect same-sex couples (by allowing them to marry); Section 3 does the opposite (by refusing to acknowledge their otherwise valid marriage). Equal protection violation, problem sorted.

Take another look at that sentence and ask yourself what the animating principle is. Is the constitutional problem here that Section 3 seeks to injure the class that New York seeks to protect? Or is it that Section 3 itself reflects a "bare congressional desire to harm a politically unpopular group?"

If the former, then Windsor would seem to stand for the very alarming principle that federal law cannot override state law. That is entirely counter to our tradition of federalism. The federalist principle is that there are some areas as to which the federal government cannot make law at all, but in those areas where the federal government can act, its law is supreme. This is what Article VI, clause 2 of the federal constitution means when it says "the laws of the United States ... shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."

It seems incredible that the majority opinion would be based on such an elementary error. So perhaps the real principle is that laws that represent a bare desire to harm a politically unpopular group are unconstitutional.

This is an attractive statement, but also an incredibly strange one to anybody who is even moderately versed in the actual law of equal protection in this country. As I've said before, neither the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fifth Amendment, nor the general concept of "equal protection" means that all laws must treat everybody equally. This is easy to forget when one is caught up in the emotions of a righteous crusade for civil rights, but it is a very ordinary concept. Prior to Windsor, some people were denied the benefits of federal marriage law. After Windsor, some people are denied the benefits of federal marriage law. Let's call them "single people." Why can't single people demand federal marriage rights under equal protection?

The answer is as simple, and as complex, as saying that single people and married people are not the same. The Supreme Court puts it this way: "The equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantages to various groups or persons."

Because of this tension - on the one hand, we want everybody to enjoy equal protection under the law; on the other hand, taking that principle to its logical extreme means virtually no law is valid - American jurisprudence has a familiar and fairly well understood way to balance. This is the "tiers of scrutiny" or "heightened scrutiny" approach you may have heard about. The principle is this: when a law benefits or harms one class of people over another (say, giving married people benefits that only married people can have, or imposing penalties on convicted criminals that only convicted criminals have to suffer), the question is what the purpose of the law is and what sort of distinction is being made. Roughly, when a law draws a distinction based on something that is very rarely relevant to legitimate state interests in general, the classification must be narrowly tailored and the specific state interest in question must be a "compelling" one. The classic example is race (well, it is now; originally it was religion or national origin). For instance, suppose the United States were suffering from a plague that only infected white people, with a 100% mortality rate, which could only be communicated by shaking right hands. A state could very likely pass a law forbidding white people to shake right hands with each other, in this case, despite the fact that the law would only burden the behavior of white people (a class based on race), because preventing the spread of such a virulent plague is a "compelling" government interest, and the law was as narrowly tailored as possible (it would, for instance, be unconstitutional to pass a law preventing white people to have physical contact with each other - the goal is still compelling, but the method is no longer as narrowly tailored as possible).

At the other end of the spectrum is "rational basis scrutiny," which is applied when the law draws a distinction of the sort that is often relevant to legitimate state interests in general. In this case, the rule requires only that the government's goal be a "legitimate" one, and that the classification be one that a rational person could find legitimate - even if other people disagreed. Married people vs. single people is one such classification - if a law distinguishes between married people and single people (a distinction that is often relevant to legitimate government interests), it need only be based on a set of facts that a rational person could believe to be true. Those facts don't have to be true. They don't have to be popular.

What Windsor really wanted was for the Supreme Court to say that sexual orientation is very rarely relevant to legitimate state interests - to say that it is like race, religion, or national origin. I think it fair to say that this is what most LGBT advocates, including myself, want the law to say. And indeed, most of the legal arguments in Windsor were about precisely this question. This is how we decide equal protection arguments in this country, and the obvious fact that virtually every law creates inequality by the very nature of lawmaking.

But, having raised the specter of equal protection law, the opinion doesn't even mention the tiered scrutiny test. Instead, it recites a variety of ways in which Section 3 makes same-sex marriages "second class marriages." Now, it is undoubtedly true that Section 3 has this effect. But notice what the court goes on to say: "What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

I confess to being skeptical that one can, as a matter of principle, determine the "purpose" of a law with any degree of certainty. But let us leave that aside, and assume that it is theoretically possible to determine a law's purpose. What exactly is the rule here? Would it be enough if Section 3's principal purpose were to demean same-sex marriages, even if it didn't really have that effect? What about the other way around - what if a law accidentally had the effect of demeaning same-sex marriages, even though that wasn't its principal purpose? Or does a law have to have both? What if a law does neither? What if a law merely makes a distinction between opposite-sex and same-sex marriages, but manages to do so with neither the purpose nor the effect of demeaning either class?

If the court had simply followed the tiered scrutiny test, none of these questions would arise. Instead, they do. The court never explains the test it is using to make its decision. It never even explains its reasoning. It simply lays out a bunch of statements, and then says, "Somewhere in here is our warrant for holding as we do." What are we supposed to do with that? What is the law?

One might well ask why the court did things this way. We may never know. It may be that in the strictest sense we can't know, any more than we can know why a law was passed. If one were feeling cynical, one might imagine that the court wanted to make a statement on gay marriage without articulating a usable test that would be applied throughout the nation. Yet if that were so, why didn't they simply dismiss for lack of standing? Did they feel like to dismiss both Windsor and Hollingsworth (the Prop. 8 case) without making some sort of statement would be somehow cowardly?

Which brings us to the question of standing. Recall that, from the very first trial, Windsor won, and the government repeatedly urged successive courts that Windsor should win. I am incredulous that, under these circumstances, the court agreed to decide the merits of the case at all.

There is a tendency nowadays to imagine that the Supreme Court is the final arbiter of justice in the land, and the ultimate word on what is the law. This is not true. In fact, Article III of the constitution specifically prohibits the judiciary from issuing what are called "advisory" opinions. In some countries, one can essentially ask the judiciary a hypothetical question, and the judiciary is allowed to answer - to give its legal advice about the query. One can imagine the usefulness of such a situation. However, the constitution prohibits the federal judiciary from doing any such thing. In this country, if one wants mere legal advice from a government official on a constitutional question (e.g., "Hypothetically, what level of scrutiny should be applied to classifications based on sexual orientation?"), one asks the attorney general. The American judiciary is only allowed to decide actual cases. Doing so may require it to state what the law is, but that does not mean that the judicial branch has the power, in general, to state what the law is. First, there must be two parties who disagree over which of them is entitled to redress.

And yet in this case ... where was that? Windsor won. The government agreed that she should win. Where is the disagreement? At every stage of the litigation, the government loudly and forcefully denounced its own cause. Truth be told, the Supreme Court was not allowed to decide this "dispute," but if it wanted to avoid the clarity that the tiered scrutiny analysis would give, it certainly had an easy out.

I do not think that Section 3 was good policy, and I would - in general - be glad to see it gone. But I am deeply disappointed in the way that this all played out. The judiciary ducked its responsibility to say that this whole appeal was an unconstitutional attempt to weasel an advisory opinion out of it, and then issued a confusing muddle of an opinion with a clear result but no clear reasoning or statement of principles (again, if one were of a cynical mind, one might think they didn't want to make their reasoning clear). But the deeper cowardice belongs to the executive branch, which got us into this whole mess by continuing to enforce a law that it believed - as it told everybody who would listen - to be unconstitutional. This is unacceptable. If the executive believes that a law is unlawful, it is supposed to refuse to enforce it, in which case it will never have to defend it in court. If the legislature has a problem with that, the two of them are supposed to fight it out. If the executive believes that a law is lawful, it is supposed to enforce it, and defend it in court. But the executive cannot have it both ways. Either it has the courage of its convictions or it does not. If one were of a cynical mind, one might think the executive wanted the political cache of being an LGBT ally and the political cover of only ceasing to enforce Section 3 after the courts had "agreed" that it was unconstitutional. Cowards.

As I said, I am sure that striking down Section 3 will be remembered as a landmark victory for the cause of equal rights. And I suppose that it is. But I cannot escape the conclusion that it was a victory achieved by the cowardice of two branches of government whose essential reasoning was that the ends justify the means. A marriage regime that is no respecter of sexual orientation is a good end. But the ends do not justify the means.

A Christian Argument for Homosexuality

There's been a lot of gay marriage in the news lately, and since I am not presently bound by an employee/employer agreement to avoid discussing potentially divisive political issues on my blog, now seems like a good time to revisit that issue. On the news front, if you haven't read, the First Circuit Court of Appeals ruled that the Defense of Marriage Act is unconstitutional (I haven't read the opinion yet, but my immediate reaction, as it has been for the past six years, is "duh"). In addition, the Ninth Circuit has declined to revisit its decision earlier this year ruling Prop. 8 unconstitutional (again, duh - a motion to revisit boils down to asking the court, "Okay, I know you just gave me your ruling, and I don't think I'm entitled to a new trial or anything, but would you pretty please reconsider?" Three guesses what the most common response is). Oh, and of course the president's stance on gay marriage is becoming increasingly favorable.

