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On Tuesday, Utah became the first state to petition the Supreme Court to review a state same-sex marriage ban since the court overturned the federal Defense of Marriage Act (DOMA) last year. On Thursday, the Utahns who successfully challenged their state ban asked the court to hear the appeal, citing the importance of the issue.

I hope Utah gets its way. After all, that’s where the Supreme Court first involved itself in marriage law — back in 1878, when it held that the constitutional right of religious free exercise did not permit Mormons to practice polygamy. It would only be appropriate for the court to make its constitutional position on same-sex marriage clear in a Utah case.

In their petition, Gov. Gary Herbert and Attorney General Sean Reyes actually evoke Mormon polygamy. Advancing the view that there are competing “adult-centered” and “child-centered” views of marriage, they write, “Those who favor redefining marriage as the union of any two or more persons see the institution primarily from an adult-centered perspective.”

I don’t think Mormon polygamists past and present would go along with that proposition, not with respect to that “or more” part. In his original revelation concerning plural marriage, Joseph Smith explained the practice this way: “for they are given unto him to multiply and replenish the earth, according to my commandment, and to fulfil the promise which was given by my Father before the foundation of the world, and for their exaltation in the eternal worlds, that they may bear the souls of men; for herein is the work of my Father continued, that he may be glorified.”

I’d say that view was more child-centered than adult-centered, and more God-centered than either. Be that as it may, the petition takes its stand on the long-recognized prerogative of states to determine marriage law — a prerogative that, in fact, the court harkened to in overturning the federal DOMA.

Accordingly, Utah has long exercised its power to define marriage. To become a state, Utah had to adopt an “irrevocable” constitutional provision that “forever prohibited” polygamous marriages and made adherence to monogamous marriage (understood to be between one man and one woman) the only alternative.”

Let’s be clear about this. Utah had to adopt that irrevocable constitutional provision because the federal government wouldn’t let it put in place the kind of marriage law that the residents of the state-to-be wanted to adopt. Some prerogative.

The real legal issue here, however, is not whether states can make their own marriage law but whether the Fourteenth Amendment’s guarantee of equal protection gives the federal courts the right to intervene. That it does give the federal courts the right to do so was recognized back in 1883 when, in Pace v. State of Alabama, the court upheld Alabama’s anti-miscegenation law on the grounds that, because the law punished the white and black spouses equally, it did not run afoul of the Equal Protection Clause.

Eighty-four years later, in Loving v. State of Virginia, the court decided that state anti-miscegenation laws did in fact violate the Fourteenth Amendment. Now, in an unbroken string of decisions over the past year, lower courts have similarly held that the Fourteenth Amendment bars state anti-same-sex marriage laws. Will it be Pace all over again, or Loving?

I’m betting on Loving.

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Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

31 Comments

  1. Sorry anti-marriage equality supporters, you just shot yourself in the head.

    The LAST thing the anti-gay people wanted was a national level Equal Protection argument to be made on the subject. Plus the arguments for bans on gay marriage not only lack a rational or secular basis, but based on very legally obsolete views of marriage as every Federal District and Appeals have pointed out in 20 states so far.

    Kennedy, despite being the man most to blame for the last two really stupid SCOTUS decisions (Hobby Lobby and Citizens United) is firmly on the side for marriage equality. He is not going to overturn himself. That makes 5.

    You guys better hope SCOTUS doesn’t grant certiori.

  2. Humanity loses when children do not have a stable, mother- father home. Humanity loses when we degrade marriage to allow for people of ten same sex to get ” married.”

    • Do you know why that argument has never been used in the 20+ court cases pertaining to gay marriage bans?

      Because its stupid! Its the kind of thing people repeat because it sounds profound, yet is deeply ridiculous. How brain damaged was the P-R team at Focus on Family when they came up with that?

      Btw, A gay marriage ban is not rationally related to raising children except to make it more difficult for some families to do it in a sane manner.

  3. Frank regurgitates two indefensible right wing views without adding any value or any supporting data:

    1) “Humanity loses when children do not have a stable, mother- father home” This is provably wrong. See http://www.nbcnews.com/health/kids-health/children-same-sex-parents-are-healthier-study-n149901. Stable family – Yes. Male/Female-Father/Mother – No

    2) “Humanity loses when we degrade marriage to allow for people of ten same sex to get married” This is just a bigoted value judgement — stemming from the position that your view of morality is unassailably right.

      • Dear Frank,

        LOL!

        Do you have any idea what scientifically supported (or unsupported) means? I suspect not, but your “holier than thou-ness” does come through.

        We will never come to an agreement. We regard your position as just as immoral as you regard ours. This will however come before the supreme court and you will lose. You will lose in the view of history, the law and in the eyes of God, who would never sanction this kind of bigotry.

