Friday, May 13, 2011

David Booth on What It Might Mean to "Let the People Decide" on the Marriage Amendment

David Booth (right), an associate professor of religion at St. Olaf College in Northfield, had an excellent op-ed in Wednesday's Star Tribune.

As many of my readers in Minnesota would know, the Republican politicians who are pushing for a State Constitutional amendment banning marriage for same-sex couples are very fond of saying that the placement of such an amendment on the 2012 ballot will be a way of "letting the people decide" on this important and, for some, contentious issue.

Yet as Booth thoughtfully documents in his op-ed, "letting the people decide" has two potentially negative consequences that would reflect poorly on us as citizens.


Marriage Amendment:
What It Might Mean to Let the People Decide

By David Booth

Star Tribune
May 11, 2011

When state Sen. Warren Limmer introduced a bill to place a marriage amendment on the 2012 ballot, he declared it was time to let the people decide.

If we do so, we might consider two concepts: the "establishment of religion" and the "tyranny of the majority."

Establishing religion means establishing the precepts of one religious group as civil law for everyone. Or it means lending the authority of the government to a particular religious view.

Americans instinctively resist this and, with good reason, the Bill of Rights forbids it.

In committee hearings about the marriage amendment, many witnesses cited Christian religious reasons to bar same-sex couples from enjoying the benefits of marriage.

One declared she had "come to pray for" the amendment. Another testified that same-sex marriages flout "the intent of Almighty God." A third cited the creation of Adam and Eve.

Surely these Christian views deserve great respect. But many Minnesotans, in the free exercise of their consciences, are not Christian.

And even among Christians the claim that the Bible forbids gay marriage is not a settled consensus. It is a highly particular, contested judgment.

Religious communities and religious scholars disagree about God's intentions for marriage. Many say the Bible forbids gay marriage.

Others say that the Bible does not condemn those committed same-sex relations that are the target of the proposed amendment. The few Biblical passages that seem to address sex acts between men are of debatable relevance to modern questions about legitimizing legal commitments between faithful partners of the same sex.

People of good conscience are divided about translations and historical contexts, and about the significance of changing scientific understandings of sexuality. No one expects this debate to end soon.

So voters should notice that if this amendment were adopted it would make one disputed religious view the fundamental law of our state. Given the historical importance to Americans of disentangling religious faith and civil laws, citizens should think twice before enshrining one faction's views in our Constitution.

We should also think twice about putting a question about basic rights to a vote of the majority -- risking what John Stuart Mill called the tyranny of the majority. Ours is a nation of principles as well as a democratic nation.

No principle is dearer to us than the belief that people have the "unalienable" right to the pursuit of happiness. Surely the right to make a life with the person you choose is basic to the pursuit of happiness.

Heterosexual persons take that right for granted, as they take for granted the numerous benefits the state confers on them when they make promises of lifelong commitment and fidelity.

But if the state is going to confer advantages on some people's loving commitments, it must not withhold those advantages from others.

Obviously, not every "pursuit of happiness" can be recognized. Where there is harm or threat of harm to others, an individual's liberty may be curtailed. So far, no one has shown any threat of harm from recognizing the legal status of gay marriages.

Every purported harm turns out to be personal aversion, or offence to some people's religious beliefs. And aversion is no grounds for depriving your neighbors of equal treatment under law.

The amendment offers a distinctly unhappy prospect -- the majority sitting in lordly judgment over whether a minority possess those same rights the majority holds dear.

There have been other moments in our history when a dominant group saw fit to deprive others of their rights. Women's rights and civil rights were long delayed by the majority vote of men who did not want to recognize them.

The vote in 2012, if it comes, won't be the first time a majority has sought to deprive a minority of rights the majority enjoys, but every previous instance has been judged harshly in the light of history.

David Booth is an associate professor of religion at St. Olaf College in Northfield.

To read comments by Star Tribune readers on this op-ed, see here.