What brings me to my keyboard, though, is a news article I read recently quoting somebody who lamented that the Democratic party is not articulating the religious case for gay marriage to what this person called the "religious left." I don't think I like the label of "religious left" any more than I like the label of "religious right," because I don't think anybody whose stance on sociopolitical issues is truly religiously determined reaches his conclusions on the basis of current politics (plenty of people, I'm sure, do reach conclusions on such issues on the basis of current politics, and then cloak those conclusions in religious terminology, but as that isn't religious activity I am not particularly concerned with it). However, I do think there is a religious (specifically, Christian) case for gay marriage, and I think it might be instructive for me and my hypothetical readers to articulate it here a la Natalie.

This will not be a short post.

Let me first take a new paragraph to make two points clear. Point the first, this is not necessarily my current thinking on gay marriage as a religious issue. Point the second, I don't much care what my current thinking on gay marriage is as a religious issue. I already know what my current thinking on gay marriage is as a political issue, so that equips me to wield my franchise on this issue any time it comes up. And, continuing the theme of my earlier post, I don't actually have a religious belief about gay marriage per se. What I have is a belief in the process of interpreting the Bible (with corollary beliefs about why I should care about interpreting the Bible). Let me dwell on this point for a moment to make explicit the implications. If somebody doesn't share my belief that Scripture is wholly sufficient to tell us what we need to know about God, and wholly accurate in that respect, then I don't care what their religious stance on gay marriage is because they aren't part of my religion. If they are part of my religion, then I don't care what their religious stance on gay marriage is so long as they have reached that stance as the result of an honest, best-efforts read of Scripture. Gay marriage is not integral to Christianity. Deciding our stances on moral issues on the basis of honest, best-efforts reading of Scripture is. If two honest, best-efforts reads of Scripture come to different conclusions on any given issue, well, that is the nature of reading.

Which brings me to the first thing I think should be understood whenever anybody tries to discern the Bible's stance on gay marriage, which is this: the Bible does not discuss gay marriage. It doesn't even discuss being gay (as I've previously said). It barely even discusses gay sex. Now, this does not mean that the Bible has nothing to say about gay marriage, any more than the fact that the Constitution doesn't discuss gay marriage means that the Constitution has nothing to say about gay marriage. It is a property of all texts that they may implicate issues they do not explicitly discuss. But it does mean that right-thinking people could reach more than one conclusion about what the Bible has to say on this issue.

This is nothing shocking. We deal with this all the time in Christian pop culture when we try to apply the Bible to dating. The Bible discusses dating even less than it discusses gay sex, but we remain convinced (rightly, I think) that the text contains principles that can lead us to some version of Godly dating. And while we're on the subject of Biblical ambiguity, let me take a moment to state the obvious fact that we, as Christians, generally continue in fellowship with people who share our core religious beliefs but reach different conclusions as to what the Bible says on specific issues. I know plenty of Christians who don't even think that Christ died for everybody, which is much more fundamental to the faith than gay marriage, and they are still in every sense my brothers and sisters in Christ. Shame on me, and shame on my coreligionists, if we can't stay in fellowship with believers who disagree with us on something as trivial as gay marriage, homosexuality, or gay sex.

So, on to the argument itself, as I would make it.

Let me start by positing the following principle: that as Christians, we should presume that any given activity is moral until proven otherwise. By "moral," I mean "not wrong in the sight of God." I think this is a fairly uncontroversial assertion, but let me try to give it some backup just in case. Paul once told Titus not to oppose those Jewish Christians in his community who were teaching morality based on Jewish traditions and mythology. "To the pure," he said, "all things are pure." (Titus 1:15). Again, Paul admonishes us that the general attitude of a Christian towards moral activities should be permissive in Romans 14. Observing the Sabbath? Drinking alcohol? Whatever, the apostle says. Abstain or not; the act itself makes no difference to God. The case of eating food sacrificed to idols has always seemed particularly instructive to me. Suppose one of my pagan friends invites me over for dinner. Before we eat, my friend prays over the meal, thanking Demeter for her bounty and offering the meal to her glory. Should I still eat this food? Paul's answer in 1 Corinthians 8 (which actually discusses a slightly more extreme version of my example) is, whatever. "Food does not commend us to God," he says in verse 8. Most interesting to me is the fact that Scripture's answer to this question is not predicated on the premise that Demeter does not exist. Maybe she does, Paul says in verse 5. And still the answer is that eating food consecrated to Demeter does not consecrate me to Demeter - this despite the fact that the whole reason one eats food consecrated to a god is to affirm the connection between the eater and the god. Despite all this, Paul says, it's just food.

If we are satisfied that in Christianity activities are to be considered moral by default, we must now attempt to demonstrate that gay marriage is specifically excepted from this general principle of moral liberty. How might we do this?

Let's start by treating gay marriage as a species of marriage. We often hear it preached in churches and at weddings that because God created one man and one woman as the first married couple, we should infer that God defines marriage as between one man and one woman. This argument does not persuade me. God plainly does not endorse the one man, one woman (1M1W?) model exclusively. David himself kept multiple wives, and in 2 Samuel 12:8, God says that he would have given David even more if he had asked. We might infer from Adam and Eve that God prefers marriage between one man and one woman, but if so, he apparently didn't prefer it enough to tell people like David (or any of the Bible's other prominent polygamists) to stick to one woman. Before we go drawing too much from Adam and Eve, I would point out that creating one man and one woman as the species' first family is also consistent with a world in which God doesn't give a fig for what form our marriages take.

But then again, we are told in 1 Timothy 3:2 and again in Titus 1:6 that a bishop should be the husband of one wife (or, if you prefer, a man of one woman). Doesn't that demonstrate that God's highest ideal is 1M1W? I would say no. That view postulates that God will accept many versions of marriage, but considers one to be a better version than others. I think it is clear from these passages that God prefers fidelity to infidelity, but when God says something is acceptable, it is acceptable. Consider the example of marriage vs. singleness. We know that Paul preferred singleness, but we also know - from Paul - that God does not rank one higher than the other. More to the point, I cannot swallow a metaphysics where God would tell "bishops" - little more than local pastors, in Paul's day - that 1M1W is the best form of marriage, and not tell the kings or priests of all Israel the same thing if indeed this was a universal principle.

As a last marriage-based objection to gay marriage, we might consider the fact that there are no married gay couples in the Bible. We might accept polygamy on the basis that Godly men practiced it with no objection from on high. But we have no examples of Godly men (or women) married to each other. This is all true, but it also postulates a rule of morality that states that something is only Godly if we can find Biblical precedent for it. As discussed earlier, I do not think that is the rule of morality that the Bible proposes. Besides, there is a perfectly sensible reason for there not to have been any gay marriages in the Bible, which is that no cultures in any of the Bible's time periods practiced, or even struggled with the issue of, gay marriage. Why should they? The very concept of a "gay man" thinking of himself as a "gay man" wouldn't be invented for almost two thousand years (depending on when in the Bible's timeline we are placing ourselves, more than two thousand years). And let's not even get started on the differences in people's reasons for marriage now as compared to two millennia ago.

Let this dispose, at least until somebody raises a new objection, of marriage-based objections to gay marriage. What about sex-based objections?

Before we start in (again) on the Bible's view of gay sex, we might observe that sex is not the whole of marriage. This is a point we are fond of remembering at heterosexual weddings, but fond of forgetting when it comes to gay marriage. Still, the fact remains that no marriage consists solely of sex. Many marriages barely include sex at all and are still, by many lights, successful marriages. I think we can all agree that sex is good for a marriage - but then again, I think we can also all agree that it is bad for any marriage to be primarily about sex. So I think we might justifiably be wary of any argument that says that gay marriage is immoral because one component of gay marriage is demonstrably immoral. Still, I don't think anybody gets married planning to have a sexless marriage, so let us proceed with sex-based arguments.

There are few enough passages in the Bible that discuss gay sex that I think we can treat almost all of them here. In roughly chronological order:


Genesis 19 (the story of Sodom and Gomorrah). Insert all the standard disclaimers about how "sodomy" is improperly named after Sodom here. What's that? You don't know what those disclaimers are? Go educate yourself; the post will still be here when you get back. Now that you know that, really, is there any doubt here that the evil Lot is trying to shield his guests from is not gay sex but rape? Okay, yes, it's gay rape, and yes, he offers his (allegedly) virgin daughters to the mob to be raped in their stead. Two possibilities there. One is that Lot thought having his daughters raped was okay, because that's heterosexual, but thought that having his guests raped was objectionable, but that's homosexual. Two is that Lot felt like his obligations as host required him to do anything in his power to protect his guests (and probably didn't have too high an opinion of women in general). Which seems like the more culturally appropriate interpretation to you? I go with the latter. If the angels visiting Lot had manifested as women (leaving aside all the weirdness it would throw into the story for two women to walk into a city all alone and visit a man they were unrelated to), I don't think his actions would have been different. I conclude that Genesis 19 has nothing to say about the proprieties of gay sex.