        • Homosexual behavior will always be sinful.

          Two people do the same sex will never, ever make a marriage. It will always be something else.

          Best do some study on data, sampling and what constitutes scientific proof. You obviously have little understanding of it.

  4. Whatever you say, Frank … Obviously scientific data means nothing when it conflicts with your narrow religious views.

    I’ll say it just as emphatically as you (and just as arrogantly) –> Homosexuality is NOT a sin.

    Obviously you are impervious to any suggestion that you are morally wrong. We’ll never agree. So we’ll just watch you and your ilk fade off onto God’s trash heap of history.

    • Ah.. by what God will this harsh judgment come from? Certainly not the God of the Bible.. as the harshness of his judgment was already felt when he declared that man shall not lay with man.

      22 Thou shalt not lie with mankind, as with womankind: it is abomination.

      23 Neither shalt thou lie with any beast to defile thyself therewith: neither shall any woman stand before a beast to lie down thereto: it is confusion.

      24 Defile not ye yourselves in any of these things: for in all these the nations are defiled which I cast out before you:

      25 And the land is defiled: therefore I do visit the iniquity thereof upon it, and the land itself vomiteth out her inhabitants.

      26 Ye shall therefore keep my statutes and my judgments, and shall not commit any of these abominations; neither any of your own nation, nor any stranger that sojourneth among you:

      27 (For all these abominations have the men of the land done, which were before you, and the land is defiled;)

      28 That the land spue not you out also, when ye defile it, as it spued out the nations that were before you.

      29 For whosoever shall commit any of these abominations, even the souls that commit them shall be cut off from among their people.

      30 Therefore shall ye keep mine ordinance, that ye commit not any one of these abominable customs, which were committed before you, and that ye defile not yourselves therein: I am the Lord your God.

      So.. what God do you speak of??

      • And people wonder why the anti-gay crowd can’t seem to win a court case.
        You have religious objections to it. So what!

        Our laws are not beholden to your religious views or those of anyone else. Religious freedom means I never have to give a flying crap what you think God is saying.

        If you can’t give rational and secular arguments, the laws are never going to be on your side.

        • It doesn’t matter that you believe or don’t believe in God. It doesn’t matter who’s side you are on. When the time comes that America has left God behind.. and proclaims what you have proclaimed.. that is the time that America will be cleansed. I just sit and wait for that day. Your so called win will be very brief. God will not be mocked.

          • Re: ” When the time comes that America has left God behind.. and proclaims what you have proclaimed.. that is the time that America will be cleansed. I just sit and wait for that day.”

            Gee, that sounds curiously like a threat. Is that all you have left … hurling threats at people? You think people are going to do your bidding based on threats of cosmic doom at the hands of your vicious and angry sky-tyrant?

            Sorry to break it to you, but not all of us are impressed by your childish threats. Grow up and knock it off already.

          • No.. it is no threat. It is a promise. People who don’t believe in God.. don’t fear him. We know what is happening and we know that those who don’t fear God will not change. It is not our bidding that the warnings go out.

            However.. God has sent warnings.. not threats. It has already been prophesied.. I just wait for it to happen. If you are still alive to see it happen.. then you personally will know that the warnings were real. I am sure you will then look heavenward and curse the vicious and angry sky-tyrant as you call him.

  5. @Larry – laws and secular arguments go back before Hammurabi’s code; what a society allows can benefit it or destroy it, history reveals this quite well. I’m afraid the backlash is about to appear as to how religionists would have things; If you pray begin to pray for mercy for all.

    • That was a non-statement if ever there was one.

      In other words, “we don’t need no stinking rational or secular arguments” God rules us all, Period!!!! Too bad we have a little thing called the 1st Amendment which states otherwise.

      Art, let me save you a lot of trouble and pointless dancing around and time wasting. Unless you have a rational and secular argument why the state government of Utah should be allowed to ban gay marriage, it cannot remain as a law in the United States. It cannot overcome equal protection arguments under the 14th Amendment.

      You can claim such arguments may exist, but I sincerely believe that is a load of horsecrap. I won’t believe a word you say to that effect unless you can articulate such arguments in your own words in a plain manner. If you can’t do that, then it is plainly obvious no such arguments actually exist.

