I firmly believe that everyone who should know better, should know best.
On December 20, 2013, around 2 p.m. on the Friday before Christmas, a federal district court judge overturned Utah’s marriage law. In doing so, Judge Robert Shelby harmed freedom in Utah and, perhaps, for a nation.
Supporters of traditional marriage and the natural family often, and rightly, point to the benefits of Utah’s marriage law. Utah is an exceptional place to live, work and raise a family precisely because of the benefits derived from its pervasive culture of marriage and family. Economists can point to the natural benefits of a child-rich society. Criminologists can point to the natural benefits of intact families. Psychologists can point to the natural benefits of nurturing biological parents and strong intergenerational bonds. Social workers know where functional people abound and where dysfunction thrives.
There is an obvious societal, or state, interest in supporting traditional marriage and the natural family. Men, women and children are happier, healthier, better educated, more prosperous and physically safer in the nurturing confines of a traditional marriage and natural family – all uplifting qualities that further the cause of freedom.
The state interest is a purpose, not a person. It’s easy to understand. Just think of driving on our roads and highways. The state interest requires a transportation system with rules. Driving would be chaos without traffic signals, road signs, painted lines and restrictions on who is qualified to drive. Drivers are safest and, more importantly, freer to travel where they wish because of traffic laws. The state has an interest to create and impose traffic laws in a free society.
Interestingly, the state has no interest in what color car you drive, or what make or model. It simply cares that you meet the criteria to drive and anyone who meets the criteria to drive may receive a permit – but there are criteria.
Clearly, traffic laws infringe on our autonomy, perhaps annoyingly so, until we realize that these laws not only help to keep us and others safe but actually allow us and others to get where we are going – almost 100 percent of the time. This state interest isn’t about me personally, or any of you; it’s about the common good.
In Kitchen v. Herbert, Judge Shelby threw the state interest in marriage under the bus and, to do that, he also had to throw away any notion of a state interest. In the motions for summary judgment before the court on December 4, 2013, plaintiffs seeking to overturn Utah’s marriage law argued that a “loving, committed relationship” defines marriage. Plaintiffs were forced to make that argument so they could claim equal protection under the 14th Amendment.
For the plaintiffs, marriage no longer could be defined as a man and a woman. It could no longer be defined as having any intrinsic state interest such as child bearing, child rearing or the complementarity between a man and a woman. Marriage no longer could be defined in terms of long-standing established law, custom or tradition. For plaintiffs, marriage has to be defined in terms of any consenting adults. Unfortunately, traditional marriage and the new “gay marriage” are substantively and materially dissimilar. So, to claim equal protection, plaintiffs had to argue that the state interest in marriage isn’t about a general purpose, it’s about their personal emotions. Only then could plaintiffs logically and reasonably argue that any consenting adults should be allowed to have their marriages recognized by the state. Only then could plaintiffs argue that there was any kind of similarity between their literal friendships and actual marriage.
This argument is both genius and evil. If they can convince everyone that marriage is just a universal set of human feelings and emotions, any relationship can be a marriage. It’s genius because everyone has feelings and emotions. It’s evil because its inherent selfishness deceptively undermines what marriage really is.
It is no coincidence that in his opinion Judge Shelby took substantial time to describe in detail the lives of the three plaintiff couples. He views their friendships as materially similar to marriage. Here’s what that sounds like from Judge Shelby, “Laurie and Kody met and fell in love in 2010. Besides the fact that they are both English teachers, the two share an interest in books and gardening and have the same long-term goals for their committed relationship. They wish to marry but were denied a marriage license….” In other words, a “loving, committed relationship” is the new standard for the state interest in marriage, according to Judge Shelby.
As defined by Judge Shelby, the state interest in Utah’s marriage law vanishes. Indeed, there no longer exists any state interest in marriage outside of the momentary and arbitrary wishes of any consenting adults. If marriage can mean anything, it really means nothing. According to Judge Shelby’s reasoning, any consenting adults can legally marry.
And that opinion, ladies and gentlemen, is not a slippery slope. It’s a cliff.
Because everyone who knows better should know best, I’ll explain the state interest in traditional marriage and the natural family.
If you were in charge of building a free society, how would you go about it? You certainly would prioritize individual liberty but would soon realize a conflict as you created necessary order, like traffic laws. You would realize that individual liberty is only one component of a free society. An equally important component is order. Because individuals live and work together in society, order is essential to maintain peace and facilitate prosperity.
As you began building a free society, your struggle would be to maintain that delicate balance between order and liberty. You would search diligently for an “operating model,” as it were, and you would find that you only have five real options: the individual, the family, the church, the corporation or the state.
What you’re looking for in an operating model is one central concept, one functional mechanism, to fairly balance order and liberty. Clearly, you would fail if you chose the state to be the fundamental unit of society. The state is inherently restrictive. Likewise, you would immediately rule out the individual as the fundamental unit of society. Individuals are inherently selfish. In both cases, the delicate balance you seek would be tipped to one extreme or the other.
