November 12, 2008

Civil Union Division

A parable

Once there was a restaurant that served a wide range of foods, some with meat, and some not. A group of vegetarians asked the restaurant if they would mark the menu with indications as to which dishes contained no meat. The owners said they would not do that, but would provide a separate menu listing the vegetarian dishes. Some of the vegetarians also said they didn’t want to eat in a restaurant that served meat at all, and took up a collection to start their own restaurant.

In response to my two previous posts touching on the Roman Catholic support for the adoption of Proposition 8 in California, the conversation has wandered away from the original theme — the role of the church, and the extent of its mendacity and bad faith, in this political action — and turned to the larger question of, “Why marriage rather than civil unions?”

The question was framed by commenter Rick, who opines that CU

is an innovation whose more open and evolving nature may more flexibly address questions of how gays and lesbians see these relationships.

He bases this suggestion on his recognition that same-sex couples

are of course already there, and many have custody of children from prior heterosexual relationships. So there undoubtedly need to be social institutions and structures to address the reality. The great question is whether we should shoehorn these relationships under the rubric of marriage, or, if there is indeed something distinctive about them, whether we should create new structures to address newly-recognized realities.

He also asks about the suggestion that the notion

that couples living together, not only may get married, but should get married, one that should be imported into all relationships? I don't argue; I only ask the question. The idea of marriage is a large one, with far-reaching implications for behavior in the net of interrelated ideas — not only fornication, but incest, adultery, divorce, annulment, separation short of divorce, marriage by estoppel, sexual fidelity, exclusivity, and duration. Legal marriage is much more a set of restrictions and responsibilities than rights, and its legally enumerated contours don't even begin to address unwritten social and religious norms. I only ask the question: Are they really desired?

He then observes

One distinctive characteristic of homosexual couples is that, if one or both has custody of children, there is always a “third,” whether divorced or deceased or in prison, whether an active outside parent or a sperm donor, or anything in between, there is always someone of the opposite sex somewhere in the background. How to deal with that inevitable “third man” or “third woman”? I don't know. But it seems a matter that might possibly be better addressed in the context of civil unions than in importing the norms of divorce and custody from our current marriage law, where such is the exception, not the norm, and only comes up in the context of a breakdown of marriage.

Let me begin by responding to his final point, which I think betrays the root of his difficulties in coming to clarity on this subject. The existence of a “third party” for same-sex couples with children may be inevitable, but it is neither “distinctive” nor “characteristic” of same-sex couples taken as a whole. It is, as with mixed-sex couples, a factor only affecting some same-sex couples. And, just as with mixed-sex couples, it only involves those with adopted children, or children from a previous relationship.

This addresses Rick’s thinking about the purposes of law — and whether it makes sense, in his terms, to “shoehorn” same-sex relationships under our current marriage laws. Noting for the record that marriage laws vary significantly from state to state, still in general it seems that the laws, as written, do not in every particular of their statutory limits have application to all marriages. Obviously only marriages with children will be affected by provisions of marriage concerning children; only marriages that end in divorce will be touched by the divorce regulations. There was a time in many places where adultery was a criminal offense, and obviously that portion of the law only concerned adulterers.

So the current marriage law contains provisions that apply only to some marriages, in certain situations. Given that, why create a new “Civil Union” law — on the pretext of greater uniformity — when no such uniformity exists in the present law? Same-sex couples can be covered perfectly well under the existing marriage laws (as indeed they are in Massachusetts, and were for a time in California), the provisions on adoption, custody, divorce and so on coming into play as needed.

In short, there is no need for “separate but equal” — a separate menu, to employ my parable — even if such a separate status could truly be equal. It simply leads to an unnecessary multiplication of the laws to no apparent end other than the ability to say, “This is not that.” Thus the sole purpose is to make a separation, not to create equality.

Is separation desireable?

Rick also asks if gays and lesbians really want marriage rather than provision for civil union. It is quite true that there are some gays and lesbians who want to have nothing to do with “marriage” — feeling it to be a heterosexual artifact with little or no relevance to them. (I would also add that there are no small number of heterosexuals who feel the same way.) They are represented in my parable by the strict and doctrinaire vegetarians. However numerous such constituencies, it is also clear that there are many same-sex couples who do want to marry — just as there are many vegetarians who for social reasons wish to dine with their non-vegetarian friends. Apparently there are some thousands of same-sex couples who have taken advantage of this opportunity in the short time it was permitted under California law. My point here is that in a free country people should be permitted to make such determinations without the interference of mob rule to the contrary, unless some good reason can be shown to prevent such relationships being granted civil recognition.

