Saturday, November 08, 2008

Boy, Fallout

I didn't write anything about Prop 8 here in the lead up to the election, largely because I didn't really have any new thoughts on the subject. It was just another state adding a constitutional provision that defines marriage as a heterosexual institution. Sure, it's the most progressive state in the nation, and one of just two that was allowing same-sex marriage, but ultimately it was just another typical constitutional battle. It was marked by some heated and misleading ads on both sides, a lot of intolerance from both conservatives and liberals, and the strong support of a religious community (in this case Mormons), but basically it was nothing all that new.

And then Prop 8 passed. Same-sex marriage has banned in California. And now, at least to me, things have gotten interesting.

In the interest of full disclosure here, let me just say that I personally support civil unions, but not same-sex marriage. I would like to see all the same rights and privileges available to everyone, but I can see that a reasonable distinction can be made between heterosexual and homosexual unions.

There have been a ton of protests by same-sex marriage supporters. The other day I saw on CNN that gay rights advocates are calling for a federal constitutional ruling allowing same-sex marriage. And the backlash against the Mormon church has been, quite frankly, frightening. Protesters are picking Mormon temples as targets for protests. People are calling for a boycott of Utah, where the Mormon church is headquartered (this is the most ridiculous thing I've ever heard of. Would they be boycotting Italy if Catholics had been a little bit louder in their support for Prop 8?). And, maybe most frightening of all, there are serious calls for the Mormon church to lose their tax exempt status.

People who want to eliminate the church's tax exempt status argue that it is because the church was overly engaged in the political process. But that's about the least honest argument ever. If the Mormon church had taken a view in opposition to Prop 8, I can guarantee you that the Prop 8 opponents wouldn't be calling for the loss of tax exempt status. I can guarantee you this because those same people aren't calling for the Episcopal church to lose their status (they opposed Prop 8), or any of the Jewish groups that opposed Prop 8. No, this is based entirely on a vindictive desire to see the Mormon church punished for opposing same-sex marriage.

This is upsetting enough in this isolated context, but it really conjures up more fears for a lot of conservative religious people. One of the biggest worries opponents of same-sex marriage have is that if same-sex marriage is legal, then their churches might be looked at in a different light. I don't think anyone actually thinks their church will be forced to perform same-sex marriages, and that's not a realistic or rational fear. But it isn't unreasonable to think that somewhere down the line, if same-sex marriage becomes more culturally acceptable, that churches that don't perform it will be seen as bastions of discrimination. And if that happens - if churches are seen as the bad guys - then it'll be much easier to pass laws limiting those churches, including laws that take away tax-exempt status.

What we're seeing in California is perhaps an accelerated version of what social conservatives fear. The ban didn't pass, but all the same it is a religious community that is being targeted by gay-rights advocates. They released ads that bordered on defamation of the Mormon church. They're now protesting at those churches. And they're calling for laws that change the way the Mormon church is treated. All because same-sex marriage supporters see the Mormon church as a bastion of discrimination. Instead of being a battle to convince their fellow Californians that same-sex marriage is a good thing, gay-rights advocates have decided to battle against the people they've identified as the bad guys: a religious organization.

This might give some credence to the fears that religious people have regarding same-sex marriage.
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Two other quick points on Prop 8: First, I think it's fascinating that when you had the fight for racial equality it was largely churches leading the way, while with the same-sex marriage debate the reverse is essentially true.

Second, the ban passed 52% to 48%. That seems like a really close margin, but given the very impressive list of people who came out against the ban (including every major paper in the state, the Governor, the U.S. House Majority leader, both of California's U.S. Senators, the mayors of the biggest cities, gigantic corporations like Google and Apple, and most of Hollywood), the fact that Prop 8 opponents spent more money than supporters did, and the huge turnout for Obama that California had, I'm inclined to think that 48% is more than the ban opponents would normally get to turn out.

We're falling apart to half time

23 comments:

Zhubin said...

People who want to eliminate the church's tax exempt status argue that it is because the church was overly engaged in the political process. But that's about the least honest argument ever.

Political motivations behind an argument don't affect the strength of the argument. I'm not familiar with what the law says on the issue, but if the Mormon church violated the requirements to stay tax-exempt then it should not be allowed to remain tax-exempt.

And they're calling for laws that change the way the Mormon church is treated. All because same-sex marriage supporters see the Mormon church as a bastion of discrimination.

Let's not play dumb. Please tell me that you are not seriously confused as to why the Mormon church, after actively supporting a law that discriminates against gay couples, would be seen as a bastion of discrimination.