Leviticus 18:22 ("You shall not lie with a male as with a woman. It is an abomination."). At first blush this seems like a fairly clear Biblical prohibition against gay sex. But I think that is not really fair. To begin with the most pedantic objection, it says nothing about lying with a woman as with a man. If this was really about homosexual sexual activity, wouldn't God list that somewhere? Perhaps we should construe this as about procreation, or the supposed sanctity of the male body. To play devil's advocate to myself: well, maybe. Maybe women aren't mentioned because it's culturally appropriate to refer to male activity as including equivalent female activity unless otherwise specified. To play devil's advocate to my devil's advocate: ... really?

Okay, less pedantic. What does it mean to lie with a male as with a woman? Does that cover anal sex only? Plenty of men and women, homosexual and heterosexual alike, have perfectly fulfilling sexual lives without ever experiencing anal sex. If anal sex is the only way we think gay men have sex, we need a better sexual education.

Less pedantic still. If we think that everything God said to the Hebrews applies to Christians, we need a better religious education. This prohibition falls squarely under "the Law," which the very first pan-Christian council decided did not apply to Christians (Acts 15). As a religion, we encountered, debated, and answered this question within ten years of Jesus' death. If you are Jewish, Christian, and gay, maybe this poses a religious problem for you. I couldn't say, not being educated in Jewish theology, let alone Jewish Christian theology. Now, to be sure, plenty of Christians take pieces of the Law as devotional activity, ranging from waving hands as part of worship to tithing. But I think Paul is clear in passages like Acts 13:38-39, Acts 15 (particularly vv. 23-29), Romans 2-8:11 (particularly 6:14), Galatians 2:15-16, and Ephesians 2:14-16 that no part of the Law applies to Christians except as they choose to adopt it. Which, to be clear, raises the further implication: that the Law may be used to infer God's view of pan-cultural morality only with the greatest delicacy.


Leviticus 20:13 ("If a man lies with a male as he lies with a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them."). See above.


Judges 19 (the story of the rape in Gibeah). Much of what is said of the story of Sodom applies here, although there is an additional wrinkle. For those who don't know the story, here's the gist of it. A man takes a concubine and displeases in some unspecified way, so she returns to her father's house in another city. The man, feeling remorse, goes to her and wins her back. On their way back to the man's house they stop at the city of Gibeah, where, not knowing any of the locals, they prepare to spend the night in the city square. A Gibean man takes pity on the strangers and invites them to stay at his house instead. As he is entertaining them, a mob of locals demands that he give up the traveler so that they can rape him. The Gibean host tries to placate the mob with his virgin daughter and his guest's concubine, but they will have none of it. In the end the host turns out his guest's concubine, who is raped to death. Her master finds her body in front of his host's house, her fingers stretched out towards the door. The man takes his concubine's corpse home and rouses the other eleven tribes of Israel against the entire city of Gibeah for permitting the crime. Gibeah's own tribe (Benjamin) rises to defend their tribe-mates, and the eleven tribes inquire of God whether they should go to war against all of Benjamin. God says yes. A bloody civil war ensues which almost sees the entire tribe of Benjamin wiped out.

Judges spends three chapters on the story of the rape, the civil war, and how the other eleven tribes manage to prevent Benjamin from dying out in the aftermath, so I think it's fair to say that the text of the story is not homosexuality. Still, if we want to focus on this one particular detail, it must be said that the Gibeans saw a man and a woman enter the host's house and demanded to rape not the woman but the man. The questions relevant to the instant inquiry are these: is this detail supposed to be evidence of Gibeah's depravity, and if so, should we take that as evidence that God finds homosexual sex depraved?

I would tentatively answer the first question yes. It's always dangerous to infer cultural attitudes from a single detail which is not the point of the story, but I think we have evidence in Leviticus that ancient Hebrew culture abhorred (or was thought by later Jews to abhor) male-on-male sex. However, I don't think there's evidence here for God finding homosexual sex abhorrent. For one thing, we're talking about homosexual rape here, which is not the same thing as sex at all (and even cultures which could view homosexual sex as a positive thing, as classical Greeks did, could view homosexual rape as a negative thing - you know, not unlike most people's attitudes towards heterosexual sex and heterosexual rape). But in addition, let's consider why this story is in Judges in the first place. Allegorically speaking, I think this is a story about God's wrath and restoration. The rest of Israel apparently found the rape and murder of the concubine unusually horrific; they rose against Gibeah "united together as one man" (Judges 20:11), which suggests the kind of mob mentality that only truly horrific crimes can inspire. That they have God's blessing to avenge the crime is explicit, and reinforced by the fact that despite Benjamin's initial success in the civil war God tells the other eleven tribes three times that they are doing the right thing. After the war is won the eleven tribes are distraught that Benjamin's resistance means the tribe will likely die out, and oaths taken during the war prevent the eleven tribes from intermarrying to repopulate the tribe. Judges then spends as much time as it spends on the war itself describing the ingenious solution the eleven tribes find to repopulate Benjamin without breaking their wartime vows. In other words, God will pound you back to the Stone Age if he has to, but even if he does he will raise you back up. Benjamin is pounded for failing to prosecute the rape and murder of a woman. To take all this story and say, "Thus, QED, God finds consensual homosexual sex abhorrent" is absurd.


Romans 1:18-32. This passage is too long to quote, and in any case I dislike quoting short passages Scripture except to adduce the larger context or where the passage really does stand on its own, as in the Levitican passages I quoted earlier. Paul's claim in this section is that all people know the essentials of God's nature from observing creation, and that when men turned to their various false religions, worshiping created things (e.g., storms, the sun, etc.) rather than the creator, God gave their cultures over to various forms of moral and cultural debasements, such as covetousness, murder, disobedience to parents, and gay and lesbian (both listed explicitly this time) sex.

In my mind this is among the strongest Biblical passages to support the proposition that God views homosexual sex as immoral. The argument goes something like this:

1. God does not inflict good things as punishments.
2. God inflicted gay and lesbian sex as a punishment.
3. Gay and lesbian sex are not good things.


Which is fine as long as that's a fair description of the passage. But Paul's aim here is not to give a list of immoral activities; his aim is to describe what it looks like when a society goes bad. So what are the "vile passions" with which men and women in a decaying society "burn?" Is it homosexual activity? Or simply infidelity? The Greek here could as easily be translated "husbands and wives," and if you replace homosexual activity with heterosexual activity the gist of the passage doesn't actually change. The problem here is that Paul doesn't simply say, "In these past corrupt societies, women had sex with women and men had sex with men." There is an element of lust to it. A non-religious view might cite that as evidence of cultural bias against homosexual activity (i.e., the stereotype that all homosexual activity is lustful), but as we are taking the religious view, that will not serve.

To illustrate the problem, take another example of the decayed society according to Paul: murder. Murder is not simply homicide. Homicide, as Paul points out elsewhere, and as religions of all stripes at all times have held, is not necessarily an immoral act. Paul gives the example of judicial execution of criminals as non-immoral homicide. When Paul lists murder as one of the things to which a decayed society is given over to, he is referring to a particular species of homicide.

So the question the reader of Romans 1 must answer is this: is Paul referring to all species of homosexual sex? Or merely to some species? If the former, we must ask ourselves why homosexual sex is listed with pejorative adjectives and adverbs whereas all the other behaviors a decaying society evidence are simply listed. If men having sex with men was, from God's point of view, for all cultures at all times and for any reason, wrong, why did God feel the need to say that men in a decayed society "burn in their lust for one another" (v 27) rather than simply saying that they have sex? Because God gets more worked up over homosexual sex than he does over other items in the list, such as being unloving, evil-minded, or unforgiving? I have a really hard time buying that.


1 Corinthians 6:1-11. In this passage, Paul remonstrates to the Corinthian Christians against the divisions that have sprung up among them, and how little they act as if they are all brothers and sisters (chiefly evidenced by their apparent zest for suing one another). In this context, he warns them that the unrighteous will not inherit the kingdom of God, and goes on to list several examples. Among these is are the infamous (at least in circles that discuss Christianity and homosexuality) arsenokoitai. I transliterate that word because it is difficult to translate. To get an idea for the problem, consider Shakespeare. Everybody knows that Shakespeare made up words. Most of the time we can figure out what they mean because they were either adopted into the language (and thus used by subsequent authors) or appear in the context of a sentence. Now imagine that Shakespeare made up a word that was not subsequently adopted into the language and appeared in a list of bad things, with no other context. What does that word mean? How would you know?

This is exactly the problem of arsenokoites. Maybe Paul didn't make it up, but if so, other contemporary books that used this word did us the disservice of not surviving to the present day. From its appearance in a list of bad things, we may infer with some certainty that the word refers to a bad thing. Its most literal meaning is men-fuckers, from which we may infer that, whatever its precise meaning, it involves fucking men. The word is grammatically masculine, from which we may infer with a strong degree of certainty that it refers to men fucking men. The dangers of interpreting it to mean all men who fuck men are illustrated by the word that appears immediately prior, malakoi. The same literal reading of malakoi would give us "men who are soft," which might be what Paul is saying (only rough, un-gentle men will inherit the kingdom of God?), but I think most people would assume that Paul has in mind a more idiomatic meaning. The same may well be true of arsenokoites. The reader who intends to use 1 Corinthians to demonstrate that homosexual sex is incompatible with the kingdom of God must demonstrate by what means he knows that arsenokoites refers to all men who have sex with men (and by extension, presumably, all women who have sex with women?).


