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Philosopher kings: Transformative decisions best left to people's representatives

Published: Sunday, July 13 2014 12:00 a.m. MDT

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Marriage is changing. As society’s “bedrock” institution, marriage unites children to their fathers and mothers, making marriage, across culture and time, universally a gendered institution. But over the last several years, marriage has become increasingly genderless in the wake of well-meaning efforts to extend societal recognition to gays and lesbians. Recent cultural acceptance of same-sex relationships has paved the way for marriage’s redefinition, but it is actually society’s changing attitudes about what marriage means that are ultimately responsible for its transformation.

Last month’s 2 to 1 decision by the Tenth Circuit Court of Appeals finding Utah’s Amendment 3 unconstitutional highlights these shifting attitudes toward marriage.

A year ago, Supreme Court Justice Samuel Alito memorably observed that same-sex marriage—first legalized in the United States a decade ago in Massachusetts—is “newer than cellphones or the Internet.” Yet the two-judge majority for the Tenth Circuit found a fundamental right to same-sex marriage “deeply rooted in the history and tradition of the United States.” Their reasoning? Traditional constitutional principles, they argue, are being newly applied in light of increased understanding about sexual orientation. Thus, “it is not the Constitution that has changed,” they insist, “but the knowledge of what it means to be gay or lesbian.”

Unquestionably, the personal stories of men and women attracted to their same gender have significantly changed attitudes about “what it means to be gay or lesbian.” Speaking personally, we are tremendously enriched by our association with individuals who experience same-sex attraction. We are grateful for our friendship with participants of www.gaysandmormons.org and www.ldsvoicesofhope.org. Their personal stories are deeply moving to us. Along with numerous others, our personal relationships with same-sex attracted men and women have profoundly influenced our understanding of one of the most complex, difficult and sensitive issues of our day.

But increased understanding about sexual orientation does not require endorsing same-sex marriage. Elder Lance Wickman, general counsel of the Church of Jesus Christ of Latter-day Saints, observed last year that, as a culture, “we no longer demand that people remain in the closet or silent about important elements of their personal identity. While creating challenges, in many ways this openness and acceptance of human diversity can be very positive.” Traditional marriage advocates can appreciate these positive aspects without changing their beliefs about marriage’s meaning.

Indeed, marriage is changing not because of “what it means to be gay or lesbian,” so much as because of “what it means to be married.” Consider these conclusions about marriage from the two-judge majority for the Tenth Circuit that decided Utah’s Amendment 3.

To find an historical basis for same-sex marriage, the majority concluded that the key element of marriage was “freedom of choice” to marry. But as Judge Paul Kelly noted in dissent, “marriage does not exist in a vacuum; it is a public institution, and states have the right to regulate it.” We would add that society not only has a right but an obligation to do so. That’s why Utah sets age limits and prohibits multiple marriages (bigamy). And to promote children being raised by their fathers and mothers, Utah defined marriage as between a man and a woman.

But emphasizing adult choices about marriage deemphasizes children’s needs for marriage. The majority’s focus on choice rather than responsibility explains much about the changing attitudes about marriage. Consistent with this adult-centric view, the majority flatly rejected that “procreation is an essential aspect of the marriage relationship,” prioritizing instead the “personal aspects” such as “emotional support and public commitment” as well as “access to legal and financial benefits.”

When they did consider children, the majority focused on child rearing rather than child bearing, simply noting without concern that children of same-sex couples “may lack a biological connection to at least one parent.” Yet decades of research, and a generation of fatherless children, confirms that children do best when they grow up with both biological parents.

The majority unhesitatingly condemns as a “palpable harm” the effect of Amendment 3 to “deny to the children of same-sex couples the recognition” that the couples are married. But it dismisses, as merely “a claim of uncertainty,” the reality that children need a mother and father. This value judgment makes societal recognition of being raised by a married couple more important than the sociological reality of being raised by a married mother and father.

The two-judge majority insists that same-sex marriage is a constitutional imperative, but Judge Kelly’s dissenting opinion clarifies that “this case is best understood as an effort to extend marriage to persons of the same gender by redefining marriage.” The catalyst for that change may be well-meaning support for diversity, but the impetus is actually society’s changing attitudes about the fundamental meaning of marriage.

Prioritizing adults’ choice and status in marriage diminishes children’s needs for completeness and stability from marriage. Of course, democratic peoples are free to change marriage’s meaning. But such transformative decisions are best left to the people’s representatives, rather than to unelected judges faced with the temptation, in Judge Kelly’s words, of being “philosopher kings.”

Michael Erickson is an attorney. Jenet Erickson is a family science researcher. They live in Salt Lake City.

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