Rod Dreher

Elderly New York Liberal Parodies Self

Marriage and Double Standards

By Rod Dreher • February 25, 2012, 12:21 PM

What would you say if I told you that a judge refused to perform legal wedding ceremonies because of her personal opinions about gay marriage? Would you say there was something wrong with her conduct? Would you call her a bigot who has no business on the bench? Would you call her a principled defender of conscience rights?

Take a look at the case. Granted, the law in her state does not mandate that Judge Parker marry anybody; it’s up to the judge’s personal discretion. Still, what’s the moral difference between Judge Parker and Rose Marie Belforti? Discuss.

115 Responses to Marriage and Double Standards

← Older Comments

Siarlys Jenkins says:

February 27, 2012 at 3:26 pm

str, you sound just like those Muslims Rod used to write about when he was in Dallas… with their instant knee-jerk denials that they had any aspirations to rule the USA or any land at all… which, indeed, most Muslims don’t, and neither do most Catholics. I’m still laughing over Al Smith’s question “What the hell is an encyclical?” But the church has a record, and for all your blithe dismissals, the historical record, and the expressed philosophies of certain notorious princes, is plain for all to see.

But we do agree, don’t we, that even if a judge must marry every legally qualified couple who appear before them, a Roman Catholic priest may indeed refuse to marry couples who qualify before the civil law, but are NOT recognized as a marriage by the canons of the Roman Catholic Church?
John D says:

February 27, 2012 at 6:46 pm

I have to concur with those who point out that the judge may, at her discretion, officiate at weddings. So, for that matter (if Texas is like other states), may quite a number of elected officials (some states even permit this of former elected officials). However, I would guess that Rick Perry probably doesn’t do that many weddings. Like the judge, it’s not part of his job. It’s a perk.

Then there’s the town clerk. Yeah, it’s part of her job. She has to do this, or announce that she cannot do her duties and resign. Perhaps she can become a judge.

If a judge said she would only do opposite-sex weddings or only same-sex weddings, once again it is her prerogative. If a town clerk said that she would only issue licenses to same-sex couples, she would be obligated to step down.
Sean says:

February 27, 2012 at 6:56 pm

In this country, “married” is a legal status. You can be religiously “married” all you want (just like polygamists in far-flung corners of Utah), but until the state says you’re married, you’re just playing house.

This country guarantees equal treatment under the law. Marriage has legal benefits that are inaccessible to homosexuals. (Wikipedia: “According to the United States Government Accountability Office (GAO), there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges.”) Denying all of those to homosexuals is unequal treatment. I don’t see what’s so difficult about this.

It matters little what marriage has been, what you think it is, or what any church thinks it is, as far as the law is concerned. What the law demands is justice. (Yes, I know: it could do a better job of that.) There’s nothing “just” about selectively enforcing who gets to be in the marriage club based on a criterion that has been rejected as a legitimate basis for discrimination. Especially when the law and our society shower benefits on people just for being married.

If your church doesn’t like what’s become of the legal definition of marriage, maybe your church should consider changing the name for its own purposes, and let “marriage” be the secular institution it actually is and has been for all of our history.
Siarlys Jenkins says:

February 27, 2012 at 9:36 pm

Mitchell Young has a good point, which is being totally missed by all the denials so far put forth. He may have exaggerated the details and shortened the timeline, but for most of human history, there was no such IDENTITY as homosexual, and I continue to wonder whether it was not in fact an artificial construct.

There were circumstance in which men committed homosexual acts with or upon other men, and other circumstances in which women found stimulation among each other. There were also a variety of cultural attitudes toward each. But most or all of these men, and almost certainly all of these women, were considered capable of, and available for, heterosexual pairing as well.

Homosexual acts were proscribed in some cultures, prescribed as religious rituals in others, taken in stride in others, but they were not EXCLUSIVE to certain individuals as THE preference. Married men away on long military campaigns had passionate love affairs with their comrades in arms (e.g., Achilles and Patroclus), then went home to beget more heirs on their wives (who had better still be inviolate of male lovers, but if they played around with their females attendants, no harm done). Kings of the Medes and Persians had wives, and boys, both. The boys might have girlfriends on their off days, and even marry eventually.