1 Timothy 1:3-11. This is a similar sort of passage to the prior one. In it, Paul urges Timothy to exhort his local pastors not to weave their teachings overmuch with Jewish legend or draw too much implication from who begat who or other Old Testament Scripture, reminding him that the point of the Law is to point out what is wrong, not what is right. In this context, he says, the Law is made for "the lawless and insubordinate, the ungodly and the sinners ..." and goes on to list several examples. In that list, the arsenokoitai make another appearance. I don't find this context meaningfully different, for purposes of determining precisely who the arsenokoitai are, than the 1 Corinthians discussion.


Finally, let me address one point that is commonly made but I don't think is commonly properly rebutted. I often hear it said from proponents of gay marriage that God made homosexual people to be homosexual, and it would be ridiculous - not to mention blasphemous - to pretend that their homosexuality is therefore sinful. This argument has a fine ring to it, but when made in a Christian context I consider it, frankly, a child's argument.

I am personally willing to stipulate that God made homosexual people to be homosexual, by which I mean that whatever causes people to be homosexual, I believe that at least some of that cause is not attributable to the individual's choice. But it does not follow, in a Christian vein of argument, that because God made something it is good. Maybe in other religions it does follow; I don't know. But Christianity would have it that I was born corrupted, that no part of me (physical, mental, spiritual, big, small, etc.) was wholly good. God "made me" that way, in the sense that he caused the universe to work as it does and thus for my life to come into existence, every bit as much as he has hypothetically "made" homosexuals to be born homosexual. The fact that I was born a certain way does not mean that way is good. Only children believe that.

Now, of course, it is common in Christian circles (particularly evangelical circles) to conclude that some aspects of the good, purified version of yourself can be deduced from your natural traits. I think there's reasonable Biblical support for this notion. However, we must distinguish between this principle and the principle that because it exists (i.e., God made it), it is good. Let us suppose that I was born with a predisposition to tell stories, and also a predisposition towards depression. God gave me both traits; are they both good? On what basis might we say that one is a gift I should exercise and the other something I must struggle against my entire life? The Christian answer to that question is the nature of God; the answer to how we are to describe the nature of God is a holistic study of Scripture. It always comes back to Scripture. So let us suppose that I was born with a predisposition towards homosexuality. God made me that way, but on what basis might we say that my homosexual disposition is a gift I should exercise or something I must struggle against my entire life? It comes back to Scripture, which is why this post spends a lot of time on Scripture and very little on the "but God made me this way" argument.

So there it is, the Christian argument for gay marriage (or, more precisely, the argument that Scripture does not disclose that God considers gay marriage immoral) as I would articulate it. If anybody has made it this far, this is a post I would particular enjoy reactions to. The comment box is little used, but it does work.

Strauss v Horton

I apologize if the profusion of Proposition 8 posts is getting monotonous, but this is an issue I care about a lot, so I’m back for another one. Speaking to Ayudaren shortly before the election, he pointed out (or rather, his mother pointed out) that should Proposition 8 pass it would almost certainly precipitate an immediate federal court challenge. At the time, he wondered if this would be the catalyst that would finally force the federal supreme court to weigh in on the issue.

As it happened, the court challenge did materialize – but surprisingly, it was another challenge in state court. Strauss v Horton is the case, presently proceeding before the California supreme court, seeking to get Proposition 8 overturned.

When I first heard about this I was extremely skeptical. After all, a constitutional amendment cannot itself be unconstitutional. If the constitution explicitly says, “Marriage is between one man and one woman,” then that provision stands even though elsewhere the constitution says everyone has a fundamental right to marry. The effect of the two together is simply to define what that right to marry actually looks like. Declaring Proposition 8 unconstitutional on the basis of In Re Marriage Cases would be like declaring the 16th Amendment unconstitutional because Article I prohibits income tax.

Turns out, the plaintiffs’ argument in Strauss is rather more nuanced than that. They are arguing not that the substance of Proposition 8 invalidates it, but rather the way it was passed.

The California constitution can be explicitly altered in one of two ways: by “amendment” or by “revision.” An “amendment” may be put to the people by 2/3rds of the legislature, or through the initiative process. A “revision” may only be put to the people by 2/3rds of the legislature, who may also (again by a 2/3rds majority vote) put to the people the question of whether to call a constitutional convention to “revise” the constitution.

Both “amendments” and “revisions” require a mere majority vote once put to the people for ratification. The key difference is that only “amendments” may be put to the people via initiative, as Proposition 8 was. So the question is, was Proposition 8 an “amendment” or a “revision?” If the former, then all is well and the vote stands. If the latter, then Proposition 8 should never have been on the ballot to begin with and it will not stand.

Unfortunately the constitution provides not a word of guidance as to the difference between an “amendment” and a “revision.” Court cases are rather thin on the ground as well (you might imagine this sort of thing hardly comes up very often).

The leading case, Raven v. Deukmejian, 52 Cal. 3d 336 (1990), concerned an “amendment” put to the people by initiative. The amendment in question was 21,000 words long, substantially altered or outright repealed 15 of the 25 articles of the constitution, dealt with a very broad range of issues, and prevented the state supreme court from interpreting the state constitution in a more defendant-friendly way than the federal supreme court interpreted parallel federal constitutions (the normal rule being that a state supreme court cannot contravene a federal right as construed by the federal supreme court, but is otherwise free to interpret its state constitutional rights as it sees fit – a natural extension of the rule that a state’s supreme court is the supreme authority on that state’s constitution).

In holding that the Raven proposition was a “revision,” the court noted that it constituted a “broad attack on state court authority to exercise independent judgment in construing a wide spectrum of important rights under the state Constitution.” The court explained that telling the supreme court how to do its job (mandating that they use the same reasoning as used by the federal supreme court), and altering such a vast swath of the constitution were “far reaching, fundamental changes in our governmental plan.”

By contrast, twice before the court had held that propositions were actually “amendments” rather than “revisions.” One case (People v. Frierson, 25 Cal.3d 142, 184-187 (1979)) essentially put the death penalty back into the constitution, even though the state supreme court had previously held that it violated the fundamental right to be free from cruel and unusual punishment. That was held to be an amendment, not a revision. Another (Crawford v. Board of Education, 113 Cal. App. 3d 633 (1980), affirmed 458 U.S. 527 (1982)) essentially overruled a court decision that unintentional but de facto school segregation violated the fundamental right to equal protection. That was also held to be an amendment.

Putting these cases together, the picture that emerges is something like this: revisions constitute fundamental changes to the way our society is put together. Taking away the judicial power from the judiciary is a “revision.” Massive changes to the text of the constitution is a “revision.”

Proposition 8 is, on its face, neither of those things. It has only 14 words. It deals with one specific right (the right to marry) found in one specific section of the constitution. It has nothing to do with the allocation of powers between the branches of government; it alters the text of the constitution but, the supreme court remains as free as ever to interpret that text as it sees fit.

So how is it that the plaintiffs in Strauss argue that Proposition 8 constitutes “far reaching, fundamental changes” to our very plan of government? The argument goes that because homosexuals are a constitutionally protected “suspect class” (true in California, uniquely in America) and Proposition 8 takes away a “fundamental right” (the right to marry), Proposition 8 constitutes far reaching, fundamental change in the constitution’s underlying principle of equality. Moreover, plaintiffs argue, by denying homosexuals the right to marry, Proposition 8 takes away one of the court’s core constitutional roles (that of ensuring equal protection under the laws) and thus constitutes far reaching, fundamental change to our plan of government.

I am in favor of gay marriage in California, but I think these are bad arguments. They aren’t laugh-out-loud stupid, but I think they deserve to lose on their merits. In turn:

The first argument goes that taking away a fundamental right specifically from a suspect class is violating a core principle of our society, and that constitutes a fundamental change to our very plan of government. I do not think this is true. In the first place, Proposition 8 only sort of takes away the right to marry. It takes away the right to marry someone of the same sex, but it does not take away the right to marry someone of the opposite sex. Neither is Proposition 8 actually targeted at the suspect class. It applies equally to homosexuals, heterosexuals, those who wish to marry more than one person, and those who wish to marry partners who are neither men nor women. Of course it happens that at present there are far more homosexuals wishing to get married than people wishing to enter into plural marriages or non-human marriages, but that need not always be the case. There’s a big difference between “marriage is between one man and one woman” and “homosexuals cannot get married.”