See also the previous Wild Reed posts:
The Real Losers at the MN State Capitol Today
Opposition to the Marriage Amendment Grows
Catholic Attitudes on Gay and Lesbian Issues: An Overview
Tips on Speaking as a Catholic in Support of Marriage Equality
Winona Daily News Calls Proposed Marriage Amendment "Bigoted" and "Malicious"
Law Professor: Marriage Amendment is Divisive and Mean-Spirited
Rep. Steve Simon on Gay Marriage and the Arc of History
Disappointing, But Not Unexpected: "Marriage Amendment" Bill Passes MN Senate Judiciary Committee
Governor Mark Dayton to LGBT Advocates: "I Stand with You"
A Celebration of Faith and Family; A Call for Compassion and Fairness
Quote of the Day – November 4, 2010
A Message for NOM (and the Catholic Hierarchy
Minnesotans Rally for Equality and Love
Responding to Bishop Tobin's Remarks on Gay Marriage
Archbishop Nienstedt Calls (Again) for a Marriage Amendment to Minnesota's Constitution
A Catholic Statement of Support for Same-Sex Marriage

Recommended Off-site Links:
Most U.S. Catholics Back Civil Marriage for Gays – Lou Chibbaro Jr. (The Washington Blade, March 31, 2011).
Catholics More Supportive of Gay Rights Than General Public, Other Christians – Michael Sean Winters (National Catholic Reporter, March 22, 2011 – via The Progressive Catholic Voice).
U.S. Catholics Break with Church Hierarchy on Gay Relationships – Cathy Lynn Grossman (USA Today, March 23, 2011).
Banning Gay Marriage Would Institutionalize Injustice – Gary Boelhower (
Duluth News Tribune, May 1, 2011).
The Conservative Case for Gay Marriage – Theodore B. Olson (Newsweek, January 9, 2010).


Ray from MN said...

Isn't democracy, by definition, the "tyranny of the majority?" Virtually always, somebody is very unhappy with democratic decisions.

So, I suppose the tyranny of the DFL is to be a better solution?

I was somewhat active in the DFL back in the early 70s when for the first time in the history of the state, the party controlled the Governor's Office, and the Legislature and they passed 40 years of backlogged party platform bills so fast, nobody had time to read them.

Michael J. Bayly said...

Yes, but Ray, did these "backlogged party platform bills" deprive a minority group of their civil rights or enshrine this type of discrimination into the state Constitution?

Also, we don't live in a "direct democracy." In other words, to protect people -- especially minority groups -- from the "tyranny of the majority," we have both the legislative and the judicial branches of government. It's these branches duty to protect the rights of minority groups.

By putting the issue of civil marriage rights for same-sex couples on the ballot and potentially allowing discrimination to be enshrined in the constitution, the legislative branch is shirking its duty. And in cases in other states where the judicial branch has tried to do its job in this regard, I hear folks like yourself cry "judicial activism" and "activist judges"!

I'm hopeful, though, that even if this shameful amendment is placed on the ballot it will be defeated. After all, just today a new Star Tribune Minnesota Poll shows that a majority of Minnesotans oppose amending the state Constitution to ban same-sex marriage.

Notes the Star Tribune: "Fifty-five percent of respondents said they oppose adding such an amendment while 39 percent favor a constitutional ban -- views that appear to be a sharp reversal of poll results seven years ago. . . ."



Michael J. Bayly said...

Ray, what are your thoughts on the first concept/issue that Booth raises, i.e., the "establishment of religion."

As explained by him, it means "establishing the precepts of one religious group as civil law for everyone. Or . . . lending the authority of the government to a particular religious view."

Do you find this problematic at all? What if it were the "precepts of one religious group" other than Roman Catholicism or even Christianity being established as civil law for everyone?



Anonymous said...

This is what concerns me, Michael. I actually have no objection to having SOMETHING on the ballot giving people the chance to weigh in on the issue, but that is a far cry from insisting that it be a "marriage amendment" to the Constitution.

For example, if what we really want is the "people's voice" then why not ask a slightly but significantly different question, such as "do you favor same gender marriage or not" rather than "do you favor an amendment to keep marriage as between one man and one woman?" Those are two different things.