The Mormon church is not some innocent entity being unfairly targeted. The church ran a massive and expensive campaign to deprive millions of people of equal rights under the California constitution, rights that did not in the slightest way affect LDS or any other church. If the church is so morally offended by the prospect of gay couples that it feels it appropriate to target them, then others may be morally offended by LDS enough to target it.

Matthew B. Novak said...

I would agree that political motivations do not affect the strength of the argument, but I would observe that they can affect the legitimacy of the law itself. The law needs to be applied neutrally. To call for the punishment of just one group that broke the law and not the others reveals a lack of respect for rule of law. I'd also say that the Mormon church almost certainly didn't break the law, and the calls for taking away tax-exempt status aren't founded on a strong argument.

I certainly understand why the Mormon church is being targeted, but that doesn't mean it's right. It also seems your response here indicates a belief that there is no reasonable argument that can be made in favor of limiting marriage to heterosexual couples. I have to disagree with that view. I don't mean to defend those people who are motivated by animus and bigotry. That's wrong. Period. But there are those who support limiting marriage who aren't motivated by prejudice.

I think the Mormon church was largely motivated by two things: 1. A fear of what would happen to the Mormon church down the line (like losing tax exempt status, a fear that seems to be reasonable in light of the response we're seeing), and 2. A moral code that says homosexual behavior is wrong. Churches routinely advocate for laws against what they see as immoral behavior - abortion, unfair immigration laws, bans on gambling, etc. - and this was no different. People haven't targeted churches on this level with respect to any of these other laws.

So what gives?

Zhubin said...

Churches routinely advocate for laws against what they see as immoral behavior - abortion, unfair immigration laws, bans on gambling, etc. - and this was no different. People haven't targeted churches on this level with respect to any of these other laws.

There is a difference between advocating a position on a moral issue and spending resources to support/oppose a specific piece of legislation. LDS did the latter, and I'm pretty sure that that's expressly forbidden by the tax exemption statutes. So it's at least a reasonable good argument for taking away its status.

I don't know of any other situation where a church has been so heavily involved in the passage of a law. If religious entities have done this in the past and this is the first time one is taking flak for it, then good. Hopefully this will send a signal to religious entities that they can't casually break their part of a bargain that saves them millions at the expense of taxpayers.

It also seems your response here indicates a belief that there is no reasonable argument that can be made in favor of limiting marriage to heterosexual couples.

Not at all the point. It's the fact that they advocated on behalf of legislation that puts them in the crosshairs.

Your position seems to be that, by virtue of being a church, LDS can engage in politics without having to adhere to political regulation. No. Stay out of politics or play by the same rules everyone else does.

Matthew B. Novak said...

I was under the impression that LDS didn't actually spend any of their own money, they simply encouraged their members to do so. If they did give money directly, then that's a different story.

I still don't know that that should be enough for revocation of tax-exempt status, but it certainly comes a lot closer. I don't have much of a problem letting churches engage in politics, because that's a lovely little confluence of free speech and free exercise, and those are two deeply important rights. We give churches tax-exempt status because we like the work they do and the role they play in our society. Even if they're politically active they still serve those other purposes, so I'd let them keep their tax-exempt status. But I see the point on the other side too.

I do still think that the response is unwarranted. Yes, LDS was very active in promoting the ban. But I would say other Christian groups have been equally active over the years in promoting abortion bans. There simply hasn't ever been the same kind of targeted response against a church, and I think what's really going on here is an unwarranted level of vindictiveness.

Did LDS invite some backlash? Sure. Do their actions call for this level of response? No way.

Barzelay said...

Solution: no churches should be tax exempt.

Matthew B. Novak said...

Oh you atheists...

Barzelay said...

Also, by the way, the huge turnout for Obama is basically what passed Prop 8. Black people in California OVERWHELMINGLY supported Prop 8, and the greater-than-expected turnout of that bloc pushed Prop 8 through.

Oh, and it's also speculated that Barack Obama's failure to come out against Prop 8 was another major factor that tipped the scales.

Finally, you do realize that advocating against gay marriage is discrimination, right? You can argue that it's justified discrimination, but it's still discrimination. It's a pedantic point, but a meaningful one.

Mike said...

I'll say here what I say every time the issue of gay marriage comes up: they should ALL be civil unions. The whole problem here is that the government decided to stick its nose somewhere it didn't belong. Marriage is a religious institution, and as such, each church/temple/mosque should be free to define it as they choose completely outside of the government. So if most churches want to define it as a man-woman thing, that's fine, that's what it says in their holy text. The government, on the other hand, cannot discriminate between different "civilly united" couples. Ergo, all couples, gay, straight, whatever, get visitation rights, tax breaks, etc. Everybody wins, right?

Matthew B. Novak said...