I recognize that this argument may strike many as pedantic, though, so let’s grant for the sake of argument that Proposition 8 takes away a fundamental right from a suspect class. Is that really a fundamental change in the way our society works? Granting for the sake of argument that one of our democracy’s core principles is violated, is the very structure of the democracy itself overthrown or substantially altered? I don’t think so. Rights are not the same thing as structure. And while I recognize that taking a right away is different than not having it in the first place, it is difficult for me to imagine that returning things to the status quo of 2007 can constitute a fundamental change to our plan of government (in fact we haven’t even returned to the status quo ante; homosexuals remain a suspect class in California).

The second argument in Strauss goes that one of the traditional core roles of the judiciary is to ensure equality for all, and because Proposition 8 would take away the courts’ ability to ensure homosexuals the equal right to marry, it impinges upon the traditional core role of the judiciary and thus constitutes a far reaching, fundamental change in our plan of government. This argument seems wrong to me for a couple of reasons.

For one thing, it isn’t true that one of the traditional core roles of the judiciary is to ensure equality for all. The judiciary is supposed to ensure equal treatment before the law and, as I said above, Proposition 8 is a facially neutral law.

For another, I don’t see the difference between this argument and either Frierson or Crawford. In both those cases a supreme court ruling based on fundamental rights was invalidated by initiative. The court held those cases to be amendments, not revisions, even though it recognized that the amendments necessarily impinged somewhat upon the judiciary. Once again we have a case where an initiative would partially invalidate a supreme court decision founded upon a fundamental right. I don’t see a meaningful distinction between this case and those.

It is true of course that Proposition 8 takes away the courts’ ability to ensure that homosexuals (and heterosexuals) may marry a person of the same gender. But that is not the same thing as taking away the judiciary’s ability to ensure equality under the laws, or telling the judiciary how to think and reason. Homosexuals remain a suspect class under California law, and the judiciary is free as ever to apply strict scrutiny to legislation that targets or can be shown to have a disparate impact upon them.

Some commentators have made a third argument, which I do not believe has been formally made in Strauss but which deserves to be discussed nonetheless. This is the argument that fundamental rights should not be able to be taken away by a mere majority vote. Elsewise, some argue, the rights of the minority are not really protected from the majority. One could apply this line of reasoning to the amendment vs. revision issue to suggest that any change to the constitution disproportionately affecting the fundamental rights of a minority must be a revision. The constitution doesn’t say as much, of course, but isn’t it one of the fundamental principles of our society that the rights of the minority are protected against the tyranny of the majority?

I would argue not. It is true that one of the reasons society institutes constitutions and governmental branches like the judiciary is to protect the rights of the minority. But those are cases of the majority saying, “We would like to be restrained in the future from doing these certain things, and we shall appoint you, our servants, to restrain us.” The judiciary, and indeed the constitution, remain subordinate to the sovereignty of the people, which is controlled by the majority. If the majority really wants to throw off the restraints it has placed on itself, it is allowed to do so. There is no way to get any other result without also overthrowing the democracy.

This is not to suggest that the fundamental basis of the Strauss challenge is unfounded. It is not; the people of California have asked our servants to restrain us from throwing off certain restraints except in certain very specific ways, and it is absolutely proper for the supreme court to hold us to that. But it is to suggest that there is nothing inherently suspect about the 50%-of-the-electors threshold as opposed to the 66%-of-the-legislature threshold, nothing to suggest that something is a automatically a revision because it affects the rights of a minority.

I’m not nearly as close to this case, the facts and the precedent and the arguments, as are the justices of the supreme court and the advocates. It may well be that there’s something here I’m not seeing. But as I understand the law and the arguments, it seems to me that Proposition 8 really was an amendment, not a revision. I’m sure I’ll post further on this issue as it develops.

Proposition 8, Part Two

I wanted to take a moment to go back to the issue of Proposition 8, which I introduced in my last post. After some further helpful discussions with Marion and Thayet, I've decided how I'm going to vote (unless, of course, an unforeseeably persuasive argument is presented between now and November). Ordinarily I don't discuss these sorts of things, but ordinarily that's because I'm afraid of being ostracized for my unfashionable (in northern California) views, not because I think it's none of anybody's business.

So let me get this out of the way: I'm going to vote no on 8. This means I will be voting not to have the word "marriage" defined as pertaining only to a man and a woman for purposes of California state law.

Why am I telling you this? For two reasons. One, because I hope that my friends who read this might find my reasoning useful if they haven't made up their own minds already. Two, because I hope that this post will help promote tolerance of conservative Christianity in anybody who reads this, friend or not.

I should be clear that I don't mean "tolerance" in the all-too-fashionable modern senses of either a) relativity or b) acceptance. I mean "tolerance" in the sense of live-and-let-live, and hopefully, in the sense of understanding. My hope is that at least one person who hates, is frustrated by, cannot comprehend, or otherwise is unable to engage with theologically conservative Christians on the issue of gay marriage as fellow constituents of The People (both of the state of California and of the United States) will read this post and come away with at least marginally less hatred and frustration, and a little more comprehension and ability to engage. Maybe even some empathy.

If this is going to work I'll need to explain a few things about myself theologically. Friends and family can skip this paragraph, but for our hypothetical new readers, a few salutary identity statements are in order. First, I'm a Christian. I have been so, in a thinking sense, for something like 15 years. I am a Pentecostal Christian (actually Charismatic, if you care to make the distinction). I am an evangelical Christian. I speak in tongues (or, for the skeptics, I believe I speak in tongues). I believe in modern-day prophecy, and I believe I have engaged in it myself. I believe that Jesus is the only route by which human beings may be saved. I believe that homosexual sex saddens the heart of God (I have a rant reserved for people of any stripe who think the Bible expresses any views whatever on homosexuality, or on being homosexual, or on homosexuals, but I'll spare you). I should also mention, in case anybody cares, that I hold a bachelor's degree in classics and a juris doctorate, both from Stanford.

If none of these facts strike you as at all incongruous with the fact that I am voting against Proposition 8 then you might as well stop reading now; this post is not for you. Otherwise, I hope you will find it edifying to know why somebody with my religious background intends to vote as I do.

Table of Contents
Arguments I Credit
1. The Political Focus of Christianity
2. Moral Priority in Christian Thought
3. What’s Loving?
Arguments I Don’t Credit, For
1. We Need to Defend the Dignity of Marriage
2. We Need to Protect the Institution of Marriage
3. Homosexual Marriage is Wrong
4. Restoring the Right of the People
Arguments I Don’t Credit, Against
1. Proposition 8 is Unfair
2. Equality
3. Marriage is a Fundamental Right
4. Gay Marriage is Coming

Arguments I Credit
1. The Political Focus of Christianity

Let's start with the positive. The telling question, for me, is this: what should the main goal of Christianity be in a democracy? As a devout Christian, I might phrase that question another way: what do I think is God's main goal for America?

There are plenty of answers a conservative Christian might have to the question of what I think God's goals are for America. Peace, within our borders and with other countries. A reduction in the total incidence of sin in the nation. An increase in the lovingness Americans have towards their fellow men. Improvement of the public morals. That all Americans choose to become Christians. But the answer to the question of what the main goal is, I think, has to be this: that Americans fall in love with Jesus and then begin to become more like him.

I submit, then, that the basic question an evangelical Christian should ask is this: which way will Proposition 8 tend to push the Californian (and perhaps the American) public? Towards falling in love with Jesus? Away from falling in love with Jesus? Neutral?

Given the highly charged nature of the amendment, I think we can do away with neutral.

If Proposition 8 passes, how will people tend to view the Californian church (and, by extension, California Christians like me)? Will they tend to see us as a people who love all human beings, regardless of identity or behavior, and seek their good? I don't think they will. I think they'll tend to see us more as paranoid bigots, and frankly just plain mean social bullies. And they will tend to see Christ the way they see us.

Now of course that isn't fair, or remotely intellectually honest. Christ is who Christ is (or again, for the skeptics, Christ isn't who Christ isn't) regardless of how people who call themselves Christians behave. But that's the way it is, and indeed we are explicitly charged with acting like Christ to the world around us, so fair or not (idiotic or not) I think that's how it should be. I think it's clear that Proposition 8 will hinder, rather than help, the people of California and America from seeing in Jesus as he really is and falling in love with him. As a result, I oppose it.
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2. Moral Priority in Christian Thought

A word deserves to be said here about the order in which I think Christians should be concerned about moral issues. Recall that I said “that Americans fall in love with Jesus and then begin to become more like him.”

I didn't say, “For people to begin to become more like Jesus and then fall in love with him.”

Because it isn't supposed to work that way. Christian morality - the principles that govern right and wrong behavior and interpersonal interaction as we see it - is not supposed to be prescriptive. That's orthopraxy, and we are not an orthopraxic religion. Antilles explained it to Violet perfectly way back when we were freshmen in Rinconada: Christian morality is supposed to be voluntary, and given not from the fear of disobedience but from the joy of doing what pleases God. This is a perfectly ordinary dynamic of human relationships, but the opposite perception is rooted so deeply in American culture that I need to make it explicit here.

