Friday, October 17, 2008


by A. Scott Loveless J.D., Ph.D

1. Men and women are different, and the union of a man and a woman is different than the union of two men or two women. Throughout history marriage has been defined as the union of a man and a woman for powerful reasons relating to the complementary differences between men and women. The differences combine to create a unique and essential social relationship. Marriage channels human sexuality into responsible and socially valuable functions, namely adult complementary sexual union that results in the procreation, nurturing, and training of the next generation. It gives couples and society a future. The combination of the opposite sexes creates a distinctive integrative union and social relationship. No two men together or two women together can do this. Just as the combination of the different chemical elements Na (sodium) + Cl (chlorine) together make salt, but Na + Na or Cl + Cl do not.

2. Where same-sex marriage is legalized, tolerance is actually restricted, not expanded. The law categorizes and treats relationships in three ways: some are barred and prohibited; others are tolerated and permitted; and some others are preferred and privileged. Historically, same-sex relationships were prohibited, but in recent decades they have become tolerated and permitted in the United States and many other countries. But tolerance is quite different from preference. Conjugal marriage always has been the most preferred and privileged social relationship because it is the foundation of society. The claim for same-sex “marriage” abandons tolerance and seeks special preference; it actually removes the preferential treatment of conjugal marriage, rather than elevating same-sex couples. Where same-sex marriage is legalized, tolerance is restricted. Freedom of religion is undermined, and freedom of speech is curtailed. Children in public schools are taught not true tolerance but the moral relativism of equivalency, i.e. that different forms of human sexuality are no more than matters of personal preference. Disagreement with this “principle” is not tolerated.

3. Equality does not require treating different relationships the same. Same-sex marriage advocates purport to desire “equal treatment” with heterosexual couples, but it is inequality to give full marital status to relationships that are so markedly different in lifestyle and social impact. Same-sex marriage really means the near-term elimination of actual marriage. As a matter of nature, it cannot fulfill the same functions as traditional marriage. The effect is to pull traditional marriage down to the lowest common denominator and soon render it meaningless. Our society cannot accept this outcome.

4. Marriage is a pre-existing social institution, not a mere legal creation or social construct. Marriage between male and female is a uniquely ubiquitous social institution, found in all civilized human societies. Finding marriage already in existence, the law has recognized the importance of marriage by regulating and thereby protecting it. The law does not create marriage any more than it creates parents, land or water, but the law regulates those resources -- marriage, parenting, land, and water -- in the public interest.

5. The legal definition of marriage signals important social functions. The way the law defines and treats marriage sends powerful social signals to all members of society about marriage roles and what is expected of married persons. By diluting the meaning of marriage, reducing it to a mere romantic relationship between any two persons, it dilutes the meaning of marriage itself and ignores and denigrates the integral responsibilities of marriage and marital parenthood. Conjugal marriage reinforces the taking of responsibility for the natural outcome of the sexual act: children; same-sex marriage weakens that tie.

6. Legalizing same-sex marriage harms families and makes more vulnerable those who invest their lives, and sacrifice their careers, for their marriages and families. In states and nations where same-sex marriage has been legalized, the public commitment to families and conjugal marriage is significantly weakened. Adoption has been impaired. Mothers are marginalized, and social support for them weakens. Sexualization of society increases. Public support for marital parenting wanes. Marital childbearing and childrearing drop, and public education becomes more propagandistic. Churches and religion are harassed.

7. Legalizing same-sex marriage harms children by depriving them of a mother or father, and removing the clear legal signal that marriage connects parents to children and parental responsibility. All children need and deserve to be raised by a mother and a father; they are deprived of that by same-sex marriage. Two moms are not the same things as a mom and a dad. Legalization of same-sex marriage is false advertising to children; it teaches them that same-sex coupling and parenting is fully equivalent to dual gender marriage and parenting. It deprives some children of a parental connection with half of their biological heritage and family. Parental authority is diminished.