This would then open up lively dialogue instead of shutting it off--for both sides. And that would most likely be very good for us all. The amendment question is slanted to begin with and automatically polarizes good people against one another, giving only one possible solution for people to choose from.

In short I do not believe that we do need to "automatically" legalize or redefine marriage as such without more such exploration. I personally think there are many ways to explore very real protections of both views that both could live with.

But we do need all rights on all sides protected, and I cannot see this happening with a change in the Constitution as being the only "Christian" solution provided. And, as the author rightly says, not all in our society are Christians anyway. We are a plurality and cannot ignore the various concepts of family which, like it or not, are a reality in today's world.

Mark Andrews said...

Michael, Booth would have a better point if what's being advocated are the "precepts of one religious group." Perhaps a numeric majority of Minnesotans might identify as "Christian," but not all Christians, and not all kinds & forms of Christians are for or against a change in the definition of marriage.

The position of some Christians against a change in the definition of marriage is shared by other people of non-Christian religion and no religion at all - Conservative & Orthodox Jews, Muslims, Hindus, to name a few. For those people to advocate a position in a democratic, secular society, is their right, as the their attempt advance a constitutional amendment. Of course their opponents will assert reasons to the contrary - some of which are faith-based.

One could say that the proponents of a "progressive" definition of marriage are also trying to impose a religious position on a minority, since polls say that a "majority of people favor same-sex marriage, or at least don't oppose it." Disraeli said there were "Lies, damn lies and statistics." Majority? Minority? It all depends on how you count.

Coda: is this a civil rights issue? Not all of the honored soldiers of the Civil Rights Movement in the 50s, 60s and 70s in the U.S. see this as a civil rights issue.

Michael J. Bayly said...

Richard, you raise very good points. Thanks for doing that and for sharing them here at The Wild Reed!

Mark, with regard to the whole "civil rights" piece, I invite you to read Diana L. Hayes' article here.

In this article, one that she entitles “God Don’t Make Ugly,” Hayes talks about her journey from resenting the LGBT movement’s use of civil rights language to her realization that “civil rights for those in the gay/lesbian movement are based on the same premise that all of us claim: the right to live life fully and completely in a style and manner that fits who you are, a human being.”



Clayton said...

I'm all for recognizing authentic human rights and defending them when necessary.

I'm also aware that today there are attempts to manufacture rights where they do not exist in support of certain political interests. I think, for example, of the right to privacy, which the Supreme Court found no defense or precedent for, but merely said it found in the shadows (penumbra) of the Constitution.

Ironically, advocating for the right to same-sex marriage could mean limiting human rights in an unintended way: It would mean giving the state power to modify an institution that existed prior to itself, and provide a precedent for giving the state powers that are total. See the following article for details:

Michael J. Bayly said...

Hi, Clayton!

Long time no hear! I hope you are doing well. Thanks for stopping by and sharing your thoughts on this issue.

You mentioned "attempts to manufacture rights where they do not exist in support of certain political interests." I'm not sure what you mean by this.

There are loving, committed same-sex couples raising children in our society. This is a reality. And for the people involved and their loved ones, it's an authentic reality. Such couples are contributing members of our society in exactly the same way as their neighbors who are a loving, committed opposite-sex couple raising children. How do you justify the state conferring certain rights and benefits on one of these couples but not the other?

Is one couple "manufacturing" certain rights and benefits and the other not? And what's the "certain political interest" being served here? My sense is that you think that legitimizing same-sex relationships and families by granting same-sex couples civil marriage rights is serving the "political interest" of the gay community or the "gay agenda." But, actually, do not the children of same-sex couples benefit from the civil marriage rights and benefits granted to their parents? Does not society (the "common good") benefit when all families are equally supported?

And could not it be argued that the decision to not grant civil marriage rights to same-sex couples is itself serving a "certain political interest"? Perhaps it's a "political interest" that wants society to follow its (generally) religious-based views that homosexuality is depraved and sinful and therefore should not be encouraged or legitimized in any way?