Civil action is civil action

Which brings me to the other question Rick raises: What’s wrong with civil unions? Well, it seems to me to be relatively clear that a civil marriage is a civil union. It is not a religious ceremony — and no one is saying that any religious body is either forced to perform a religious ceremony for a couple joined under the civil law, or to recognize such a civil marriage. In fact, many churches are by their own law forbidden to do so — there are many civil marriages that cannot be recognized by a church. For instance, the Roman Catholics would not ordinarily recognize as a valid marriage one in which one of the parties was divorced, not having obtained a statement of nullity. Episcopalians are not permitted to perform a marriage where neither of the parties is baptized. (The fact that an Episcopal cleric can perform a marriage in which one of the parties is not baptized is recognized as a peculiar development, and stands in some conflict with the canon on marriage. But that’s a topic I’ve expanded on elsewhere). In short, there are any number of religious restrictions that do not apply in the civil sphere.

So is all of this a logomachia — a battle over words? It would seem so. Some of my conservative correspondents have noted they really don’t care if civil unions are permitted — or even civil marriage, which they will of course not recognize as marriage. And an air of inevitability hangs over the question as a younger and more tolerant generation arises, fewer and fewer of whom are interested in being part of intolerant religious bodies.

The whole idea that marriage is a religious institution is what is strange to me in all this. Marriage — in its many and various forms throughout history — is a human phenomenon with many manifestations, including variations in number, gender, and duration. Even the so-called Judeo-Christian teaching on the subject is a false summary, as Jewish law allowed polygamy, and mandated divorce and even incest in certain cases, while Christian law forbade all of these.

However, in our culture at least, this has been forgotten, and “marriage” has come to be seen primarily as a religious rather than a civil institution. Some suggest going with that flow and reserving “marriage” to the religious, and “civil union” to the civil sphere. My sense is that this is too much a case of toothpaste and tube, and we are left with a term used in both the civil and sacred realms. But it is at least clear that civil marriage is a civil union — and the law should reflect that.

To reiterate: In terms of how people should be treated under the law, there is no difference between a mixed-sex couple and a same-sex couple apart from the gender of the parties: and under the equal protection provision, to treat such couples differently on the basis of sex is a constitutional violation.

As the courts will eventually rule.

And then we can all go home.

Tobias Haller BSG


32 comments:

Anonymous said...

Please see my comment on this in the thread below, in which I expalined how offended and insulted I am by Rick's original comments.

I might add here, as Tobias says, there is really no difference in the "third party" straw man that Rick set up between gay and straight "blended" families. Indeed, our kids feel fortunate compared to those of their friends who have divorced parents at war with one another. In contrast, my wife and her ex-husband are close friends and the kids are nurtured by everyone. We are a loving, extended family that if anything should be a lesson to the grasping, self-centered machinations of typically divorcing straight people.

So there.

IT

Erika Baker said...

IT,
my family is just like yours, I still get on reasonably with my ex husband and we have promised to each other to be good joint parents together. We never speak ill of each other in front of the girls, and we do talk about them as equal partners.

My wife (how wonderful it feels to say that after just 10 days of marriage! Well, it’s Civil Partnership here in England, but legally it’s just like marriage, and whatever anyone says, we’ve always referred to it as marriage because that’s what it is) is fully accepted by them. You should see the joy in the wedding photos, ours, that of our girls, that of my wife’s children and grandchildren, and that of our families and friends. My 76 year old frail father came specially from Germany to be with us and to share in the happiness of it all.

I'd love to invite Rick and Fr Michael to come and spend some time with us to see for themselves just how traditional we are as a family, and how loving, warm and committed. The wonderful woman who is now my wife spent 3 years helping us through the leukaemia treatment of my older daughter and especially supported the younger one, at great cost to herself. Really, guys, if any one of you happens to find himself near Bristol/UK at some time in the future, ask Tobias for my email address and do come and stay!

Tobias, thank you for this post.

Ok, to get back to the less personal....

At one level I can understand Rick and Fr Michael, because for me, for once, this really is a thin wedge argument. I am not a civil person in one part of my life and a Christian in the other. God is who I live for, God is at the core of everything I am and do. If I’d thought even for a second that what I have done is immoral or not righteous in his eyes, I would not have done it.
Those of you who oppose me may call me misguided. But believe me when I say I am absolutely sincere.
I could not have done in a civil context what I believe to be wrong in a religious one.
And so, yes, I will continue to fight to get my church to accept us for what we are, to see the truth about us and about our relationships, and to lose its irrational and completely unbiblical objection to our marriages.

Underlying the steely objection to civil marriage is the same fear and hatred that underlies the objection to Christian marriage. It is not the respective manifestation of the fear and prejudice that needs to be fought, but the fear and prejudice itself.

Mike in Texas said...

The concrete simplity of the concept of equal treatment under law makes the verbose, tortuous, and rather disingenuous writings such as the post to which you responded seem ever so ridiculous.

Anonymous said...

My same-sex spouse and I have been together for 13 years. We married in Massachusetts the week that it became legal. We adopted a child last year; we keep in touch with his mother. But she lives 5 states away, and she has no say in our lives.

We married to gain some of the same rights that heterosexual couples can take for granted. If the US government would also recognize our marriage, then we could avoid paying extra taxes on medical benefits. We could file our federal taxes together and take advantage of the perks offered to straight couples. We would like to be able to inherit from each other and have rights to each other's Social Security benefits, another thing heterosexual couples take for granted. We want to not worry about the adoption of our son not being recognized if we move out of state.