The church has a transcendent social quality required for order. But, you would soon realize that the church model would slide into its own version of forced conformity, inevitably threatening personal liberty.
You might choose the corporation as the fundamental unit of society. The healthy desire for earned success combined with the need to provide the comforts of life seem to be universal human goals. The corporation would maximize individual liberty and, under the necessity of regulating contracts, could provide a stable order. The problem is that the corporation would fail to recognize any person who, for whatever reason, could not compete. The wheelhouse of a corporation is competition if it is anything. Hence, the divide between the haves and the have-nots would become insurmountable and the delicate balance between order and liberty would be disrupted.
You would soon discover that your best choice is the natural family. When family is the fundamental unit of society the delicate balance between order and liberty is maintained – we create order without force and liberty within reasonable boundaries. Only the natural family perfects other competing institutions. It holds the state in check. It suppresses selfish individualism. It gives practical meaning to the church’s transcendent virtues. And it creates a stable environment for industry and a moral context for free markets. The natural family is the fundamental unit of society because it provides a free society with equal amounts of stability and autonomy – with no more force than the force of culture and familial bonds.
If we, the people, have an interest in citizens avoiding government dependency in a free society, we would look to an institution that effectively focuses and domesticates men, protects and values women and successfully educates and nurtures children into productive adulthood. These are the roles of the natural family and that is why it is the highest state interest in a free society.
For Judge Shelby to deny these historic and practical roles in balancing order and liberty is to deny freedom itself. And to deny these roles in the name of freedom adds insult to injury.
Marriage is the cornerstone of the natural family. Marriage is unlike any other intimate relationship. Marriage is not simply friendship. Cohabitation is not a marriage. Any two or more people can live together and not be married. Any two or more people can have sexual relations and it isn’t called marriage. And any two or more people can vow to be loving and committed and, still, it is not a marriage. There is no substantive transcendent moment in a non-conjugal relationship when one goes from single to married. This is because marriage is more than an adult-centric psychological relationship.
Marriage is a conjugal relationship wherein a man and a woman – and quite literally only a man and a woman – not only vow to live in a “loving, committed” way but actually create a comprehensive union unlike any other human relationship. This comprehensive union transcends “loving and committed” relationships. As Princeton Professor Robbie George explains,
First, [marriage] unites two people in their most basic dimensions, in their minds and bodies; second, it unites them with respect to procreation, family life, and its broad domestic sharing; and, third, it unites them permanently and exclusively.
The plaintiffs in Utah’s same-sex marriage case told the Court that marriage is simply and only a “loving, committed relationship.” Folks, I have a very familial loving and committed relationship with my dad. He lives with me. I take care of him. I pay his bills. I feed him. I have his power of attorney. I make his health decisions. I love him. I am committed to him. And what we have together is not a marriage.
Marriage is purposefully and necessarily child-centric – and, as far as the state interest goes, this purpose applies to a man and a woman who cannot have biological children and even couples who choose not to have children. There is nothing intrinsically permanent or exclusive about friendship. There is nothing intrinsically procreative about same-sex relationships. And there is nothing intrinsically familial about a “loving, committed relationship.” Marriage has purposes that transcend the selfish interests of consenting adults.
Just as homosexuality and heterosexuality are materially dissimilar, so too are same-sex relationships and marriage – both in how they benefit people personally and how they benefit society generally. Judge Shelby got it wrong and it’s up to the silent majority to keep it right.
Last summer, Sutherland Institute commissioned a survey of Utahns’ attitudes about “gay rights” and religious freedom. We were interested to know how Utahns would respond to inevitable conflicts between first freedoms and sexual politics. What we found won’t surprise anyone. Utahns value love of neighbor and fairness for all. They also highly value their faith. In fact, when forced to choose between being nice to others or protecting their faith from political attacks, Utahns overwhelmingly choose religious freedom and the right of people to peacefully live their lives as they see fit.
The television ads you’ve seen tonight are a result of this research. The First Freedoms Coalition and educational campaign are also a result of this research. While the issue of same-sex marriage and its negative impact on the cause of freedom are vitally important in a free society, there is a more imminent and direct threat to your personal freedom of speech, freedom of association, freedom of conscience and your right to make a living. It comes in the form of “nondiscrimination” laws.
You should know that our research shows that Utah is a loving and welcoming state. And the fact that even though 18 Utah municipalities have passed nondiscrimination ordinances since 2009, there have been only three reported cases of discrimination – all three ruled unsubstantiated – proving Utahns do not discriminate as partisan activists claim we do. Utah does not have a discrimination problem, unless mere political disagreement is now called discrimination.