It has been pointed out more than once that when Paul wrote his condemnatory passages about men lying with men, the dominant paradigm of the Roman Empire was that rich and powerful men showed off their power and impunity by imposing their sexual hormones on lesser men who could not meaningfully retaliate. It remains dangerous to impose our paradigms of the last fifty years on all human history, as if our notions are THE natural meaning of gayness, rather than one more passing cultural fad.
IanH says:

February 28, 2012 at 1:04 am

So Sean, does that mean you’d be okay with an elderly Muslim man marrying an 8 year old girl?
Siarlys Jenkins says:

February 28, 2012 at 10:05 am

Sean, the legal benefits of marriage contemplate

1) That sustaining a family is more expensive than being on your own,

2) That the general community has an interest in promoting, possibly even subsdizing, stable marriages.

Neither of these directly apply to a gay couple — who often have two substantial incomes with no dependents and drive up the price of real estate in communities where there are a substantial number of them.

No person has ever been denied the “benefits” of marriage on the grounds that “you are a homosexual.” If you are a man and want the “benefits” of marriage, marry a woman. The law is not stopping you. There is no discrimination against any individual.

The fact that some individuals prefer something other than marriage, a distinct human relationship that the general community does not feel it has the same social investment in promoting, does not work unequal protection of the laws. No heterosexual who moves in with a member of their own sex can get the “benefits” of marriage thereby either.

And, as Mitchell and I have outlined, in the long term view of human history, to even assert that there is a distinct identity, “gay,” is somewhat dubious. On the other hand, I accept that Geoff G. is the expert on his own feelings and life, so I wouldn’t close the book on that question either.
Sean says:

February 28, 2012 at 10:10 am

IanH, I’m sorry, did I write something about age of consent laws? Did I endorse polygamy? Did I suggest in any way that religious belief is in a justification for ignoring the law?

I can’t for the life of me fathom how what I wrote even prompted that question. For the record: if Catholic doctrine doesn’t trump the Constitution, Islamic doctrine doesn’t either. No one gets to rape little girls because they think God told them to, because raping little girls is against the law for reasons having absolutely nothing to do with marriage or religion. And until someone is legally competent to sign a contract, I don’t see what the possible justification could be for legally allowing someone to “marry” them.
Sean says:

February 28, 2012 at 11:49 am

Siarlys,

The legal benefits of marriage are written out, for anyone to view, in our federal and state laws. What they “contemplate” is, I would suggest, broader than what suggested in your comment, but their content is rather more explicit. Regardless, the notion that 2) only applies to heterosexuals is absurd; if the general community has an interest in promoting stable marriages, then it has an interest in promoting them for all its citizens, not just some of them. Keeping 3-5% of the population arbitrarily single doesn’t serve the end of “stability.”

Neither of these directly apply to a gay couple — who often have two substantial incomes with no dependents and drive up the price of real estate in communities where there are a substantial number of them.

I hardly see how the fact that some gay people are richer than some straight people has any bearing on how the law treats them regarding marriage. Are you actually suggesting that benefit 1) doesn’t apply to people who have money? Never mind the gay couples I’ve known in which both partners wait tables or work in customer service, who could obviously use the extra cash. That may be literally the weakest argument I’ve ever seen from you (which still puts it above the best some of the commenters here offer, but I digress).

No person has ever been denied the “benefits” of marriage on the grounds that “you are a homosexual.” If you are a man and want the “benefits” of marriage, marry a woman. The law is not stopping you. There is no discrimination against any individual.

If marriage’s utility for the community lies in stability, it’s hardly a recipe for stability to say, “go ahead and marry someone, for whom you have no natural affection, for money.” Our culture has privileged the ideal of marriage for centuries, made it something that is an expected part of adulthood, and passed many laws to encourage people to marry. Of course, no one is forcing anyone to marry, but as you and I both agree, there are good reasons to promote it anyway.