If Rick and other heterosexuals want to experiment with changing marriage, fine. Just let us have the same rights as you do first, and then we'll be glad to talk. Until then, don't presume to speak for my family.

Christopher said...

I think it deadly to a Christian understanding of marriage to say that marriage is religious and civil union is secular. To divorce the world from the sanctuary is a form of spiritualism I'm not fond of, and ironically is the complete reversal of the history of marriage beginning in the civil sphere and being sacramentalized over time to the point now that some would argue it's purely religious. Quite fascinating. This, btw, is President-elect Obama's position, and it's a completely ahistorical one.

I might add that I have atheist and agnostic friends and they are married under the law just as much as the Christian or Jew or Muslim. To say we'll do all civil unions in the secular sphere no matter the couple and reserve the term "marriage" to the sanctuary is really offensive. Atheists and agnostics too can be married.

As to "marriage" and same-sex couples. Under the law, it's clear that not all of the rights given marriage, even in California, are given to civil unions, and folks can be adversely affected without that term applied to their relation, for example, in securing one's companies insurance benefits for one's partner--a problem for couples in New Jersey. I might add that those rights protect my ability to keep my responsibilities to my beloved. I do think that that perspective doesn't get a lot of play in the press or by activists.

In the sanctuary, on the other hand, more robust and particular rites and options are needed before I want to go along with being placed under "marriage" or "matrimony". That doesn't make me a hardliner, just wanting us to do the work first.

Marshall said...

From Rick's comments: "Legal marriage is much more a set of restrictions and responsibilities than rights, and its legally enumerated contours don't even begin to address unwritten social and religious norms. I only ask the question: Are they really desired?"

What an odd and appalling statement! To reflect on marriage only in terms of "restrictions, responsibilities, and rights," is to rob marriage of its relational import. It is to focus on marriage's history, certainly: as an economic relationship, with no sense of personal commitment. We do not choose to enter into stable permanent relationships without personal commitment; and the "restrictions, responsibilities, and rights" exist to serve the personal commitment, and not the other way around.

Which speaks to the reason we choose to make stable permanent commitments, regardless of orientation. It hardly seems a stretch to have the "restrictions, responsibilities, and rights" serve those commitments, regardless of orientation.

JCF said...

Ah, Erika, what a blessed post!

[IT, I don't see you as especially touchy-feely---but as Erika is talking about her happiness in her marriage, and I'm thinking about you and yours---I feel a particular urge to {{{hug}}} you]

***

I wonder, for Rick and Mike-who-seems-unlike-a-parent-in-any-way-which-is-NOT-toxic:

how much is this about the Popoid Church's importation of so much Greek philosophy?

I speak here, particularly, of Platonic Idealism.

Marriage: THE IDEAL.

Two baptized, practicing Catholics. One man (XY), one woman (XX). Both have remained virgins, until their wedding night. They never contracept, and they "welcome every child God gives them" (which happened easily, w/ no infertility issues). They enjoy sex (though each may have spoken to a priest in Confession, if they thought they might be enjoying it TOO much, w/o proper deference to their partner, and in particular if in excess, to the detriment of their glorifying God). They rear those (likely many) children, in the knowledge and love of the Lord, in the Catholic Church. They are always completely faithful to each other (confessing any passing thoughts of others promptly, for forgiveness of their partner, and absolution by the Chuch).

Have I got it all?

This, then, is the Marital Ideal---from which ALL imperfect marriages---heterosexual ones---derive their intrinsic identity.

No matter HOW imperfectly realized compared to The Ideal, any heterosexual marriage is still recognizably "marriage", in a way which even the BEST homosexual relationship can NEVER do.

Because the indissoluble ESSENCE of marriage is...

XY + XX. Period. (From Plato's Ideal, to Plato's Atom)

OK, Tobias: over to you, for debunking...

rick allen said...

Toby, I was just on the verge of trying to make a dignified exit from this thing, and there you go flinging my words up in purple ink.

How dare I? Well, it's a matter of law, and it's a democracy, and discussion is usually favored. Being a member of the mob isn't disqualifying.

It seems to me at the moment there is a certain amount of hysteria about this in the blogosphere. Pace MadPriest, 52% of Californians have not joined the sect of Fred Phelps. Nor has the state somehow become a Mormon theocracy. At most, the status quo has, for a time, prevailed, the same status quo prevailing in 47 other states.

I have suggested that there is a reason for that status quo, grounded, not in hatred, but in a clear-eyed understanding of the uniqueness of the relationship between male and female. I have also hinted that I think there is a kind of flat-earthism in trying to paper over that distinction.