  6. Before I am summarily dismissed as a bigot, hateful, and unefucated, please allow me to give a brief description of myself as bears on the subject.
    I’m well educated (3 degrees. Including an MS in chemistry, and am currently ABD for a PhD in chemistry.). I have studied the subject from a logical, reasoned, and academic manner (some of the research techniques I employed as a student were likewise used in the early research on determining whether homosexuality involved a genetic determinant).
    I can sincerely say that I feel no hate or animosity towards the gay and lesbian community. My opposition to gay marraige is more fundamental, philosophical, and even of a pragmatic nature, and not merely for moral reasons (though I am a Christian). To say that I hate all gays because I don’t agree with some of their behavioral choices, is akin to accusing me of hating my brothers and sisters because I don’t agree with their alcohol and drug related behavior.
    Yet, this will likely be the emotional knee – jerk response that will result in response to the points that I will raise. This not only demonstrates a lack of maturity and pragmatism, but is also most often a tactic taken by those who lack a reasoned and plausible rebuttal (if you would like to have a mature discussion on the matter, my email is jheadrick@ozarkdelight.com, but don’t waste my or your time if you plan to persuade me by attacking my character, or by an emotiinal attack on my views).
    The following is just a brief and extemporaneous caricature of what I believe to be critical flaws in the argument for gay marraige.
    Actually there are several logical, scientific, and yes, secular arguments against gay marraige. For one, scientifically, it violates the very foundation of the life sciences. It is in direct conflict with evolutionary theory. One of the pillars of evolutionary theory is that of selection of the ‘fittest’. And, what does fittest mean in evolutionary theory? The fittest is that individual or group of individuals of a particular species that survives to leave the most progeny. Gay marriage is in direct violation of this foundational principle. For, if one single generation of any mamalian species was to become exclusively homosexual in behavior, the extinction of that species would be assured on the relatillvely short timescale, from an evolutionary perspective, of one generation. This fact of itself ought to impress upon any serious thinker, the truth that homosexual behavior is not ‘natural’. Some will argue that homosexual behavior is common among some mamalian species. This does not in any way demonstrate that homosexual behavior in mamalian species is a normal healthy and beneficial behavior for said species (humans, as a mamalian species exhibit many behaviors, even habits that are detrimental to the species and its perpetuation). what they fail to recognize, or concede, is that this behavior may be considered unnatural, not reproductively healthy, and even an aberration and not the natural order. Given the opportunity to mate with a receptive female, a male bonobo monkey that has been confined exclusively with other males, and who had previously only demonstrated homosexual behavior, will aggressively fight for the opportunity to mate with a female, if one is introduced.
    Gay marraige, in a related manner, runs contrary to a host of social, psychological, legal, moral, and theological constructs and principles that are positively related to the existence and success of the family unit of society (critical for the developement of successive generations of productive and contributing members of society), the existance and continuation of a healthy work force, which in turn has positive affects on economic factors, national security, etc..
    In fact, throughout the history of western civilization, numerous laws have been enacted with the intent to strengthen and protect the family unit. Just one obvious and recent example being DOMA.
    Though not commonly discussed in pop culture, repeated studies have shown a higher incidence of risky sexual behavior, a higher number of sexual partners, an increased level of infidelity, increased alcohol and drug abuse, and and a greater incidence of depression, and suicide. It has been suggested that these associated negative behaviors are due to the stigma that homosexuality often carries in western society. Yet, research results dont support this hypothesis: though acceptance of homosexual behavior has become much more the norm, there has not been a concomitant decrease in these harmful behaviors.
    In brief: a thoughtful consideration of gay marraige via sociological, legal, psychological, scientific, and pragmatic considerations results in a consensus argument against the acceptance and legalization of gay marraige.

    • Its amazing how much BS you managed to throw up there to hide a few often used, but wholly irrational arguments. So yes Jeb, you are a bigot. One who thinks they are being clever, but really isn’t.

      Your whole spiel can be boiled down to 2 arguments (which you tried to hide under a layer of nonsense)
      1. Marriage is for procreation
      2. You don’t consider gays as regular people because they don’t want a partner for procreative purposes.

      The problem with those arguments are that marriage is a lot more than procreation by our laws and society. Not being able to produce natural children from a union does not make it invalid or has ever been cause to ban a given marriage. The only person who is attacking marriage and cheapening it are people like yourself who use this argument.

      Under our laws procreation is expressly NOT the sole basis of marriage. (Griswold v. Ct 1960)/ Children adopted by a married couple or produced through artificial means have the same legal status as those children born to one naturally. Gay couples are capable of having children in a way recognized under our laws. So the ability to produce children biologically is not a significant function of the laws governing marriage or the rights it entails.

      The other part is, a ban on gay marriage has NO EFFECT WHATSOEVER on procreation or raising a family. Banning gay marriage does not promote procreation, it does not promote the creation and maintenance of families. It actually prevents that for those affected. It prevents gay couples with children from being capable of raising them in a sane manner. All you are doing is giving an excuse to discriminate against people on alleged principle under the law.

      In every federal court case, they try to use the “procreation argument” to justify gay marriage bans. Even some of the most conservative federal judges are finding it far too silly to take seriously.

      And no, I don’t believe your views are guided by anything resembling rationality or objectivity. You are simply going through the motions and trying to throw up as much of a word salad as possible. You trade in stereotypes and pernicious views of gays but you try to pretend otherwise. A bigot with a vocabulary and one smart enough not to use a religious argument.