Why those good reasons don’t apply to homosexuals, who are just as capable of benefiting from stable relationships as you or I, is beyond me. “Because you’re gay you can’t marry who you love (unlike everyone else), but you can enter into a sham marriage for money” is hardly what I would call “equal treatment.” (It sounds more like “separate but equal,” which is reason enough to deeply distrust “compromise” calls for civil unions.)

I’m quite familiar with the emergence of a homosexual identity in the 19th-20th Century. Yes, it’s new, and could just as well be a historical blip as a whole new understanding of what it means to be human. Neither of us will ever know the answer to that question. That says nothing, however, about the justice of barring homosexuals from what we all agree is an important civil institution right now, within the letter and the spirit of the law as understood at this point in our history.

If our laws and culture say that homosexual relationships are as legitimate as heterosexual relationships, the law should reflect that understanding, if “legitimate” is to be more than just a word. Marriage is, if nothing else, a tangible stamp of legitimacy (which is precisely what many opponents of SSM oppose). Once it is clear that justice demands equal treatment, that understanding has to be reflected in the laws wherever they bear on homosexuals and homosexual relationships, which certainly includes marriage.
Franklin Evans says:

February 28, 2012 at 12:15 pm

Late to the thread, enjoyed reading it, and I mostly agree that Rod’s original question has not been addressed by most of the comments so far.

Still, what’s the moral difference between Judge Parker and Rose Marie Belforti?

Having read both articles, and after considering my impression of Rod’s intentions here, I must answer thusly: It is not a moral question.

Allow me to argue by contrast (as opposed to analogy, please bear with me): Hypotheticating freely, replace Judge Parker with a 90-year-old male judge with a dozen great-grandchildren and not one (out) homosexual in his entire line. He makes the statement more or less exactly as Parker did. What would your reaction be? Let us add to the mix/chaos, and paint our replacement judge as a well-known, devout Christian who even includes that and his personal, moral aversion to SSM as preface to his statement.

Would he be grandstanding? Would he be accused of taking (since this is contrast) an immoral stance?

The other side of that coin comes down to a simple reading of the employment contract under which Ms. Belforti legally conducts her job. If that contract gives her the power to set the schedule for her office, to delegate responsibilities and make the access to certain services by appointment only, then the lesbian couple’s “we didn’t want to wait” is easily dismissed as an expression of entitlement, and their suit has no legs on which to stand.

In neither case were access lines crossed. Judge Parker has numerous colleagues who enjoy using their privilege to preside at marriages. She routinely names them to couples in the course of refusing to preside for them. Ms. Belforti could be chastised for refusing to make a “moral” exception the hurried couple, but she did not act to prevent them from acquiring their marriage license. In both cases, the only damage done was to personal convenience.

On a personal note, given Parker’s (at least) possible bias in this, I found her remarks refreshingly ethical in the face of rampant exceptions and bending of rules by people for the only reason that they can on behalf of friends, family and co-religionists. Issuing marriage licenses and presiding at a civil marriage ceremony are small blips on the crowded radar of nepotism and croneyism, and not just in government agencies.
Siarlys Jenkins says:

March 1, 2012 at 12:22 am

Sean, this is one of those funny issues on which I find myself aligning with people and viewpoints I am more often jousting with, and vice versa. But, I think there are some considerations here more fundamental than whether you think homosexuality is OK, or believe it is an abomination unto the Lord that will destroy the fabric of our culture.

There may be many things antiquated about our marriage laws. Among other things, for most centuries of human history, there was a distinct division of labor within marriage. It was NOT, in general “daddy makes the money and mommy keeps house.” There was hard physical labor all around, but certain skills women mastered, others men mastered, and both sets were necessary to sustain a household. That’s why if a wife died, the widower in very little time remarried, much less if a husband died, the widow remarried. (“What’s love got to do with it?”) Then, there is the fact that heterosexual sex begets children, more often than not, and the children had to be nurtured and socialized.