"The whole idea that marriage is a religious institution is what is strange to me in all this." And what is strange to me is the notion that it is not. I can't go through its history here, of course. There is a nice discussion in Chesterton's "Superstition of Divorce" where he emphasizes the status of marriage as a vow, something more than a mere contract between the contracting parties. And, of course, all I was trying to say was that, if marriage is inextricably linked with ideas of the entry into a religious vocation, why not a clean slate?

"Well, it’s Civil Partnership here in England, but legally it’s just like marriage." Erika, that was exactly the state of affairs in California which the state supreme court struck down, and which proposition 8 restored. It is apparently working well in England, but here in America the suggestion is greeted with cries of execration.

toujoursdan said...

I came across former Prime Minister Paul Martin's speech on same sex marriage recently. While it is Canada-specific, it may provide some additional insight here.

Address by Prime Minister Paul Martin on Bill C-38 (The Civil Marriage Act)

In practicality, mandating “civil unions” and declaring them equal by the state has been tried in places like New Jersey and it just doesn’t work. There is nothing in civil law that forces private bodies from hospitals to insurance companies to gyms who give couple's membership discounts to treat civil unions as equal to marriage even if the state says they are equal. Civil unioned couples who try to access the same benefits married couples receive have been turned away even in states where they are theoretically equal.

Civil unions are all well and good and if we were starting from legislative ground zero I might see it the other way. But there’s a vast amount of extant jurisprudence on the books predicated on the legal concept of civil “marriage” and there is nothing predicated on the legal concept of civil unions. Therefore, civil unioned couples wouldn't have equal protection, which is the whole point.

This is why gay couples, Christian or secular, want to be married and won't be satisfied with less. Same sex marriages, if instituted, would merely be grafted into these already-existing case law, policy and regulations. There is nothing in existence that covers the rights and responsibilities of civil unioned couples. New policies would have to be written, which may or (more likely) may not happen.

Separate but equal has never been so.

Erika Baker said...

Rick
"Well, it’s Civil Partnership here in England, but legally it’s just like marriage." Erika, that was exactly the state of affairs in California which the state supreme court struck down, and which proposition 8 restored"

Is that really true? What about the points made by anonymous in the third comment on this thread?

And during the prop 8 campaign too, there were many who said that the legal protection is precisely not the same in America as in England.

Tobias Haller said...

I am about to head off to church, so I don't have time to respond in depth.

Rick, the "status quo" in California was what was overturned by Prop 8. And your 'clear-eyed understanding of the uniqueness of the relatinoship between male and female' is still a tautology, which you have yet to elucidate beyond the ding an sich.

Christopher, the history is clear: neither Judaism nor Christianity had "marriage liturgies" until fairly late in the Modern Era. Marriage slowly became accommodated into the church and synagogue over time. This is not to say there was not some "theology of marriage" as there was also a "theology of diet" for Jews and Christians both. But marriage was not regarded as sacred in itself. A development in marriage theology occurred over time, and it is quite complex and variable. As late as the middle ages it was still hotly debated as to whether coitus or consent "made" the marriage. I would suggest that even today the "theology" of mixed-sex marriage is far from clear; in some ways I think the thinking on same-sex marriage is clearer! Fuaay and novel concepts like "complementarity" (at its roots heretical) pop up to prop up a theology that is collapsing in on itself.

My effort here was simply to ackknowledge that civil marriage is not a sacred institution -- that is why atheists are just as much married as Roman Catholics; but they see their marriage as a civil "union" -- and there's nothing wrong with calling marriage a "union" since this is how the TEC marriage liturgy has long described it!

Interestingly, it was pressure fro Henry VIII that got Cranmer to include things like "instituted by God in the days of Man's innocency" into the marriage rite. Cranmer was much more the reformer, and Luther, as you know, famously said that marriage was an affair of the town hall. That does not mean either denied a holiness to marriage, but that they recognized that the roots of the institution were human, not divine.

But, as you rightly point out, the human can be made holy. This is, after all, why the church gets involved in marriage at all -- not to "make" it but to sanctify it and bless it. I think there is a fundamental distinction between civil marriage and church marriage. This is why the "blessing of a civil marriage" adds something to what is already there, which has already been constituted by the couple themselves as the "ministers" of the rite whether performed in a civil context (or in the church, in which the blessing forms an intrinsic part of the liturgy, rather than as an additional element). I hope this clarifies what I was attempting to say here.

I do not think it at all destructive to keep these categories of "blessing" and "union" distinct, if only for the sake of those who wish to have the union without the blessing. I know it is hopeless to think that the state will stop using the word "marriage" simply to aid in preserving this distinction. But in the present discussions it is very important to make it clear that the civil legislation is not intended to place any burden upon religious institutions.

Some think that RC employers should have the right to deny spousal medical benefits to same-sex partners because they disapprove of same-sex marriage. They clearly don't see the difference between providing a benefit required by law and offering approval.

rick allen said...

"What about the points made by anonymous in the third comment on this thread?"

Whether California recognizes them as civil unions or marriages, they remain outside of the federal definition of marriage for things such as income tax and social security. Those disabilities would continue to exist with or without Prop 8.