Barzelay -

I thought about making that same point as to discrimination. The problem is the connotations attached to that word. I wish there were some other way of saying it. But yes, it is discrimination, the relevant question is whether or not it is justified.

Mike - Ah yes, I think I've heard this from you before. ;-) First off, I'm inclined to think morals is a legitimate reason for legislation, but I'm reasonably confident we'd continue to disagree on that, right? But I think there's a good reason for government to care about marriage in addition to the moral: the government is in the business of shaping our society. Marriage plays a fundamental role in the way our society looks. We could set up laws that encouraged a very different looking society. We can imagine a world where parents don't raise their kids, or where monogomy is discouraged, or where the government chooses who will be paired for procreation. I suppose these would all have their own benefits and drawbacks. We've chosen a system that encouraged lifelong-monogomy, procreation within marriage, and child development by the parents. That's what we want our society to look like, and marriage is a fundamental piece of that goal. Thus, it is proper for the government to be involved in "regulating" marriage.

As for whether it is also a religious institution, there can be no doubt. But that isn't an exclusive nature, as something can be both religious and socially significant.

I'm not totally opposed to the "all civil union" idea, but I think that would miss a piece or two of our goals, one of which is to attach a solemnity to the relationship. You can disagree with the goals, but I just don't see a strong argument that says government has no interest in marriage.

Mike said...

Assuming that you are referring to homosexual sex when you bring "morals" into the equation (a proposition I myself consider ludicrous in this instance), I will share the best quote I've read today: "If you're really serious about putting a stop to gay sex, let them get married." Anyway.

I would speculate that most people who are currently married would be so even if the government chose to call that marriage a "civil union" with the same exact legal meaning. I could be wrong, I've never been married, so you'd know better than I: are you married because the government "encouraged" you to be so? I sincerely hope not.

You write, "We can imagine a world where parents don't raise their kids, or where monogomy [sic] is discouraged, or where the government chooses who will be paired for procreation." Look around you: we're already two for three, and this in spite of the government's attempts to "regulate" marriage.

The government isn't supposed to shape us; we're supposed to shape the government. That's democracy. But perhaps you'll argue that in fact we choose the government that in turn shapes us; I'm not sure I have a counterargument to that, except to say that the broadly inclusive term "us" bothers me as someone who has rarely voted for a winning candidate. Perils of a representative democracy, I suppose :)

R.W.McGee said...

But it isn't unreasonable to think that somewhere down the line, if same-sex marriage becomes more culturally acceptable, that churches that don't perform it will be seen as bastions of discrimination. And if that happens - if churches are seen as the bad guys - then it'll be much easier to pass laws limiting those churches, including laws that take away tax-exempt status.

I'm really struggling to see anything negative about this scenario. Churches will have to adapt to suit the changing times, or face the consequences of refusing to. I know Darwinism isn't in vogue among many churches...but in this case it applies.

Matthew B. Novak said...

R.W. - The basic problem is that if we limit churches we limit free exercise of religion. I trust you can see the problems with that, right?

Jeff said...

But RW's not advocating government changing the churches. He's advocating culture changing the churches. Which is what's supposed to happen.

Mike, we choose a government to lead us and provide services for us, we don't pick them to shape us. We're perfectly capable of shaping ourselves. That the counterargument you were looking for?

Matthew B. Novak said...

Jeff -

I got the impression R.W. was talking about government changing churches, given that he quoted the line about laws being passed that affect those churches.

As for the distinction between culture and government and government and "us" and all that... I don't believe those distinctions are real at all. The government is us, and it's a tool that we use to change our culture.

Mike said...

Yes Jeff, I would more or less agree with our intentions for the government we choose, but the government has a funny way of deciding what its scope is, as I'm sure you know.

Matt, your comment raises an interesting point. I'm sure there are a million holes in this, but as a thought experiment I'll throw it out there: suppose a church decides to begin consecrating same-sex marriages. Wouldn't the government's refusal to recognize those marriages be seen as a limitation of free exercise of religion?

Matthew B. Novak said...

Mike -

Very interesting question. My response is, I guess, that there's a big difference between "refusal to recognize" and "coerce into doing something". If the government took away tax-exempt status for churches doing same-sex marriage, then yes, that would be inappropriately stepping on free exercies. But choosing not to recognize doesn't have that same coercive effect.

I'd also point out that, as it currently stands, the state does put a couple of extra requirements on marriage that churches don't necessarily. They require it to be between non-relatives (some churches have allowed incestual marriages), they require it to be between just two people (some churches have allowed polygamy), and they require filling out certain forms/paying certain fees that are seperate from the church. So there are already different restrictions. Putting the heterosexual restriction on churches isn't that odd.

