A Moderate View on Measure 36 and Same-Sex Marriage

By Nathaniel I. Cordova of Salem, Oregon, an assistant professor of rhetoric & media studies at Willamette University.

Passing measure 36 would directly undermine our fundamental values of limited government, human dignity, and individual freedom. In fact, one of the most vexing problems regarding the same-sex marriage measure in our ballots this November stems from the apparent unwillingness by some of its religious defenders to consider the implications of the proposed amendment to our Constitutional freedoms and liberties.

The basis of our democratic form of government centers around the belief that human beings have inherent rights that exist prior to government's formulation of those rights. Such rights include at a minimum, the fundamental rights to life, liberty, and the pursuit of happiness. The framers of the Constitution also saw fit to enumerate other civil rights without which individual or public wellbeing could not be assured. These other rights included freedoms of religion, speech, the press, assembly, and more.

Above all, such a democratic philosophy sought to respect and elevate human dignity and individual rights over the power of government. In fact, our Constitution was seen by many as an exercise in protecting the rights of individuals from government tyranny. Limited government and freedom of conscience are central to our political lives because they respect human dignity and individual freedom. These fundamental values advance the moral autonomy of each individual. The exercise of such moral autonomy in turn maximizes human freedom. Individual moral autonomy does not mean license to do anything we want. It means that in matters of conscience, government should tread lightly. Above all, moral autonomy means that government should not impose any religious test as a means to deny equal opportunity to its citizens.

Within this formulation, freedom of religion was rightly seen as a fundamental right of individuals and not a matter for excessive entanglement by government because such entanglements could have adverse effects on our freedoms. In fact, such concerns were originally promoted by religious folks who insisted on what we now call the separation of Church and State. The right to worship as my conscience dictates, or not to worship at all, is a central right that enhances my moral autonomy, and respects human freedom. Free exercise of that right means that our government should neither promote nor endorse any one set of religious beliefs over another because so doing presents us with a formula for tyranny.

Yet, some opponents of same-sex marriage advocate on religious grounds for a constitutional amendment defining marriage as solely between a man and a woman. Their arguments include marriage as sacred, as legitimated by 'natural law,' and as a last chance to preserve traditional marriage. They also state that a vote for measure 36 does not constitute discrimination. In short, religious proponents of measure 36 believe in a traditional view of marriage as dictated by God and supported by a divine order in nature, and expect the state to impose that view on all Oregonians regardless of individual beliefs.

Measure 36 would not maximize human freedom or dignity but would instead subvert freedom of conscience by undermining the moral autonomy of the individual, and enshrining such discrimination in our state constitution. In short, measure 36 brings about what the framers never intended, tyranny over others on the basis of narrowing the rights that exist prior to government. Not only does measure 36 curtail the rights of a specific class of citizens in our society, but does so on the basis of the gender of one's chosen life-partner. Hence, measure 36 is discriminatory from the very start.

We should not sacrifice core values of democratic citizenship for the imposition of policies based on somebody else's divine authority.

Voting no on 36 protects our democratic form of government, human dignity, and freedom of conscience. Voting no on 36 is a moderate, even conservative, but definitely progressive position that keeps a check on government encroachment on individual rights, and opens the door to real compassionate conversation about our common humanity and our common good.

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    In the old binary conservative/liberal mode, something like Measure 36 just doesn't seem to fit. It is neither conservative in a political sense--it radically alters our central governing document. But neither is it liberal, because although it would be a big change, it is rather toward a kind of forced religious conservatism, not (to quote Webster) "open to new ideas for progress, and tolerant of the ideas and behavior of others; broad-minded."

    When the right decided to set off on its forced-morals agenda in the late 70s, all bets were off on liberal and conservative. But I nevertheless like your conclusion it is moderate, conservative, and progressive to vote against 36.

  • Nacho Cordova (unverified)
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    Jeff: Thanks for the comments. I agree with you. Ultimately I decided to write it in that voice, with the binary pretty much intact, because originally it was directed at conservatives on campus. But you are right, the labels and the binary are old news, and not very helpful in today's political climate. Certainly not when Kerry is branded the most liberal senator in the U.S. Senate! The issue of Same-Sex marriage is a significant one for me. I have now a 20-page document on arguments I've encountered against same-sex marriage -- and my brief rebuttals - that I've used with students and others interested in the arguments made. Thanks for the opportunity to post my column here, I truly appreciate it.

    Best,

    Nacho

  • pat hayes (unverified)
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    Hi Folks...