Anonymous said...

May I address the idea that "civil unions" are the same as "marriage":

leave aside for a moment whether a $10 form notarized at mailboxes etc has anything "marriage-y" about it.

Leave aside the whole notion of "separate is equal".

There are numerous cases now of rights supposedly guaranteed by civil unions in CA NOT being actually granted, examples of hospitals denying entry to the partner, etc "we don't do that here". NEvermind it's technically illegal, small solace if your partner is dying in the back of of the ER that you can sue the hospital later.

Our attorney told us that she recommended against a civil union (called a domestic partnership or DP in california) because there was no case law to back it up, too many examples of it "not working" and until the courts REALLY decided what it means, we still needed all those tiresome legal documents that show we have powers of attorney etc.

There are also some inheritance issues (such as step-ups in value upon inheritance) that weren't present, and the right of a spouse not to testify against the other...

Let me also stress TObias's comment.

Prop8 was NOT a technical exercise in semantics.

Prop8 ELIMINATED AN EXISTING RIGHT for couples who were legally married in the state of California between June and NOvember....including me and my wife. We are LEGALLY MARRIED -- for now.

But one pro-8 proponent gleefully said on the radio this morning, "they're null and void! It's like freeing the slaves!"

We aren't even human beings to him as he rips up our marriage license with slobbering delight. What a sorry excuse for a human being HE is.

It's not clear whether this will happen in fact, but about half the lawyers seem to think it likely.

IT

Grandmère Mimi said...

I only ask the question: Are they really desired?

Rick, I suppose that one would have to ask the question of another to know what they really want. That you ask the question, suggests to me that you suspect that same-sex couples may not "really" desire marriage.

"Separate but equal" will eventually be struck down, because separate is never equal, and the courts have declared that to be so.

I reiterate my wish that the church get out of the "union" business and stick to the "blessing" business. How much that would help solve the disagreements over civil marriage, I can't say.

toujoursdan said...

I entered a post on here but it seems to have never shown up. I hope I didn't say anything wrong.

Mandating “civil unions” and declaring them equal by the state has been tried and it just doesn’t work. There is nothing in civil law or jurisprudence that forces private bodies from banks to hospitals to insurance companies to gyms that give out discounted memberships for married couples to treat civil unions as equal to marriage, even if the state says they are equal. Civil unioned couples who try to access the same benefits married couples receive have been turned away.

This is why gay couples want to be married. There is already a vast body of law, jurisprudence and corporate policy that covers the rights and responsibilities of married couples. Same sex marriages would merely be grafted into these already-existing regulations.

There is nothing in existence that covers the rights and responsibilities of civil unioned couples. New policies, laws and cases interpreting these regulations would have to be written, which may or (more probably) may not happen. Also, in the U.S. there is nothing similar to the Sexual Orientation Regulations in the UK (or Human Rights Code in Ontario and Quebec) that mandates equal treatment by private entities. That would be much more controversial there.

Civil unions won't work, particularly in the U.S. context.

Tobias Haller said...

Thanks IT, Mimi, and TJ -- and no, TJ, this is the first I'm seeing of your comment. There was a strange glitch in the system yesterday afternoon -- for about 40 minutes I couldn't access blogger at all; perhaps this is the source of the problem.

I can also let you know that at the Diocese of New York Convention this weekend, I plan to speak in favor of a resolution offered through the GLBT subcommittee of our Diocesan Social Concerns Committee, urging the State of NY to adopt marriage equality. As you may know, this has been blocked by a Republican state senator for many years, who refused to bring the matter to a vote, even though it has passed the Assembly. Times have changed, and the Senate is now majority Democrat for the first time in years. Governor Patterson has said he will sign the bill if passed.

This is based on standing church legislation that says gay and lesbian persons are entitled to "full and equal" rights; not "special rights" as some opponents ironically say (when it is in fact they who have the "special" rights!)

Lest someone say, "But you've been criticizing the RCC for getting involved in politics!" Please note that my critique was leveled at the mendacity and misleading nature of the arguments; as well as their substance. I have noted, as others have, that there are limits to the degree to which a 501c3 entity may act to influence legislation and elections; I am always extremely careful on this myself, and have never advised my congregation to vote a particular way on anything. It is within the rights of a church to speak out on a public policy that is contrary to their own church teachings -- but one would hope they would do so with both logic and honesty, and not out of fear, and certainly not by misdirection; nor should "substantial" financial resources be diverted to such ends. I don't know how much the Knights of Columbus spent on the Prop 8 campaign; or the Mormons. As for TEC, I know the bishops of the Dioceses in California issued a statement, but I don't know that any major financial commitment was made, on the No on 8 side, by the church or its auxiliaries. Here in NY all we are looking for from the church is a statement that marriage equality is in keeping with principles already acknowledged even at the level of the Anglican Communion, concerning civil rights for all people, and equality under the law. That includes marriage law.

Daniel Lee said...