And don't you think that those supportive of denying civil marriage rights to same-sex couples should have the courage and decency to "lay their cards on the table," so to speak, with regards to how they view and understand homosexuality and same-sex relationships?

I mean, when you state "I'm all for recognizing authentic human rights and defending them when necessary," what's the underlying, unspoken beliefs about homosexuality and same-sex relationships? And why are you holding back in speaking what, I assume, you believe to be true about such realities? If these beliefs support your case, why not just get them out there in an upfront and honest way?

Finally, you say that "advocating for the right to same-sex marriage could mean limiting human rights in an unintended way: It would mean giving the state power to modify an institution that existed prior to itself." Are you referring to marriage as a sacrament here, i.e. to Holy Matrimony? I can assure you all types of marriages existed before the Roman Catholic Church declared marriage a sacrament. Also, this issue isn't about matrimony as defined and understood by the Roman Catholic Church. It's about civil marriage rights to same-sex couples -- many of whom are raising families.

I fail to see how granting such rights and benefits to same-sex couples and families would limit the civil or human rights of others.



Clayton said...


You've surfaced some great questions that help to expose some of the assumptions that are present in the current debate.

Look forward to distilling the discussion to the essential issues when time allows.

Just briefly, on the right to privacy thing:

From previous blog posts, I know you don't think too highly of Dr. Smith, but I think her discussion raises some valid points.

Anonymous said...

Michael you have known and watched my journey over the last couple years and, to the chagrin of many in the LGBT communityy I eventually re-landed, and believe i am settled, into the idea of being a celibate, "same sex attracted" and fairly traditional Catholic Christian. So I do not write this with some secret "gay agenda" in mind whatsoever.

Having said that, I still cannot imagine why there would even be a question of privacy regarding private sexual acts between consenting adults. It is that type of thinking that starts making me crazy very honestly. And the link Clayton provided from Dr Janet Smith seems to indicate it is indeed part of the underlying issue. Nonsense.

Nor is this the issue with same gender unions or their legality either. Many "marriages" or families exist without sexual contact at all. Clayton I am guessing that you believe it somehow comes into play here, but I would just point out the utter insanity of arresting all of those who committ sodomy, just for exammple--which by the way could be done, should that law be reversed, with opposite gender couples who are currently legally married as well. Just imagine the outrage if Newt and Callista were going at it and pulled out of their beds one night to face charges for instance. The farther right wing would be understandably outraged and I would scream with them myself. So why thne should this be "constitutional" with LGBT people? That would be my question.

And I would be interested in Dr Smith and Judge Bork's answers to that question first before using their arguments as evidence here.

Clayton said...

Dr. Smith draws heavily on the ideas of Mary Ann Glendon in her chapter on rights language.

Here's a summary of Glendon's book entitled Rights Talk: The Impoverishment of Political Discourse.

Among other things, she notices how modern rights language pays little heed to the flip side of rights: namely, responsibilities / civic duties.

Michael J. Bayly said...

Richard, I appreciate and admire your honesty in sharing your story and perspective. And I know that wherever your journey takes you, your life will always be one of courage and integrity.

Clayton, from my observations and experience, same-sex couples, particularly those raising children, are already living out the responsibilities and civic duties associated with marriage. It's the legal and economic rights and benefits of civil marriage that are denied them. For the majority of people -- Catholics included -- this inequality is wrong and needs to be made right.



Unknown said...

This is just a suggestion. But since the internet is available pretty much everywhere, I really wish bloggers were treat their posts like traditional press releases, with a date and a place, including the state and perhaps the country. I, for one, have no idea where Northfield is. There is a Northfield Avenue very close to me here in West Orange (California or NJ or somewhere else?), and would prefer not to have to go searching for St. Olaf's to get an idea where this is coming from. I do see from the right side column that you are from Australia and now live in the USA, but it would be so helpful if we could always tell what year and where in the world something was posted. : )