Now that I'm thinking about it, there's also some restrictions placed by churches that the government doesn't require: namely not marrying divorced persons (who haven't had their marriage annulled). The state will let people marry again, the churches won't. I'm not sure what the means for all of this, but it's interesting.

Jeff said...

Matt - it means the institutions are already de facto completely separate. They're just entangled in the public imagination. Churches can (and sometimes do) consecrate same-sex marriages - they just can't be legal unions.

Here's another morsel to chew on - keeping the equal protection clause in mind, how can the government prevent two adults from entering into a contract while allowing two other adults to enter into the same contract? Remember, gender discrimination is also illegal under the Civil Rights Act, so a distinction based on gender is illegal...

R.W.McGee said...

I guess in my earlier comment I was talking about culture, inasmuch as it changes the way our government operates.

In your hypothesis you posited:

somewhere down the line, if same-sex marriage becomes more culturally acceptable,

which I assume would be the motivating factor for possible amendments to either local or federal government.

In a broader sense, I see a problem with limiting the exercise of religion because one of America's core values is freedom of choice. All individuals should be able to have the religion of their choice if they so desire.

In a practical sense do I see a problem with it? Not really. Religious fervor tends to be greater in third world countries(The Middle East, South America, Africa) as compared to Western Europe, Japan, England, Australia, or China. I don't think it's a coincidence.

Matthew B. Novak said...

It's been a while since con law, but I'm pretty sure that gender discrimination isn't illegal per se, it is just reviewed under a strict scrutiny framework, such that the state must have a compelling reason for making the discriminatory law.

As for the contract thing... this is a piece of why I favor civil unions; the idea is that they'd be the same contract as a marriage contract, with different names to highlight a distinction between homosexual and heterosexual unions (and if that distinction isn't obvious...)

Finally, though church and state take different approaches to marriage, the institution of marriage has implications for both. Those implications are not completely seperate because they're both tied into the union of the same couples. There are purely religious aspects, sure. There are maybe even purely civil aspects (those are probably in part religious too, but maybe), and there are certainly aspects that are both (think: having and raising children). So to call them seperate really doesn't do the institution of "lifelong-union between two people" justice. I simply can't concieve of my marriage being parcelled out into two seperate aspects. I doubt most people could. They're not just entangled in the public imagination, they're entangled in reality.

Matthew B. Novak said...

R.W. - As far as culture change goes... I think there's an interesting little question here as to whether churches change the culture (or keep it the same) or whether they change to reflect the culture. Probably a good part of both.

As for same-sex marriage, I think churches will probably stand fast, for a long time - at very least our lifetime - that same sex marriage is not acceptable. The question becomes whether or not the government coerces them into taking a different approach. If the cultural change prompts the government to pass laws that coerce religion, then that's a big problem.

R.W.McGee said...

If the cultural change prompts the government to pass laws that coerce religion, then that's a big problem.


I agree with that, I think cultural sea-change is more likely to act in the same way it did during the civil rights movement (if it does at all, which I am not convinced it will) The segregation occurred through the passage of Laws; Jim Crow and Plessy v. Ferguson I believe. In the same way, the current protections of marriage are occurring as amendments to state constitutions...they are being legislated.

It took the cultural upheaval of the Civil Rights movement to have those laws overturned, and it would take a similar cultural movement to see these amendments overturned. (And that's the point at which, I noted in my earlier thread, the church would either have to adapt, or probably see a significant downturn in it's congregation.) So, I don't see it ultimately being accomplished by the government interacting with churches. Separation of church and state has to work both ways.

Whether this will ever happen, I am not so sure. This issue though very serious to the people involved, is far from slavery. In many ways the real argument is over semantics: I think MOST Americans believe that same-sex couples should enjoy the same human rights as all citizens, and this can be accomplished through civil unions. What many same sex couples want is to be 'married' and this is what threatens churches.

Will a debate over these semantics ever be enough to inspire a movement similar to the civil rights movement? I have my doubts.

AGJ said...

This has developed into an interesting conversation. Beliefs shaping Society; Society shaping Government; Government shaping churches...

Are we ready for State-Sanctioned Churches? Can we allow the State to enforce legislation on religious beliefs? Will we allow the State to tell us what we can and cannot believe?

Exactly what led the passengers of the Mayflower here? There is no true separation of church and state, this we know. But can we allow our representative government restrict our churches? What will we call this Religion? The Church of the United States?

I agree that there are many churches that support many different forms of legislation, this has always been a part of American Culture. Why do we need to change this? Does it really lean one way vs. the other?

Be careful of the cause you rally... it will affect the fabric of our nation for better or for worse.

Ben said...

I just now got the your title to this post. I find that fact more amusing than the title itself.

I have nothing constructive to add to this conversation.