The P8 campaign was replete with bad faith and dubious innuendo - all more or less against letting gays get married, though often also at the same time dressed up in seemingly mild claims about how much all the conservative religious folks genuinely knew and liked two mommies or two daddies next door.

Push on the themes and details of most conservative religious views against letting gays get married just like everybody else, without any more restriction or intereference from state law than everybody faces - and you get the bedrock assertion of some idealized special complementarity that is so unique to opposite sex, straight couples that they alone get to be married. Yeah, right.

Push on ths complementarity argument, and you get several bad faith outcomes. None of these views holds water, convincingly.

One problem is that male/female differences are not yet fully known, even though we have believed in them for long centuries.

So far, the evidence varies. Some differences that we long believed - mainly involving themes that supposed all women were defective or impaired because they were female - now seem to be mistaken. So now we let capable women go to school and enter career or professions without the long-standing sex barriers that used to be firmly in place, law plus social life plus religion.

Other differences have been confirmed. Indeed differences keep flooding out in medicine and biology. Indeed some sort of complementarity clearly exists, since males and females are clearly one species, Homo sapiens, not different species.

However, the biology does not neatly support conservative religious claims of categorical complementarity.

Instead of males and females being categorically different, and having biologies which are mutually exclusive and separate from one another, what our biology shows us is that (1) males and females differentiate along similar fetal pathways with divergent outcomes, (2) a biology tilt exists towards females such that if masculinization fails to take in the womb, the baby will seem female, (3)these differences are many, are continuums of difference, and are not exclusive and categorical as religious complementarity views claim.

The intellectual parallel of all this in our times is sort of like the transformation of raw Creationism into something conservative religious people like to call Intelligent Design. ID sounds much more like real science than raw Creationisms did; but it still fails to square with real empirical facts which widely and deeply support evolutionary models.

Believers cannot afford to be fooled, because falsifying science hurts us all and closes best practice doors of empirical inquiry and critical reason. How little, then, we can afford to over-simplify and rush past the real biology of male/female differences in an effort to get to a predetermined conclusion, based mainly on our closed starting assumption of just the strict and categorical complementarity that conservative religious views are loudly preaching to us.

The new empirical category is andogyny. All of us are a mix of general human species characterstics, plus perhaps some male, plus perhaps some female elements. Just because our individual outside gentialia are settled hardly means that everything else in individual biology has been neatly and patly categorized.

Cases of failed infant gender reassignement are notorious, simply because no matter what the outside shape says, the person still knows and wishes to follow some intangible deep sense of guiding core. Ditto, for transgender youth and adults who do not fit the neat complementarity framework preached to us, all cued by a simple genitalia distinction.

Ordinary folks, too, have multiple levels and degrees of human plus male plus female, varied along complicated (not simple, pat, neat) continuums. Instead of seeing evidence for separate, mutually exclusive male/female categories, our evidence shows us combined features or factors or male/female-linked characteristics.

Thus we are all combinations of basic human plus male plus female details. (Both men and women make both testosterone and progesterone, for example.)

No matter what the biology, great behavior variations overlay biology.

Some women are clearly better athletes than some men, even if female muscle mass in a large population of individual women clear differs on average from male muscle mass in a large population of individual men.

Not all females are immediately great, or even good, mothers just because their female biology has not neatly settled everything in their mothering behaviors. Ditto, for males and fathering. Simple, categorical models which neatly predict behavior from biology cued from external genitalia are misleading, and often outright false.

Theologically, then, we can hardly make much true progress in discernment by starting off with overly simple, even false and categorical assumptions about what the biology and social facts of male/female are. Bad science will surely affect us, and probably heighten our likelihood of achieving bad faith theologies?

Ethics derived from bad faith theologies will only get us into even more trouble. (Hence the constant false witness and ends justify means ethics which repeatedly stem from bad faith conservative religious theologies of complementarity?)

Maybe trying to derive ethics about queer folks from bad faith conservative religious theologies, based on mistaken and mistakenly simplified categorical biologies about alleged male/female differences – thus is a dodgy enterprise, and ends up too vulnerable to having to say bad things about queer folks no matter what, as well as sometimes having to argue that queer folks must be barred from citizen resource or opportunity. Why? Details of why vary, but the bottom line is always that people who are not straight conservative religious people are innately defective, and so our fears or disgusts or prejudices about them are reasonable, and we must sometimes mistreat them in order to protect ourselves.

One would like to imagine that we have seen enough scapegoating and fear-mongering among believers that this approach would get little traction. So it is, among younger believers.

Theology and ethics which take accurate biology (or other hypothesis tested data) into account, on the other hand, can turn up the lights for all believers. We then either change for the better by correcting our ethics or theology, or we remain legacy believers while having confirmed that some legacy understanding from our glorious past has, indeed, stood the ongoing test of taking accurate science into account.

So we disconfirmed the flat earth of the Middle Ages, and stopped barring women from attending university or medical school. So we renewed our legacy believer involvements with witness, service, praise, worship, prayer - unhindered by these frank corrections.