    Prof. Cordova's belief that his proposal reflects a moderate viewpoint points out the disconnect between academic pointy-heads and reality of American political and cultural thought. Any number of surveys and polls suggest that a plurality of Americans do not subscribe to the major elements of the US or state Constitutions [except, of course, the US 2nd] and a majority don't believe in the whole documets. I haven't seen surveys limited to policy makers and legislators but their actions suggest a similar contempt.

    The notion that Prof. Cordova expresses is, to many Americans, unabashedly radical and, therefore, dangerously suspect. Measure 36 is likely to pass in Oregon although by a smaller margin than similar measures in other states. That being the case, how might we best approach the aftermath ?

    There will obviously be some form of legal challenge although I believe the chances of success are limited in this arena absent courage on the part of the judiciary. When GWB made reference to "Dred Scott" my mind was on Measure 36 and its impacts.

    As a [small "l"] libertarian Democrat I believe we need to remove marriage from the secular sphere and push it back into the religious. In code, marriage needs to be replaced with contracts, with the code providing a basic format and the parties adding whatever they wish. We cannot, unfortunately, affect federal law but can certainly ensure that Oregon citizens gain every benefit that the state describes.

    I'm extremely concerned that framing the argument in the context of marriage implicitely recognizes a religious element. The discussion needs to be framed on the constitutional elements of liberty, freedom of association and based in contract law.

    Thanks for the opportunity to comment.

  • Anne Dufay (unverified)
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    Pat writes>>>I believe we need to remove marriage from the secular sphere and push it back into the religious. In code, marriage needs to be replaced with contracts, with the code providing a basic format and the parties adding whatever they wish. We cannot, unfortunately, affect federal law but can certainly ensure that Oregon citizens gain every benefit that the state describes.<<<

    I totally disagree. You are proposing to strip me of my marriage, and all it means to me, strip me of all the Federal rights inherent in it, and give those expanded rights ONLY to those chose submit their marriage to the strictures and tenets of the church. (Which I, and so many millions of others, have not.)

    Talk about asking folks to shoot themselves in the foot, in order to make everyone, except the religious, equally lame. Hand it to them on a platter, why don't you?

    I'll fight to support the expansion of the benefit of marriage that I have, and that I cherish and benefit by so clearly, to same sex couples.

    But this goggle-headed notion of up is down and down is up can only empower the church in an extraordinary and unprecedented fashion.

    Think about what you're saying -- you're going to give the CHURCH the right to determine who gets thousands of civil, federal tax and inheritance protections/benefits?

    Can you just imagine -- "check box 29 if you were married in a church. If you check yes, compute the following deductions, if you check no, skip the deductions and just go down to the "you pay" line, sucker -- or, get thee to a church...

  • Anne Dufay (unverified)
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    And, one more thing :-) I don't mean to belabor the point, but I keep hearing people, very well-meaning, some of them, say, give marriage back to the churches.

    For centuries people fought to take FROM the churches their power over our most primal, our culturally most powerful icons: birth, marriage and death. And, we won. We won. And, that proved to be a good thing for our civilization.

    Now folks propose handing back these rights -- they need to think about whose water they are carrying -- and the meaning of the phrase "unintended consequences."

  • Nacho Cordova (unverified)
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    Oh Pat, I'm not so sure I'm an academic pointy head, although I do shave my head, and who knows, perhaps by know it is less round and more pointy. I do teach argument however, and to start I must say that the general argument about academics being out of touch or somehow "eggheads" is rather ludicrous. Most of the academics I meet are more in touch, and involved, with what goes on in their communities than many non-academics. I certainly have not spent my whole life in academia either.

    In any case, abiding by the Constitution is not radical, although it probably is something that folks who don't spend time thinking about their government might find surprising. I did choose to couch the argument in those terms because it was primarily intended for an academic audience. That being said, not much should be radical to the common person regarding mutual respect. The argument should be clear: if you don't want others to impose their religious beliefs on you don't impose yours on them. Our government should not be used to impose particular religious beliefs on others.

    I agree with both you and Anne in some ways. I think marriage historically has been one of the most (if not the most) oppressive institutions for women and children. However, it also brings joy, and serves as a significant social institution. If government is to be involved in marrriage, let it not be in conjunction with any religious group, nor legitimizing any specific faith tradition. I agree with Anne that marriage is for many much more than a mere contractual relationship for the securing of benefits. People speak of marriage as the height of human relationships. They say that they feel mystical connections to each other, a joining of "souls" (soulmates), and a holy union (sacrament), etc. That's all fine and dandy.