8. Legalizing same-sex marriage harms society by the transformative power of inclusion and by weakening the basic infrastructure of society. Conjugal marriage historically has “scripted” responsible living and civic virtue. Gay and lesbian lifestyles do not. By redefining marriage to include gay and lesbian couples, the social meaning of marriage is transformed by the power of inclusion; the culture of infidelity, promiscuity and polyamory that characterizes gay and lesbian sexual relations will redefine what marriage means in a way that will undermine that social institution and bring suffering to many families. Society should not engage in “consumer fraud” by sending the message that there is no difference between conjugal marriage and same-sex unions.

9. Marriage is defined to serve the public interest, not private special interests. Marriage is a public institution, not a mere private arrangement. The law allows many private relations organized and defined as the private parties wish, but the institution of marriage between a man and a woman exists and is protected by law to promote fundamental social needs, including the necessary link between husbands and wives and between parents and children for critical social needs, not just to bind boyfriends and girlfriends and other romantic interests.

10. The radical redefinition of marriage is a matter for the people, not the courts, to decide. In a democracy, the power to decide fundamental questions about basic social institutions is reserved to the people. It is not a judicial function. By a vote of 4-3, four California justices simply imposed their personal political preference under the pretext of interpreting the state constitution. That is why even strong supporters of same-sex marriage, such as the Washington Post, criticized the California Supreme Court decision for mandating same-sex marriage by judicial decree. It seriously violated separation of powers and undermined the integrity and independence of the judicial branch.

11. Many constitutional amendments have been adopted to protect threatened basic institutions and rights. That is how America got the “Bill of Rights.” That is why our nation passed the Civil War amendments – to correct a terrible decision of the U.S. Supreme Court. That is why voters in 27 American states recently have adopted constitutional amendments to protect marriage as the union of a man and a woman. That is why 37 nations around the world also have adopted constitutional provisions protecting marriage as the union of a man and a woman. When cherished rights and relationships are threatened, people pass constitutional amendments to protect them. That is why Proposition 8 has been proposed.

12. Proposition 8 is about marriage, it is not about homosexuality. The issue is whether the basic social institution of marriage should be radically redefined. The issue is not about homosexual relations, which have long existed without needing (or wanting) to be called “marriages.” It is not about homosexuality, or the nature-vs-nurture debate about the cause of homosexuality. It is not whether homosexuality is biologically hard-wire-determined, or predisposed, or environmentally caused, or experientially influenced, or a matter of choice. It is not about homosexuality; it is simply about the institution of marriage. Today, tragically, many marriages fail, but legalizing same-sex marriage will not solve that problem. Rather, by reducing the meaning of marriage, and applying the “marriage” label to gay and lesbian relations, which have an even higher rate of instability than heterosexual couples, it will only worsen the problem.

13. It doesn’t end with redefining marriage. Legalization of same-sex marriage is the beginning, not the end, of the social revolution gay and lesbian activists promote. Consider what has happened in Massachusetts since same-sex marriage was “normalized” by a one-vote majority of the Superior Court there: 1- Catholic Charities, which included among its charitable activities the placement of children for adoption for a century, was told following the Goodridge decision that their refusal to allow adoptions by same-sex married couples was discriminatory and prohibited. When their request for a religious exemption was denied, that organization felt compelled to get out of the adoption business, rather than compromise their religious principles; 2- Sex education classes in the Massachusetts public schools now are required, based on Goodridge and attendant reforms, to include “neutral” instruction on homosexual acts as part of the curriculum, so as to give equal treatment and avoid discrimination. So much for “normalization” and for the right of parents to direct the education of their children on these vital matters.


America has made great strides in eliminating inequality. And as a melting pot of diversity we pride ourselves in trying to accept all people regardless of sex, race or religion. But we don’t melt ourselves into one gender, one color, one mold. We allow distinctions to be made without taking equality from those distinctions. We call a human being a man or a woman without saying that either is less human. A person can be Jewish, Muslim or Buddhist and still be equal to an atheist or Mormon. The different name connotes exactly that, differences, without making one more or less equal. And because same-sex partnerships are different than traditional marriages, they should be called something different--not to take away equality but to distinguish between two different types of unions.