      The real dishonest part of your spiel is the treating of gay marriage as a theoretical construct. Something which is only in the hypothetical. It already exists in several countries and states.If you had a legitimate argument to make, you would be able to point to clear factual examples of problems faced in those places. You don’t. You are full of it.

      Obviously none of those degrees you claim were in law or biology.

      • Gay marriage is a perversion of what marriage is. Marriage is between a man and woman. That is it. That is what the word marriage stands for. That ultimate relationship between a man and woman. We do not want the word to be perverted into something else… and the term gay marriage does just that.

        You might say you don’t care what I have to say or feel.. but I can say the same to you. Rights for gay couples can be extended to them without the relationship being called marriage. The rules can be changed without having to change the definition of marriage. Leave marriage to be between a man and woman. If you need a word to define the relationship of gay people.. go make one up and get the laws of the land to identify that word to have the same rights and privileges that men and women have in what we call marriage. Stop with the perversion! The word gay has already been perverted.

        • Since you have no rational or secular basis for such beliefs, our laws don’t have to take your views seriously.

          The only person who is attacking and denigrating the nature of marriage is yourself. You seek to reduce it to an insultingly simplistic notion of fetishizing biological function.

          As Judge John E. Jones II stated

          “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same sex marriage causes discomfort in some does not make its prohibition constitutional.

          Nor can past tradition trump the bedrock constitutional guarantees of due process or equal protection”
          http://www.post-gazette.com/image/2014/05/20/WHITEWOODVSWOLF-PNG

          Like any bigot you are happy with “separate but equal” status, provided that you are in a clearly superior position. But that ship has sailed. Had the anti-gay crowd not fought legally recognized civil unions tooth and nail, it would have been the case. Instead they spitefully sought to foreclose any kind of recognized union under the law.

          The real funny thing is if it wasn’t for the malicious discriminatory intent of people like yourself, gay marriage would never have gotten as far as it did. If there were no bans and gays needed legislation to pass, there would be no opportunity for judicial solutions, as what is going on. Legislative lethargy would have done the job for you in most of the country. You reap what you sow.

          • I don’t reap what I sow. I stand up to perversions like this one. Just becasue someone thinks today it is constitutional.. does not mean it is.. it just means they think today it is. They surely didn’t think it was back then as gay marriage was not allowed. Whenever it has been in the world.. it has always been stomped out because it is a perversion. Yes.. in the last days the prophets declared.. that which was called good will be called evil.. and that which is evil.. will be called good. You are on that band wagon.. not me. It will me you and your ilks that will sew that which you have reaped.

          • “Just becasue someone thinks today it is constitutional.. does not mean it is”

            If those “someone”s are the majority of the Supreme Court, it does. :)

            Law is not like bible study. We have people with the authority to interpret the Constitution that everyone has to consider binding and controlling.

          • Oh.. I know they have the power.. but it is corrupt. When a man today can declare that something is unconstitutional today.. when it has been before this time.. shows it is laws of man.. and man can do what ever he wants as long as the people give him the power to do so. And if he is evil.. he will do evil things. And perverting marriage is evil.

  7. Mark Silk

    Well of course the U.S. Constitution is man-made law , MrNirom. They made it in Philadelphia 225 years ago this summer. In its original form it included some things that most of us today would consider evil — mainly having to do slavery. Just because something is constitutional doesn’t mean you’re not entitled to consider it evil.

    • That is my point Mark. It is just a few men.. that determine for the many what we will and will not accept. If they be evil… they will set evil laws and we are stuck with them until a point that we rise up and say NO.. no more. This country is going to hell in a hand basket and I have to watch it go there.

  8. How hypocritical is it to say that homosexual marriage is just perfectly fine, but that plural marriage is morally wrong?
    Why legalize same sex marriage, but not plural marriage?

    • There are no valid MORAL objections to either. The question is a feint.

      The issue is legal/societal. Marriage laws are going to permit a union absent rational and secular reasons against it. There are rational and secular objections to plural marriage, which do not exist for gay marriage.

      Our marriage laws are gender neutral. Gay marriage requires no change to existing laws in order to be implemented beyond simply giving the state authority to do so.

      Not so with polygamy. Polygamy wreaks hell on existing laws pertaining to marriage rights. Our current system of marriage prefigures a binary default for various rights and privileges associated with marriage. Property rights, debt obligations, property laws, child custody, estate law, guardianship, and even criminal laws all get thrown out of whack with polygamy when applied to existing laws.

      Morally there is no issue. But in order to have polygamy, someone is going to have to draft revisions to existing laws which are rational, just and fair to all parties involved. Until the polygamists do so, there is no compelling reason to make it legal.

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