Nonetheless, a bill has been introduced at the state Legislature seeking to pass a statewide nondiscrimination law on the basis of sexual orientation and gender identity regarding housing and employment. This bill not only challenges Utah’s at-will employment law and private property rights, it establishes a new legal class of people under the law called sexual orientation and gender identity. Even as it legalizes discrimination for special interests with all of its built-in exceptions and carve-outs to make the bill easier to swallow at the Legislature, this bill would place a bull’s-eye on the back of every religious adherent to a church and every person of individual conscience in Utah who dares to disagree with an activist’s sexual politics.
Sutherland Institute opposes a statewide nondiscrimination law – in any form – as long as it selfishly champions special rights and sexual politics.
In addition to a renewed support for traditional marriage and the natural family, I hope you leave here tonight with a renewed sense of citizenship and with a specific call to action. I hope you leave here tonight with a better understanding of what’s at stake and a better way to share your concerns with your elected representatives, family and neighbors.
There are so many reasons for people to disagree. Everyone within the sound of my voice won’t agree on everything. But, in humility, I’ll argue that there are some things on which we must agree. There are some things we must understand the same way if freedom is to be protected in Utah.
- We must agree that marriage can be only between a man and a woman. We must understand that marriage is substantively different from any other kind of human relationship.
- We must agree that the natural family is the fundamental unit of society. We must understand that the family is the only natural human institution that can adequately maintain the delicate balance between order and liberty.
- And, we must agree that freedom is much more than just individual liberty. We must understand that human happiness is our highest purpose and that selfish individualism – on display in Judge Shelby’s decision and throughout today’s sexual politics – is the enemy of freedom.
If we can agree on those three things, the cause of freedom has a chance in Utah.
This past weekend, evangelical minister Ravi Zacharias spoke at the Mormon Tabernacle on Temple Square and warned us about the evils of moral relativism and a world in which a growing number of people believe in nothing and so believe in everything. He said, “We talk so much about one’s rights, that we talk so little about what is actually right.” Perhaps that’s a fourth thing we must agree on: truth exists, right and wrong exist, “knowable through the moral law written on the hearts of all.”
Speaking of “the moral structure of freedom” and its “inner architecture,” Pope John Paul II said before the United Nations General Assembly in 1995,
Freedom is not simply the absence of tyranny and oppression. Nor is freedom the license to do whatever we like. Freedom has an inner ‘logic’ which distinguishes it and ennobles it: freedom is ordered to the truth, and is fulfilled in man’s quest for truth and man’s living in the truth. Detached from the truth about the human person, freedom deteriorates into license in the lives of individuals, and, in political life, it becomes caprice of the most powerful and the arrogance of power.
On another occasion Pope John Paul II said that authentic freedom is “never freedom ‘from’ the truth but always and only freedom ‘in’ the truth.”
As lawyers will say, you are entitled to your own opinions but you’re not entitled to your own facts. Many of you are now aware that Sutherland Institute became involved in helping to bring the best legal counsel and legal strategies to bear in defending Utah’s marriage law at the Tenth Circuit Court of Appeals. Supporters of “gay marriage” and other “gay rights” are entitled to their own opinions but they are not entitled to their own facts. We will continue to fight for truth.
Ladies and gentlemen, Utah is undergoing a relatively quiet but nonetheless determined attack against our first freedoms. This attack comes to us in a form of godliness. It is the voice of equality, tolerance, special rights and individual liberties. It would have us rewrite the Title of Liberty from, “In memory of our God, our religion, and freedom, and our peace, our wives, and our children” to “More important than your God, your religion, and your freedoms, are our special rights!” I am reminded of angry Ammoron who closed an epistle to Moroni with these words, “I am a bold Lamanite; behold, this war hath been waged to avenge their wrongs, and to maintain and to obtain their rights to the government.” This is a time for composure and prudence.
We ask you to keep your eye on three pieces of legislation this session. The bills are now being numbered and Senator Stuart Reid is their sponsor. The first bill is titled “Religious Liberties Amendments” to strengthen religious freedom and protections for individual conscience in light of increasing governmental and legal attacks to first freedoms. The second bill is titled “Religious Freedom Instruction Requirements” to make religious freedom an area of special focus in our public schools – rising generations must understand the importance of religious freedom in a free society. And, third, if needed, the “Prohibited Adverse Actions Amendments” is a prudent alternative to a statewide nondiscrimination law. This bill solves any real cases of irrational discrimination in employment and housing and avoids sexual politics.
In closing, I know many of you struggle personally in negotiating love and law. To be Christ-like is to love your neighbor. These are very sensitive issues. No doubt all of us would settle for a spirit of “live and let live.” Unfortunately, the other side, for some reason, isn’t as understanding. I testify that we can love our neighbors as ourselves and stand for truth. You don’t have to choose between love and law. But you do have to find that place of courage in your hearts to at least care about the things that matter most to you. In that cause, you are not alone.
The people who know better are the vast majority of Utahns. They don’t picket or protest or shout down their opponents. But it is time that this silent majority takes a stand. On behalf of everyone associated with Sutherland Institute, we will stand with you.
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