It isn't that I think who you have sex with is a morally neutral issue; I don't. It also isn't that I think the moral propriety of who you have sex with is determined solely by whether or not the two of you love and are committed to one another; I don't. But who you have sex with is much less important to me than whether I am helping or hindering you from seeing Jesus as he really is and falling in love with him.

Let me deploy a bit of Christianese here. We say in Christian circles that God sees the heart. We also say that God judges the heart. Let us now stipulate, for the sake of argument, that God doesn't like homosexual sex. Would he then be pleased with a society where people want to have homosexual sex but don't because it's illegal? Of course not. Would he even care that it had been made illegal? I doubt it.

Of course, making it illegal could possibly reduce the number of people who want to do it. If we had any credible reason to believe that I might even support the amendment. But we don't - and we have lots of reason to believe precisely the opposite.
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3. What’s Loving?

You’ll notice I said that I don’t think God would care whether we made homosexual sex illegal. It’s a short jump from there to saying that I don’t think God will care if we make homosexual marriage illegal. I make that jump. If Proposition 8 passes I don’t think God will be pleased. I don’t think it will increase the numbers of people acting out of a desire to please him. If anything I think it will do the opposite, and God will find that a tragedy.

So far I’ve said I think the California public will unfairly judge Christians if Proposition 8 passes, and that I don’t think passing it will please God or cause people to please him at a greater rate than they presently do. Not exactly compelling, morally epic reasons for voting against Proposition 8.

Here’s what I think is the most compelling, morally epic question to ask. I hinted at it earlier: what’s loving?

What is the loving thing to do for our homosexual fellow-citizens?

I probably wouldn’t be asking this question if I thought that passing Proposition 8 would be pleasing to God (instead I’d be asking what was the most loving way to pass it), but I don’t. So I am asking this question, because my conviction that passing Proposition 8 will not please God gives me the wonderful freedom to do so. And in fact I think it is partly in order to give me the freedom to choose the loving thing to do that God feels as he does on the issue of Proposition 8.

As a lawyer, I can’t help but feel it’s a little bit silly to care so deeply about what name the state government puts on your paperwork (which is, as I’ve said several times already, all this proposition actually amounts to). But as a man, and a married man at that, I understand. The name does matter to the heart, and it matters even if it’s only the state government using the name. It would matter even if it were one individual using the name. Maybe it matters more than it “should.” But it matters, and that’s the important thing.

I do not support homosexual sex. I am sorry if that makes me an unfeeling ogre or a hopeless yokel in some people’s eyes. My commitment to Jesus’ will as revealed in Scripture is what it is, and my reading of Scripture is what it is. I cannot change my principles, and so far my reading of the text has not changed (although of course it could, and of course I am open to debate on the point).

What I can do consistent with my principles is vote against Proposition 8. I am sure that this seems a very poor gift to many, who wish that my principles or my reading of Scripture were different, or both. But it is the only gift that I have, and I give it freely.
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Arguments I Don't Credit, For
1. We Need to Defend the Dignity of Marriage

I'll be honest, I'm not exactly sure what this one means. The dignity of marriage? Who gets married because they want to lay hold of some dignity? I certainly didn't. I got married because I was in love with my wife, because I wanted to honor that love by strengthening it every way I knew how, and because God told me to do so.

If that's what people mean by “the dignity of marriage,” then I'm not really see how Proposition 8 is relevant at all. So maybe I'm going at the problem backwards. What will Proposition 8 weaken? Maybe if I can identify that, I'll know what people mean by “the dignity of marriage.”

As you know or should know by now, Proposition 8 is solely a question of names. It isn't a question of the rights afforded to homosexual couples; that was settled in 2003 with the Domestic Partnership Act. I also doubt very strongly that it is a question of societal acceptance. If constitutional amendments could dictate how society feels about certain groups, then the history of the civil rights movement from 1865 onward would have been radically different.

But what Proposition 8 is a question of is a question of how broadly the word “marriage” can be applied by the state of California. Which means that the thing - the only thing, in my view - that it will weaken is how exclusive is the right to have the state government call you “married.”

I italicize state government because it’s important to remember that the constitution does not, by and large, affect the behavior of non-state actors. If Proposition 8 passes, individual citizens will still be perfectly within their rights to call homosexual couples “married.” If Proposition 8 does not pass, individual citizens will still be perfectly within their rights to refuse to call homosexual couples married. Doing either of these things might be considered deeply insulting to some people, and also may create some verbal confusion. But there is nothing illegal or unconstitutional about individual citizens being deeply insulting to some people or using imprecise and improper terms to discuss legal concepts. Both of those happen all the time; the campaigns around Proposition 8 are themselves perfect examples.

Some people will object that this point is splitting hairs. Perhaps those people feel a deep desire to conform their behavior even to those areas of the constitution which do not apply to them, whether or not doing so agrees with their principles. That’s fine, and maybe even admirable, but it’s their choice to act as if they are bound by something which does not purport to bind them. Perhaps instead there are some who feel that, as a practical matter, society will over time tend to follow the constitution. That may be so, but if that movement of society’s overrides society’s principles, then shame on society for not having the moral fortitude to stick to its guns.

So it is the state government alone upon whose actions we are being called to vote restrictions up or down. Let us try to imagine the state of mind of someone who thinks that because his right to be called “married” by the state government is now less exclusive than it was his marriage has less “dignity.” What can we say of this person's state of mind? Quite a lot, I imagine, and little of it flattering. I submit that we can definitely say he is not viewing the world or his place in it as Christ sees it. And so I decline, as a Christian, to think that way.
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2. We Need to Protect the Institution of Marriage

This is a subtly different argument from the “dignity” one, but ultimately I pay it no more heed. The argument here goes that the institution of marriage has some benefit, and that Proposition 8 will somehow reduce that benefit.

What benefits does marriage have? Certainly it has personal benefits. Will Proposition 8 reduce those? I think the analysis here is the same as it is for dignity. No, it will not, because Proposition 8 does not speak to the individual.

Marriage also has societal benefits. Will Proposition 8 reduce those? I submit that it will not. If there were any sort of credible research consensus that homosexual families are less likely to produce valuable citizens than heterosexual families, then I might consider voting against Proposition 8 on that basis. But to my knowledge no such consensus exists (though there are some conflicting studies both ways). My personal expectation is that with another couple decades of data available, homosexual families will turn out to be every bit as lousy at turning out valuable citizens as heterosexual families have, but only time will tell.

In any case, Proposition 8 will not alter the existing equality between homosexual and heterosexual families as child-rearing units. Homosexual couples did not gain any child-rearing rights when In Re Marriage Cases was decided, and so Proposition 8 will not take any child-rearing rights away.

Some people argue that we need to preserve the institution of marriage because upon that rock our whole society is founded, and without it our society will flounder. What they really mean by “preserve” is restricting the class of relationships the state government calls “marriage,” which I think makes this argument look pretty silly just on its face. But because a lot of well-meaning people seem to put a lot of stock in this interpretation, let me spend some more time with it.

First off, I’d like to point out that we have enacted lots and lots of laws that could be viewed as undercutting the institution of marriage. No-fault divorce means legalized adultery – the law cares not one whit who my wife sleeps with. Don’t we think that undercuts the institution of marriage pretty strongly? The elimination of bastardy laws means marriage no longer confers the right to have legitimate children. That one looks pretty heinous from the perspective of, say, six hundred years ago. Or how about separate property states? You mean to tell me that my wife and I are one flesh but our property stays separate? Blasphemy!

And yet, somehow, society has endured.

Second, I’d like to point out that the institution of marriage is not the rock upon which our whole society is founded. As a Christian, I do not believe that marriage is what ultimately upholds and preserves the United States of America. As a Christian, I believe that Jesus Christ is what upholds and preserves the United States of America, as he does the rest of existence. He is my rock, not the laws of my state or even my country. Now of course, that’s no excuse to move my country in ways that will displease him. But as I explain throughout the rest of this post, I don’t believe that voting against Proposition 8 will displease him.

So far I have skipped what some might consider an important Christian objection to the benefits of marriage. That is because I think it deserves its own topic, and I turn to it next.
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3. Homosexual Marriage is Wrong

This is my way of phrasing the objection that homosexual marriage is simply sinful, and therefore ought to be outlawed. I don't credit this objection, but I consider it very serious, so I want to give my views of it in some detail.

To begin with, I don't think that homosexual marriage is sinful, and I don't think the Bible thinks that either. I promised to spare you my rant on this subject, so for the moment allow me to simply state in conclusory fashion that the Bible thinks homosexual sex is sinful (I will also spare you my rant on the misperceptions, unwarranted enlargements, and abuses of the word “sinful”). As I understand it, plenty of marriages involve practically no sex or very infrequent sex, and I see no reason to believe that homosexual marriages will turn out to be any different. But let us for the moment, and strictly for the sake of argument, conflate marriage and sex, as so many do. Ought we then to outlaw homosexual marriage, on the basis that it is sinful?