Every time a heterosexual couple has sexual relations, there is usually a chance that a child could be born. (Obviously with birth control, age and other factors this chance can be greatly reduced, even eliminated.) But for many there is still some risk of creating a child, even with the best of plans to prevent it. That risk, is why society created marriage – to protect expected and unexpected children.

There should be a distinction between the type of union (one between same-sex partners) that outside intervention to have a child and the type of union (a man and a woman) that takes continuous planning not to have a child. One union is much riskier when it comes to creating children. Homosexual and heterosexual love may be equal, but the possibility of an unexpected child is not equal.

Another factor that is not equal is the thousand-year-old definition of marriage. All literature since the beginning of written language uses very similar definitions for the terms marriage, wife and husband. By calling the very new idea of homosexual unions “marriage” dilutes the word “marriage” and completely destroys the words “husband” and “wife,” which will become archaic and meaningless. We will have to explain to our great grandchildren when they read literature that “wife,” used to mean a woman that was married to a man.

I like the word “wife.” It means I am a woman, I am married to a man, I am taking a risk with my body if I accidentally get pregnant whether I have the child or not. That’s one of the reasons women get married to men, because the risks of having sex with a man are so great, that they want to be married.

When Martin Luther King fought for the rights of all Americans, he didn’t try to take away rights from some and give them to others. He tried to make America fair for all. If homosexual couples are allowed to call their unions marriage, they are taking the words “marriage” and “wife” from me. It’s kind of like calling all soft drinks Cokes. If I’m a Pepsi, I don’t want to be called a Coke. Though the differences are slight, there are differences.

Homosexuals can register as partners. They could even come up with a new word if they don’t like the word "partnership." And maybe because lesbian couples are different from gay male couples, they might want to come up with two terms. But please, we can protect the rights of all and still protect the definition of marriage. One man, one women, maybe some children if all goes right or not. That’s the risk we have called "marriage" for eons.


The opponents of Proposition 8 are trying to redefine a word that has represented a union between a man and a woman from the beginning. It’s amazing that our society thinks we have the right to change the meaning of something that nature is so clear about defining. Only a man and a woman can create a child. We call their legal commitment to each other and to their children “marriage” and it has always been thus.

There’s an analogy that sounds kind of silly but clearly makes a point. Changing the definition of “marriage” is kind of like trying to redefine a peanut butter and jelly sandwich. When you make a peanut butter and jelly sandwich, you put peanut butter on one slice of bread and jelly on the other and then you put the two slices together. Suppose someone were to come along and say, "I don't like jelly! Just use peanut butter on both slices of bread—but I still want you to call it a peanut butter and jelly sandwich." PB&J simply doesn't describe the new sandwich. You can't redefine a PB&J just because you like the way this name sounds better than calling your new sandwich a “peanut butter and peanut butter sandwich!” It's a different combination and it needs its own term.

Opponents of Prop 8 have tried to frame the need to redefine the term “marriage” as a civil rights issue. Consider the often-aired commercial where the bride is trying to make her way to the altar, but she keeps encountering obstacles. She trips over cans tied to the back of a car; a flower girl tries to block her way; a wedding guest trips her with a cane. Finally, after someone restrains the groom from going to the bride's aid, these words come up on the screen: “What if you couldn't marry the person you love?” Someone unfamiliar with California law might think, "Oh my gosh, how horrible that the state of California refuses to acknowledge the rights of two people that love each other to be joined together, regardless of their gender!” That commercial very cleverly misguides people. It leads them to believe that Proposition 8 is going to prevent same-sex couples from creating a legally binding union with all the rights of traditional married couples. That's not what this is about! Same sex couples in California that would like to commit to each other legally have been able to do that for years. We call it a “domestic partnership.” By California law, domestic partners have all the rights and privileges of married couples. This vote isn't going to have any affect whatsoever on these legally guaranteed civil rights. This vote only applies to what we call that union. Opponents of Prop 8 want to change the recipe for their peanut butter sandwich but still call it a PB&J. But a PB&PB will never be the same as a PB&J.