The conservative religious effort to back track from gay vs straight differences, to a bedrock of categorical male/female difference is faulty, often plain wrong-headed in light of the known facts so far, and often mean-spirited on top of every other problem.

We always remain open to hypothesis tested new evidence.

Maybe we will eventually find that, say, two men or two women pairbonded have innate defects which a man and woman pairbonded do not innately have.

It does seem unlikely that, say, married straight opposite sex conservative religious parents always raise only kids who also turn out to be nothing but married straight opposite sex couples. Part of the heat and noise of our controversy must arise, truly, from the obvious fact that large numbers of out, partnered, and parenting queer folks (at least in USA?) grew up in USA Bible Belt conservative religious families.

Hence, queer citizens and friends and family in USA cannot just let religion or marriage or work or housing or education or any other good resource or opportunity be categorically denominated as For Straights Only.

If straights have to share such citizenship with queer folks, are they truly, deeply, categorically, irreparable harmed? So straight conservative religious believers tell us, loudly, heatedly, and often with great ire, fear, or disgust - with the physical image of having to rub shoulders with dirty, defective contaminated queer folks still being the going image. The P8 ads even added harm to children in that dominant conservative mix of awful images. (In the old days, not that long ago, all you had to do was hint around about how gay men were all child molestors. Pat, end of discussion.)

If the negative conservative preaching is nothing but true, pat, and reasonable, then maybe we really should return to our old ways. Label all the goodies in daily life: For Straights Only. Hunt down queer folks, isolate then, punish them, threaten them, and do anything and everything necessary to them - to protect straight folks and to protect straight conservative religious childrens' rights to grow up, free from danger and contamination.

It is all prejudice, all mistreatment - if you keep pushing on its claims. Not a golden moment, then, for those of us in the Golden State.

Alas. Lord have mercy.

Anonymous said...

I'm 3rd Anonymous

Rick Allen answered my post by changing the subject. He would not acknowledge that even those of us in Massachusetts (or now Connecticut) with state marriages are barred from the benefits of federal marriage. Rather he cavalierly claimed that since Californians didn't qualify for federal marriage benefits, my arguments were moot, as Prop. 8 wouldn't have changed them.

Rick had presented this as a theoretical debate about what kind of marriage gay people really want. Once again, my partner (and now spouse) of 13 years would like the same rights that two heterosexuals who know each other a week and get married can take for granted.

But Rick Allen changed the terms, because he really IS NOT interested in the giving us rights he takes for granted. He simply wants to distract us in the debate.

Which brings me back to California. If a critical mass of Americans gain this right on the state level, then people like Rick and Rick Allen and the Mormon Church will find it much more difficult to deny others the benefits they take for granted.

Anonymous said...

3rd anon touches peripherally on a problem with Rick Allen and those on Rick's side.

If I may rephrase it slightly, Rick Allen is not interested in what we want. He and his side treat us like objects. They infer what we want, without asking us.

We can't possibly REALLY want marriage, simply because he can't fathom why we would. We aren't people to him. Certainly not intelligent enough to make these decisions.

I have not yet seen any of these arguments that engage us as PEOPLE, that even acknowledge us as PEOPLE who want what any people want: to be married to the one we love, till death do us part.

It doesn't matter what witness we bring.

It is dehumanizing, insulting, and very hurtful.

The picture in the press of the Pro-8 crowd jumping up and down in victory, while knowing that it materially, deeply hurts people who have never hurt them....that sums it all up for me. How cruel, and hatefilled, can a person be?

Apparently quite a lot.

IT

Christopher said...

Fr. Haller,

You've sparked some further thinking at my own blog.

Doorman-Priest said...

...the role of the church, and the extent of its mendacity and bad faith...

No change there then.

rick allen said...

FWIW, here's an article from Slate that tries to say something similar to what I have been trying to convey:

http://www.slate.com/id/2204661/

[Toby, feel free to clean up if needed, as I'm not too good with links.]

Tobias Haller said...

Interesting article, Rick. But it fails on its own grounds by admitting that traditional marriage is sex discrimination (it can only happen between a man and a woman). The fact that it is based on ideas that have a "real" basis (the difference in sex) is no more helpful than noting that race is also "real" -- though certain people might be a bit ambiguous in their race as much as some are in their sex! My point is that prejudice based on any biological reality (sex or race) is not "necessary."

If the author were better informed as to the history of racism, he would know that many who argued for segregation did so on the basis that it was "natural" for the races to be separate. Is it really so long ago that people don't remember that kind of language? I was in junior high the year of the Civil Rights Act, so I remember the protests from George Wallace and others. The appeal to "nature" was a very real part of the basis of racism.

Perhaps the younger crowd who read Slate may have this lacuna in their historical database -- and apart from that (fatal to the author's argument) I think the political observations are correct; that is, as a political policy, it was wrong to assume that African Americans would "naturally" make the connection between different forms of prejudice.