    What opponents of same sex marriage fail to understand is that the "more" that likely exists in a same sex marriage does not have to be legitimized through the religious beliefs of those who oppose such marriages. Perhaps most importantly, that our government should be quite limited (if involved at all) in judging that somebody's feeling of something that transcends the contractual relationship is better than another person's. On what grounds should our government judge between a same sex couple's religious feelings at being united versus those religious feelings of a heterosexual couple? (or no religious feeling at all for that matter) The situation is clear to me. Opponents of same sex marriage do not respect the "more" that same sex couples find in marriage. Unfortunately, opponents of same sex marriage expect that their "more" will be respected and accepted by others, and legitimized by the State.

    About the aftermath... that's what the courts are for. I'd also like to see a better concerted campaign than "I don't know how I feel about gay marriage, but I guess I don't want to change our constitution..." That's a rather insipid campaign that does nothing to combat the dehumanization and fear mongering that proponents of measure 36 are promoting and with which they are getting away.

    Thanks again!

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    Anne, you misunderstood Pat's point. He's arguing that marriage is two things - a religious sacrament and a state-sponsored contract. He's arguing that the religious sacrament should be provided by institutions of faith. He's arguing that the legal contract should be provided by the state.

    That way, the churches could give "marriage" to whomever they want. The state would then give the legal contract ("civil union" or "domestic partnership" or whatever) to both straight and gay couples.

    This would disconnect the M word from the legal standing. This is a civil-unions position taken by many liberals, who are tired of seeing a religious sacrament given legal standing. They'd like it separated.

    Alternately, I've discussed this with gay marriage advocates who point out (rightly, I think) that this smacks of "marriage was fine until the gays wanted it, and now you want to abolish it?" Much akin to high schools that allow lots of interesting student clubs - until a GLBT club is formed, then they ban all clubs rather than allow a single GLBT club.

  • randy (unverified)
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    I, too, gravitate towards the civil union for everybody position. The government should not be in the position of lending it's power and imprimateur to what is essentially a religious experience.

    Especially when so many governmental benefits flow from the state of being in a state-santioned legal partnership.

    In this fight there are so many issues at play. What is the role of government in determining social policy? What does the Bible (o the Koran or Torah, for that matter) say about the sacrament of marriage?

    Ultimately, I believe, it is betwen your partner -- and God. It is not the business of the state, which exists for wholly non-eclesiatical reasons (pardon the spelling -- there's no spell-check on BO).

  • Anne Dufay (unverified)
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    Kari - I do not misunderstand his point. What I'm saying is - I won't accept giving up my standing as "married" in order to take a secondary, lessor, "other" designation of "civil union." And, I don't accept that others, who I think should, fairly, rightly, be accorded these same benefits as well, should be forced to accept some pale substitute, either.

    (And, realistically, you think this idea has a snowball's chance in hell? You think I'm alone in being unwilling to give up my status as spouse? It's a hairball, a distraction, an excuse -- a lame "out" for those looking for a cheap way out of supporting gay marriage.)

    But, back to playing it like a real argument -- Nor will I give up my child's "birth certificate" for something called a "record of arrival" or some such gobbley-gook, even if you tell me it's almost as good as a birth certificate, though it doesn't confer the same federal benefits of same, such as, allowing one to get a, hum, passport...

    But, how can one argue - the church always kept those records until recently, it is historical. As was the prerogative of the clergy in determining whether one would be buried in "hallowed ground" or unhallowed. All depended on one's sinning or not nature...

    No. Separate but not equal, is not equal. Giving back the keys to these primal, human institutions to the religious right is cultural suicide on our part. There is no real strategic benefit we will ever gain from this. Just, loss. That's why they're playing this card on us.

  • Anne Dufay (unverified)
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    "Ultimately, I believe, it is betwen your partner -- and God. "

    Jesus. Most respectfully, but no. My husband and I are married -- and, it's between us (and our kids, and our extended families, and our friends. But, God, no). And, you don't get to put him in there for us, though you're free to make that choice for yourself.

    At least, that's true now. Some would change that, it appears. Not me.

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    Separate but not equal, is not equal.

    Having argued the "civil unions for everybody" position for years, I'm still interested in the thought - but one conversation with a friend (who is prominent in the No on 36 campaign, but whom I won't name) convinced me that I agree with you, Anne.

    In addition to the "marriage was fine until the gays wanted it" aspect, there's also the tremendous backlash that would ensue if it were perceived that "marriage was abolished" just because gay and lesbians wanted into the M Club.

    That would be bad. So, I've know come full circle - and there's no reason, absolutely none, to deny this package of additional rights, privileges, duties and obligations to any pair of consenting unrelated adults that wants it.

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