Is Proposition 8 discriminatory? Opponents claim that same-sex couples should have the sames rights as married people. Guess what. In California, they already do. By law, same-sex couples who register as domestic partners have all the rights and privileges of married couples. Proposition 8 protects the name of marriage without Here's how the timeline to prove it:

The Evolution and Legalization of Same-Gender Relationships in California
1999 - The Domestic Partnership Registration Act is enacted by the California State Legislature, establishing a statewide registry for domestic partners. A “domestic partnership” was defined as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” While stopping short of affording same gender couples the highly prized term “marriage” and the full range of legal rights and obligations associated with marriage, the Domestic Partner Registration Act bestowed basic legal recognition, rights, and obligations on domestic partner registrants, including hospital visitation privileges and certain employee health benefits of a partner.

2001 - The next several years saw the legislative expansion of the scope of benefits afforded to domestic partners. In 2001, domestic partners became eligible to make medical decisions for an incapacitated partner, to utilize employee sick leave to care for an ill partner or the child of an ill partner, to use unemployment benefits if relocated due to a partner’s job, to use stepparent adoption procedures to adopt a partner’s child, and the right to sue for the wrongful death of a partner.

2002 - The Probate Code was amended to afford domestic partners the right to automatically inherit a portion of the separate property of a deceased partner, and the Unemployment Insurance Code was amended to provide for 6 weeks of paid family leave to care for a sick spouse or domestic partner.

2003 - Assembly Bill 205, also known as the California Domestic Partner Rights and Responsibilities Act of 2003 (Domestic Partner Act), significantly expanded the rights afforded to domestic partners

“in order to secure to eligible couples . . . the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the State, as the laws of California extend to and impose upon spouses.”

2005 - The final draft of the Domestic Partner Act became effective on January 1, 2005, under Family Code Section 297.5, which provides that:

“Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”

2005 - Family Code Section 297.5 (b) was added in order to equalize the rights and obligations of former registered domestic partners with those of former spouses.

2005 - Family Code Section 297.5 (c) was also added in order to afford a surviving registered domestic partner upon death of the other partner the same rights and responsibilities afforded to a widow or widower upon the death of a spouse.

2005 - Family Code Section 297.5 (d) further provides that the rights and obligations of a domestic partner, former domestic partner, or surviving domestic partner shall be the same as those of spouses, former spouses, or surviving spouses.

2005 - Eight months later in the case of Koebke v. Bermuda Heights Country Club, the California Supreme Court discussed Family Code Section 297.5 in addressing the marital status discrimination claims of a lesbian couple registered under the Domestic Partner Act against a country club that denied the couple benefits extended to married club members. In ruling that the lesbian couple had an actionable claim against the country club under the Unruh Civil Rights Act, the California Supreme Court stated:

“a chief goal of the Domestic Partner Act is to equalize the status of registered domestic partners and married couples.”

2006 - The California Legislature amended Family Code Section 297.5 to afford registered domestic partners another privilege routinely afforded only to married couples, to wit, the opportunity to file income taxes jointly or separately for purposes of state income tax returns, with the earned income of jointly reporting domestic partners to be recognized as community property.

2007 - The California Legislature passed a law (Cal. Stat., Ch. 567) allowing domestic partners the opportunity to change their name to that of their partner during the domestic partner registration process.

2008 - In the case of In re Marriage Cases (43 Cal. 4th 75(2008)) the California Supreme Court held that same-sex couples have the legal right to marry in the State of California. While the decision is widely considered to be a big step, legally it simply bestowed the highly prized term “marriage” upon a type of union that quietly albeit steadily developed the legal equivalent of marriage.