[LCC] [Fwd: Mormons Stole Our Rights]

[Terrence Lockyer]

Forgive me for weighing in on this:  being neither a 
citizen nor a resident either of the state of 
California or of the United States of America, my 
opinion may appear more than usually irrelevant - in 
some eyes even presumptious;  however, I do write with 
some knowledge of the issues and arguments from 
following the successful local efforts to achieve a 
non-discriminatory legal framework for religious and 
civil marriages and unions, and similar efforts in 
other places;  and I wonder if the kind of thing 
represented by the post forwarded by Ruby Blondell is 
the best approach to the situation, even as I 
recognize, understand, and share the sense of shock, 
disappointment, and dismay that such a measure as 
California's Proposition 8 (or indeed those in Arizona 
and Florida;  which however are perhaps less disturbing 
in that they did not involve the use of a tiny 
percentage-point split to eliminate an existing 
constitutional right determined by the judiciary) could 
be placed on a ballot, and passed, even in the course 
of an election which in several ways represented a 
welcome departure from the politics of fear, prejudice, 
and inequality.

I understand the issues of funding especially that have 
made the Mormon churches in particular a focus of 
opponents of the California measure;  however, I wonder 
if it is quite fair to maintain that focus when it is 
clear that it was neither predominantly nor indeed even 
largely Mormons who voted in favour, and equally clear 
that political support for the measure came - to 
mention only the support from those alleging a 
religious motive - from a variety of churches and 
religious figures and groups, including notably 
Catholic bishops, and various prostestant and 
evangelical organizations, some of which conducted 
familiar types of hate- and fear-based campaigns around 
sexuality in the context both of the specific measure 
and of the election as a whole (from the allegation 
that Mr Obama supported "comprehensive sex education" 
for children of kindergarten age, to the now notorious 
"Letter from 2012 in Obama's America" distributed as a 
viral by the Focus on the Familay Action lobby group 
which is apparently legally separate from - precisely 
to avoid IRS rules on tax-exempt status - but 
associated with Dobson's similarly named organization, 
and claiming among other things that Mr Obama's 
presidency would lead to the Boy Scouts being compelled 
by the Supreme Court to "hire homosexual scoutmasters 
and allow them to sleep in tents with young boys"); 
while it is also true that there were and are groups of 
Mormons (albeit not representing or accepted by the 
hierarchy of their church) who opposed the ballot 
measure and their coreligionists' political campaigning 
in its behalf.

Quite apart from the threat such measures represent to 
the liberties and human rights of ALL (since, though I 
myself have never either wished or intended to marry 
anyone, the limitation or removal of the right of any 
individual to marry whom they wish is of necessity also 
a limitation or removal of my own right), I should 
think that religious groups and people as much as 
anyone have a great deal to fear from such measures and 
their passage, due to the assault they represent upon 
both the freedom of religion and the separation of 
church and state.  As of now, more than thirty American 
states appear to violate these principles through laws 
that express implicit state approval of the doctrines 
and policies of some religious groups, and disapproval 
of those of others, by legislating for the civil 
contract of marriage in such a way as to recognize and 
protect the kinds of marriages performed and recognized 
by the former, and to deny recognition and protection 
to those of the latter, on no rational basis but that 
of discrimination on the basis of biological sex:  note 
that the discrimination is indeed based on sex as 
distinct from sexual orientation, since no state (and 
for that matter no major church I know of) either 
permits or bars as a matter of principle marriage on 
the basis of an alleged or attested sexual orientation 
of either party, but solely on the basis of an 
empirical determination of biological sex.  For this 
reason, incidentally, it is also proper to speak of 
"same-sex marriage", rather than "gay" or "homosexual 
marriage" (and to note that in a jurisidiction like 
South Africa, same-sex marriage was constitutionally 
necessary not only because of a constitutional 
protection from unfair discrimination based on sexual 
orientation, but ALSO because of a constitutional 
guarantee of equality regardless of sex), and indeed 
the facts from jurisdictions allowing same-sex marriage 
or civil partnerships support this, as, while most 
same-sex couples contracting such unions appear to 
identify as being in a sexual partnership, there are 
individual instances in which these measures have been 
employed to create family relationships and associated 
legal rights and responsibilities between unrelated 
individuals of the same sex who explicitly do not 
identify as being in a sexual partnership, but rather 
as wishing to create a legally recognized relationship 
between themselves that confers inheritance and other 
mutual rights and responsibilities.  In addition, none 
of the supposed rationales for bars on same-sex 
marriage OTHER than discrimination based on biological 
sex hold water:  they cannot be justified on the basis 
of a state's alleged interest in reproduction, since no 
state to my knowledge legislates against the marriage 
of couples who are by reason of congenital incapacity, 
illness, elective procedure, age, or intent unable or 
unlikely to reproduce through intercourse with each 
other (and indeed even the Catholic church will not 
refuse to perform a marriage if the couple cannot have 
children;  though in at least some instances it might 
if they are known to intend not to while being able 
to);  and bars cannot be based upon the supposed 
interest of the state in providing children with 
parents of different sexes, since none to my knowledge 
legislates that a parent of one sex shall not be 
permitted to care for children in the absence of one of 
the other, and none to my knowledge legislates that a 
child shall not be permitted to be raised in a 
household consisting of or dominated by individuals of 
only one sex;  and bars cannot be based on an alleged 
state interest in the preservation and promotion of 
traditional models of marriage, since all or most 
recognize marriages conducted according to a range of 
older and more recent religious and civil forms, none 
legislates against multiple consecutive marriages or 
the dissolution thereof, and none permits multiple 
simultaneous marriages, which are among the most widely 
attested of traditional forms.  In short, the state's 
interest in marriage is universally in the registration 
of, and the administration of the legal and 
administrative consequences of, a civil contract 
between two individuals, so that a bar on same-sex 
marriage cannot be justified or explained except 
through discrimination based on biological sex, which 
serves no obvious legitimate public interest, unless it 
is believed that the state may legitimately align 
itself with and enforce the doctrine and policy of some 
religious groups against those of others.  Even if that 
is not the direct intent of the limiting legislation, 
and even if that legislation does not arise solely from 
the views of religious groups;  its effect and result 
is to lend state support and public legitimacy to the 
views of those religious groups that limit marriage in 
the same way, and to deny them to those that do not 
impose such limits.

If states are permitted to legislate in this way either 
by statute or by referendum, effectively giving 
approval through state recognition of the result to the 
doctrines of some churches, and disapproving those of 
others, there would appear to be no rational grounds 
for denying legislation of other kinds imposing the 
religious doctrines of some upon all, especially if 
raw-majority voting is considered sufficient reason to 
amend laws and even constitutions.  This renders such 
measures an intolerable limitation by the state of the 
rights of religious groups to equal and impartial 
treatement before the law of the land, a limitation to 
which there exist only two possible solutions:  that 
the state should recognize and protect equally the 
forms of marriage between two adults recognized and 
performed by all churches and religious groups;  or 
that the state should recognize and protect no forms of 
marriage at all.  (I do not, by the way, refer here to 
forms of marriage or intimate partnership involving 
more than two individuals, because they are not 
directly comparable in that their recognition and 
regulation would of necessity entail a substantially 
different system of rights, obligations, contracts, and 
legal and administrative issues from those entailed in 
marriage between two parties;  whereas there is no 
substantial difference in these systems, and therefore 
in the state's role and interests, between marriages 
differing only in terms of biological sex.)


Terrence Lockyer
Johannesburg, South Africa