As a matter of positive law, we don't outlaw lots of things on the mere basis of sinfulness. We don't outlaw covetousness or adultery at all, and we outlaw only certain kinds of lying. We also don't outlaw being non-Christian or blaspheming the Holy Spirit. Some of these, of course, present practical difficulties - how exactly do you write a bill outlawing “blaspheming the Holy Spirit” or “covetousness?” But others - such as adultery - are the sorts of things that are perfectly easy to outlaw, and indeed have been outlawed in the past, and we don't outlaw them today despite what I suspect would be a national consensus that they are indeed at least usually morally wrong.

There is a sense that some Christian circles sometimes develop that we ought to reduce the total instance of sin in our land. Now, don’t get me wrong, I agree that a reduction in the total instance of sin in America would be good for the nation, as it would be good for any nation. But have we ever, as Christians, been called by God to effect that reduction on a national scale? I submit that we have not.

One thinks immediately of passages like 2 Chronicles 7:14: “if My people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land.” This is a promise which was spoken to Hebrews rather than Gentiles, as most American Christians are, but I would agree that it portrays something timeless about the heart of God. I would also agree that America is my land, within the meaning of the promise. But the passage does not call for me to make “my land” turn from its wicked ways. It calls on My people who are called by My name. The promise is not that God will heal America if I stop my non-Christian neighbor from being in a gay marriage. The promise is that God will heal America if I, and other Christians, will humble ourselves, pray and seek the face of God, and turn from our wicked ways.

Another way to arrive at this same conclusion would be to simply ask what sin is, and whether Proposition 8 bears on sin at all. Sin is not fundamentally an action, as I think we all know. Again, for the sake of argument, let us stipulate that gay marriage is sinful. Would a man in such a universe who wished with all his heart to be married to another man be any different from the man in Matthew 5:28 who looks at a woman wishing with all his heart to have sex with her? Of course not. The existence or absence of a legal barrier to gay marriage is immaterial to that question; the essence of sin is in the heart. The state constitution has no sway, and does not purport to have any sway, over the hearts of the residents of California.
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4. Restoring the Right of the People

This one usually starts something like “four activist judges …” and references the fact that 61.4% of Californians voted Proposition 8’s exact language into law in 2000. I’ve harped on this before, so I hope nobody reading this is so ignorant as to believe that a statute passed by initiative is immune to judicial review. The easiest counter-example is to imagine that 61.4% of Californians had voted into law in 2000 language that said, “All persons of African descent shall be chattel property in California.” Suppose a majority of the California Supreme Court struck down that law as violative of the constitution. Would it be valid to say, “But 61.4% of Californians voted for that law?”

Of course not. Constitutions take certain laws off the table no matter how many people vote for them. That’s what constitutions do; it’s what they’re for. And one of the most important jobs of a supreme court is to announce when a law has crossed the line into unconstitutionality. That’s all In Re Marriage Cases was.

Now of course, the people are allowed to disagree with the supreme court. If they do, they’re supposed to enact a constitutional amendment to clarify their position on what the constitution says or should say. That’s exactly what Proposition 8 is; it’s asking the people of California whether the state supreme court got it right, or whether they disagree with the court’s reading. We’ll find out soon enough if the people of California still feel the way they did in 2000, or if they have changed their minds. In the meantime, it’s idiotic to argue that because the people voted one way in 2000, they should vote the same way in 2008.
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Arguments I Don't Credit, Against
1. Proposition 8 is Unfair

Working in San Francisco, I hear this one a lot. “Vote no on 8; it’s unfair and wrong.” This one makes no more sense to me than the “dignity of marriage” objection on the other side. “Unfair?” By what benchmark? By the benchmark that says “marriage is for all people?” That’s begging the question.

Begging the question is hard to avoid in the debate over Proposition 8, because a lot of that debate boils down to what people think the word “marriage” means or should mean. That’s no excuse, though. If you assume that marriage is for all people then yes, Proposition 8 is unfair. But whether marriage is for all people is precisely what the people of California are being asked to decide. It does not add to the debate to simply repeat one’s conclusion that yes, marriage is for all people. That does not tell people why one thinks that. It isn’t an argument. Understandably, I find it unpersuasive.
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2. Equality

This one is also popular, because of the unspoken rule that you can’t vote against “equality” in America without being an ignorant bigot.

Of course, you can vote against equality. The principal of equality we’re supposed to hold to is treating equal things equally. We don’t object to the inability of committed 14-year olds to marry because we have some sense, as a society, that 14-year olds are different than adults. If they’re different, they have no claim to being treated equally. We would object to the inability of interracial couples to marry because we have some sense, as a society, that race is not a material difference when it comes to marriage.

Many opponents of Proposition 8 believe that homosexuality isn’t a material difference either. I happen to agree with them in many respects. But this isn’t an argument; it’s a conclusion. Again, the question is what the people of California think marriage should mean. To rephrase, the question is whether the people of California think homosexuality is a material difference. If a person is unsure, then it does no good to throw the equality slogan in that person’s face, because the equality slogan assumes that homosexuality is not a material difference. It’s begging the question.

A similar issue is the “discrimination” slogan. “It’s about discrimination and we must always say NO to that,” says Senator Feinstein. Stirring words, but plainly untrue. We discriminate between minors and adults, and nobody complains about that. Why? Because we think majority is a material difference; it justifies different treatment. Apparently Sen. Feinstein thinks homosexuality is not a material difference. That’s fine, but again, it isn’t an argument. It’s just begging the question and hoping that people won’t notice.
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3. Marriage is a Fundamental Right

This is a slightly more intellectually coherent version of “Proposition 8 is unfair.” This argument goes that marriage is a fundamental right, and so we shouldn’t take it away. Sometimes it’s phrased as “restricting the freedoms” of homosexuals, or something like that. And we in America Do Not Take Away Fundamental Rights.

This one seems to have a lot of traction among the people I hang out with, but I cannot for the life of me see what is so persuasive about it.

For one thing, we do take away fundamental rights. We take away the fundamental rights of criminals all the time. Oh, but they did something to deserve it, comes the objection. We don’t take away the fundamental rights of people just because of who they are! This is America!

Except that of course we do take away the fundamental rights of people just because of who they are. Committed fourteen year olds cannot marry, though marriage is a fundamental right. Uncommitted eighteen year olds can. An eighteen year old man has a fundamental right to marry a forty year old woman – but not if she’s his mother. Or already married. Why take away the fundamental right of the one and not the fundamental right of the other? After all, it’s a fundamental right, right? Fundamental!

Marriage may be a fundamental right, but that doesn’t tell us who the right should extend to, and who the right should extend to is the question at issue. So it does no good to prate on and on about how marriage is a fundamental right. That is true, but utterly beside the point.

Now of course it is true that, in a very literal sense and if one holds to a certain kind of legal philosophy, Proposition 8 is “taking away” the fundamental right of homosexuals to marry (i.e., have the state government use the word “marriage” in reference to them if they jump through certain hoops) in California. But it is insidious in the extreme to label invalid, on that basis alone, the efforts of those trying to do so.

That is, from a legal realist’s standpoint. If we stick to the way the law views itself, then Proposition 8 isn’t taking away anything at all. It’s simply correcting the state supreme court’s reading, pointing out that “in fact” homosexuals have never had a fundamental right to marry in California. As a matter of legal fiction, the right to marry guaranteed by the California constitution has always applied to homosexuals. That’s an important legal fiction and too few people give it the weight it deserves.

But if we put our realists’ hats on, we can recognize that the California right to marry had not been interpreted as applying to homosexuals until 2008. We can further recognize that, in reality, four human beings read the state constitution and said, in effect, “Wow, I never noticed this, but this right applies to homosexuals! Who knew?!” From a certain point of view, those four human beings “conferred” a right upon homosexuals by reading the constitution in that way.

If Proposition 8 passes – if the people of California in effect say to our supreme court, “No, that is not the way we want our constitution to be read” – then, from that same certain point of view, the people of California will have “taken away” a right from homosexuals. I recognize that. I get that.

But here’s the thing. The people of California must be allowed to do so. Otherwise the final say as to what the constitution means lies not with the people of California, but with the state supreme court. That strikes at the very heart of what a constitution is supposed to be: the supreme expression of the will of the people. It is precisely because the constitution is the supreme expression of the will of the people that the supreme court invalidated a law passed by popular vote to begin with. You cannot have it both ways. If the constitution is the supreme expression of the will of the people, then In Re Marriage Cases was validly decided, and the people of California must be allowed to “take away” the fundamental right of marriage. And if the constitution is not the supreme expression of the will of the people, then by the same fundamental principles that justified the Revolution the people are not bound by it, and marriage is not a fundamental right at all.
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4. Gay Marriage is Coming

This is my category for the class of arguments that say, in one form or another, “Gay marriage is coming whether you like it or not, and we should help social change along with the constitution.” I want to distinguish it from the class of arguments that say, “Gay marriage is coming whether you like it or not, and we should keep the constitution in line with social change.”