In fact, many African Americans are and have been vociferous is saying the two situations are not the same, and are scandalized at the suggestion that the fay might partake in some of their own battles with the O-fay. But that is just their own prejudice speaking; no-one ever suggested the African American community was free from anti-gay prejudice. On the contrary, it has been assailed by some in that community as its greatest shame -- to say nothing of the destructive results of living on the Down Low.

At the same time, I am not among those who "blame" this community for the passage of Prop 8. As I see from the figures (based, of course on exit polls, which I do not overly trust!) IIRC something like 60 or 70 percent of people identified as African American voted for Prop 8. But they only represented something like 6% of the voters -- so they can hardly be blamed for making the vote happen the way it did. I'm always bemused by the statistical fallacy that the last voter, or the identified minority voter is the one who "made the difference." They are just one part of the whole body that voted.

David |Dah • veed| said...

I am not aware of what tactics were used to persuade voters in AR and FL, as I was busy watching CA. The tactics used in CA in the final week of electioneering were directed toward protecting children and religious liberty.

The TV ads involved video footage, used without permission and against the vocal protest of the parents of the children in the video, of a group of kindergarden children who had attended their teacher's domestic partner ceremony. (Each child attending had a signed parental permission to do so.) In spite of counter ads featuring the CA state Secretary of Education, the ad lied that children would be force taught acceptance of the homosexual lifestyle.

The other lie was that churches would loose their rights by being forced to perform gay marriages.

The man responsible for the Yes on 8 campaign said that they were behind in the polls up until the week before the election. An unflux of 20 million dollars from Mormons, including 1 million from a Utah grandson of a former church president, allowed them to create these ads which put them over the top.

Neither of these lies centered on so-called traditional marriage at all, but played on other unfounded fears of the electorate.

JCF said...

Another error of that Slate article: the claim that no one opposed interracial marriage, who did not ALSO oppose civil rights (for African-Americans).

Au contraire: it was VERY common for whites (and sometimes blacks) to support civil rights UP TO the point of interracial marriage (which is why the query "...but would you want your sister/daughter to marry one of THEM?" had such punch. In doing research on the history of U.S. ecumenism, I was surprised to see this sentiment even among supposedly "liberal" white Christians, in the 1940s, 50s and early 60s).

Everything old is new again, and the precedent of a COURT (US Supreme, via "Loving v. Virginia") establishing marriage equality (w/ nay-sayers predicting national/societal DOOM) is virtually identical. Only Constitutional changes (by bare electoral-majorities) is different.

[Thank God, per chance, the USA had other fish-to-fry in 1967-68 (assassignations, Vietnam, and more positively, going to the Moon), or such a Constitutional amendment (banning interracial marriage) MIGHT have occurred? :-/]

Robin said...

Erika says "[...] legally it’s just like marriage, and whatever anyone says, we’ve always referred to it as marriage because that’s what it is"

There are actually a few small but significant differences, none of which I suspect will have any impact upon you. (With one possible exception - partner pension rights).

Ironically some of those differences have subsequently come back to bite both Church and State, neither in a good way needless to say. It's not necessary to go into what can be rather sordid details, but sufficient to note that none would have happened if the UK had taken the honest route and merely deleted the opposite sex requirement in the existing marriage legislation.

To take a different perspective, some saw the introduction of Civil Partnerships as an opportunity to radically redefine the civil view of marriage - including finally wresting it from religious influence and connotations. Sadly, the only serious manifestation of this movement was an amendment tabled purely as a total wrecking ploy which was quickly disposed of.

Robin said...

PS in my infinite ignorance, may I enquire what the initials "BSG" denote?

Google presents some interesting and, in some cases, intriguing, possibilities most of which I suspect are rather wide of the mark!

I *think* I may have found the right chant though.

Tobias Haller said...

BSG = Brotherhood of Saint Gregory, of which there are, apparently, several, including a men's group at a Saint Gregory parish church; a fencing society; and the community in the Episcopal Church of which I am a member. I've added a link to our community website at the "BSG" at the end of my name above.

I'm also aware of the Battlestar Galactica and Back Street Girls connections, but haven't checked out the Google abbreviations list recently. Ah, the perils of Capital Letters!

Grandmère Mimi said...

With respect to BSG, I can only say that I was hoping for something more exciting, Tobias.

Just joking. It looks like a wonderful community

Erika Baker said...

Robin,
You're right, there are some differences with respect of partner's pension rights, but they can be ironed out in private agreements. We've had no problems with both our pension funds when we clarified the situation with them.

Robin said...

I'm glad you've been able to sort that one out Erika, that's most encouraging to hear.

Maybe it's just Public sector pensions that are constrained, I obviously need to go back and re-read the Act.

But that wasn't my real point, which was that by starting from the ground up with a new and different concept, the Law of Unintended Consequences was bound to rear it's head sooner or later, and it has, just as it did with the 1967 decriminalisation Act.

Robin said...

Thank you for enlightening me Tobias, I thought I was on the right track but clearly hadn't explored the site deeply enough!