The latter I think is a perfectly reasonable statement, though it doesn’t tell one how to vote on Proposition 8. The former, though – the idea that we should use the state constitution as an instrument to promote social change – is deeply distasteful to me.

As I’ve said elsewhere in this post, Proposition 8 applies only to the behavior of the state government. Nevertheless it is natural for many people on both sides of the debate to view it as a proxy for social change. Boiled down to its essentials I think the hope is this: that guaranteeing the right of homosexual couples to be called “married” by the state government of California will strike a blow for the ultimate cause of homosexuals not being seen as abnormal by private individuals.

And the truth is that maybe it will. People are weird like that. But I don’t think it should, and I think it evinces a deep disrespect for the rule of law to alter the state constitution in the hopes that it will change the beliefs of private individuals. That’s not how I want my constitutional law to be made.

One might object that, on this philosophy, I ought to object to the 13th, 14th, and 15th amendments. That is not so. I would encourage somebody to vote for those amendments if they were of the personal conviction that slavery ought to be abolished in America, that the rights of the federal constitution should be imposed upon the state constitutions, that the franchise should be extended irrespective of race, etc. But I would have objected to somebody voting for those amendments because they hoped by doing so to force people to change their minds.

That is not to say I think people should not try to change their fellow citizens’ minds. It is to say I think they should have the courage to do so through debate and example rather than the coercion of the laws. It is not to say I think that no law should be voted for which may compel a person to act contrary to his personal beliefs. It is to say I think no law should be voted for because it will compel a person to act contrary to his personal beliefs, in the hopes that eventually he will give his beliefs up.
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Proposition 8

In less than two months California voters will go to the polls for the general election, and a little after that there will be crying and screaming and much gnashing of teeth. People will rant about our inevitable doom as a country and rail against the direction America is set upon for the next four years. I wish that elections didn't evoke these kinds of reactions in people, but they seem to do so with fair consistency, so there it is. Ordinarily I try to stay above it all, especially here.

I'm going to give in a bit today, though, and direct my own small tirade against the hype surrounding Proposition 8. Proposition 8 is the constitutional amendment version of Proposition 22, which defined marriage as between a man and a woman. You may recall that the California Supreme Court held that proposition as violative of the California constitution in In Re Marriage Cases, which I posted my response to on May 19. Proposition 8 would make the following words part of the California constitution:

Only marriage between a man and a woman is valid and recognized in California.

This is the exact same text as was in Proposition 22, overturned in In Re Marriage Cases. If you will recall, In Re Marriage Cases said that the California constitution prohibits such a law. The obvious reply, for those who have a problem with that reading of the constitution, is to change the constitution.

So far, all well and good. This is exactly how our legal system is supposed to work. No chicanery yet.

The chicanery comes when the proponents and opponents of the proposition try to convince voters to see things their way. No, scratch that. To vote their way. I have no idea whether true proponents and opponents of Proposition 8 really see things the way they spin things. I sure hope not. Here are some of the things I've seen thrown around about Proposition 8 that have really ticked me off:

It's about equality. This one seems to be the big pro-8 line, and it isn't nearly as bad as many of the anti-8 lines. Is Proposition 8 about equality? Well, maybe it is and maybe it isn't. What kind of equality? It certainly isn't about equal rights. If Proposition 8 passes the state will revert to the status quo ante In Re Marriage Cases. Under that regime, the state has two parallel relationships: "marriage" (available to opposite-sex couples only) and "domestic partnership" (available to all same-sex couples and opposite-sex couples where at least one partner is over the age of 62). The two relationships are entered into in different ways, but they have the same rights. In case that was confusing I'll put it a different way: they're called different things, but they have exactly the same rights.

Of course one might think that Proposition 8 isn't about rights equality. You might think it's about social equality, and that things that are substantively equal should be called the same thing as well. If that's the kind of equality you're talking about I'm not going to call you stupid. I'm not going to call you obviously right, either, because I don't know that I think the constitution should have any business telling people what they should name something. Imagine if somebody put a constitutional amendment on the ballot that specified one and only one term that could properly be used to refer to African Americans. Legal, sure. But a good idea? I'm not so sure. Of course, the constitution won't be telling me what I have to call same-sex couples. Even if Proposition 8 passes, I could legally call them Dell laptops for all the constitution would care (doing so would probably make me a jerk, but the constitution doesn't care if I'm a jerk or not). Still, if social equality is the real issue here (and I think it is), should we be satisfied before society's terminology changes, even if the constitution's has? I doubt it. Is it a good idea to alter the constitution in hopes that people's terminology will follow? Maybe. Not so sure, myself.

It's correcting the outrageous decision of four activist Supreme Court judges. As a lawyer, this one really makes me mad. First off, it wasn't four judges on the Supreme Court who overturned Proposition 22. It was the Supreme Court. People who keep throwing the number "four" around tick me off the same way as do people who claim that only half the country elected the President. The American people elected the President, whether all the individuals comprised of that body voted for him or not. People who think otherwise need to go read Plato's Crito, preferably after being beaten about the head with it.

Second, the decision wasn't outrageous, and throwing that term around will not make it so. It was a tough case, and the legal issues presented were not obvious (nor were they the social issues people have pinned on the case. You can't crucify a justice for being "outrageous" or "activist" on the one hand and for not deciding issues that were not before the court on the other. Pick one). Give the justices some credit for trying to do their job in a difficult situation.

Third, the justices were not being "activist." The justices in Brown v Board of Education (mandating school de-segregation) were being "activist;" they ignored the legal arguments with the most merit and instead did what they thought was right. Everybody agrees about that for that case. That is judicial activism. The justices in In Re Marriage Cases were asked to say what the constitution says when it says that Californians have a "right to marry." A right to marry who? asked the litigants in that case.

Put yourself in that situation for a moment. A gay couple wants the right to claim the title "married" under California law. They claim that the constitution says they have such a right right now, and indeed has always said that, whether anybody bothered to recognize it or not. Somebody else comes along and disputes that, saying the constitution says no such thing and never has. You are empowered, under the most ancient of American legal traditions, to resolve the dispute as to what the constitution says. If you agree with the gay couple, that the constitution does indeed say that they have a right to marry and always have - and if that is your honest reading of the constitution - are you being an "acvitist?" How can you possibly get more conservative than simply telling people what the constitution says? If you agree with their opponent, that the constitution doesn't say that at all - are you being any more or less judicially conservative than in the first case? You're doing the exact same thing. It's methodology, not conclusion, that should define whether we call a justice "activist" or not.

It will restore the will of the people. This one sounds nice because Americans love to rage against elitism. But seriously. The justices said that Proposition 22 is in violation of the constitution. If the constitution is not the ultimate expression of the will of the people, what is? If 61.4% of "the people" voted for an initiative that said, "All black people shall henceforth be chattel property" would we allow it? Would we say, "13th and 14th Amendments be damned; The People Have Spoken?" Of course not. The people have indeed spoken - when they adopted the constitution.

Oh, but you didn't vote for the California constitution? Well, no, you didn't. If you think that matters, and you still in live in California, you deserve to be beaten with the Crito until you are black and blue.

It will make our children be taught that same-sex marriage and opposite-sex marriage is the same. I'm pretty sure our kids are taught in school that men and women are equal already. As far as I know they can still the difference between the two.

But look, I get this one. Truly, I do. I get the gut-wrenching feeling that your kid is in a public school being taught a legally mandated curriculum which includes a worldview that isn't yours. And I don't even have kids yet. I'm sure I'll feel that gut-wrenching feeling a million times more strongly when I do have kids.

But here's the thing: that's part of education. I went to a Catholic school, and I had my view of Catholics exploded by people like Judith Langford who were hardcore, devoted Catholics and honest-to-God born-again Christians and genuinely "good people" in the popular sense of that overused phrase. I did not come out of that school thinking that dead people can hear me when I address them, or that Mary was without sin, or with my view of the Pope's spiritual authority altered one iota. Were all of those things taught to me in the school's mandatory religious curriculum? Yeah. And yet here I am, a thoroughly non-Catholic (though not anti-Catholic) Christian.

I was force-fed something I didn't believe in in school. And instead of being brainwashed by it or rejecting it like a bigot I learned to use it to challenge my own beliefs, to better understand the people who held that belief, and to feel compassion for them as human beings. I'm going to go so far as to say that this is one of the three critical life skills that K-12 school is supposed to teach you, and by far the most important (the others being how to write an analytical essay, and how to do algebra).

So what if your kid is forced to learn something at school you don't believe in? Is that bad? Is that to be avoided? I really don't think it is, and I mean that in all seriousness. Yes, parents are supposed to reinforce their worldview in their children. I think people who think otherwise are lunatics. But school is not parents. Kids are supposed to be exposed to different worldviews in school. Many of those worldviews are going to be garbage. That's okay. It may even be helpful. Parents have a responsibility to reinforce their worldview in their children, but they also have a responsibility to do so in a way that does not turn their kids into straitjacketed bigots who can't function in any world other than their own. If you think you can do that without having your kid be exposed to other worldviews, good luck to you.