All these were something the general community had an interest in promoting. Arguably, affectionate love is not.

Our tax and property laws, as they pertain to marriage, contemplate some inequality in financial capacity… e.g. one parent’s income supporting an entire household, while the other does the very extensive and demanding work of socializing the children, etc. Rich families, of course, farmed child rearing out to nannies or “The Help,” who often got more love from the kids than distant and austere parents. Two parents each working part time so both can help maintain the house and supervise the kids poses the same considerations. Two parents working two jobs each while the kids raise themselves can generate (a) Columbine, (b) the ghetto equivalent of little self-centered creatures who literally don’t understand that there are rules or that they owe anyone respect for anything.

The remark about gay couples driving up real estate is something I observed in San Francisco in the 1980s… two incomes, no dependents, they could afford to pay more for the same real estate than the average working class family, even if mom did work part time. There were other ramifications, and it certainly wasn’t the ONLY reason real estate prices soared. I didn’t make it up out of whole cloth.

I’m not promoting that a man who is only attracted to other men should marry a woman for the tax benefits. I’m simply pointing out that the law doesn’t discriminate against someone BECAUSE they are homosexual. If marriage is not for you, by all means don’t marry. But “equal protection of the laws” applies to the options available to an INDIVIDUAL person, not to whether a status provided for by law is equally ATTRACTIVE to two different demographic constituencies.

Loving v. Virginia was about a law which provided for marriage, a status joining a man to a woman, but also specifying that “white” men may only marry “white” women, and “black” men may only marry “black” women. Did you ever hear ACT-UP complaining about a law which said that homosexuals may only marry other homosexuals and may not marry heterosexuals? (Incidentally, we might have saved ourselves a lot of wasted ink if Potter Stewart’s concurrence had been the opinion of the court: he restricted himself to pithily observing that no law can stand constitutional scrutiny which makes an act a crime, or not, depending on the racial designation of the actor.)

It is at least hypothetically possible that “the community” has no particular interest, one way or the other, in whether gay men and lesbians have stable relationships or not. But one need not appeal to “rational basis” argument. There simply has been NO denial of equal protection of the laws to any individual. I am deprived of the tax deduction for dependent children, because I have none. I am not about to father a child just so I can get the tax credit — kids cost more than that. It only partially defrays the financial “burden.” Similarly, marriage laws do not provide a cornucopia of free goodies that are denied to gay couples.

Now if Alaska passed a law saying everyone gets a check from the state out of the oil royalty trust fund, EXCEPT gay men, Roman Catholics, Greeks, and red-heads, that would be another matter entirely. The institutional relationship is “getting a check from the state” and the “exceptions” would be arbitrary and capricious. Not so with marriage: the union of a man and a woman is the essence of the relationship.

You are right that none of us will live long enough to know whether the identity “gay” is a passing fad or a profound recognition of the nature of human beings. It may turn out to be a symptom of mercury poisoning. (Take that you Sodomistic Republicans attacking the latest EPA regulations — there have been studies showing that high mercury concentrations promotes homosexual behavior in some species of wading birds). The absence of a long historical precedent suggests caution is in order.

As of now, our laws, uniformly, throughout the nation, restrain the police powers of the state from intervening in the private choices of two consenting adults to live together as man and man, or woman and woman. For the rest, there is no uniform legal disposition. I have no objection to the New York legislature deciding to license same-sex couples as a marriage. If a majority of legislators can win re-election after voting for such a measure, obviously the community at large has decided to take official notice of this relationship. I do not feel my soul is thereby put at risk. The notion that gays are being “deprived” of “benefits” is an artificial concoction.
str says:

March 2, 2012 at 8:57 am

Siarlys,

I don’t know what Muslims you are talking about but thanks, I can without such insults.

Though I am not in the US, I’D like to point out that in the US, the Church has no such history. (The early history of Maryland might offer a lesson or two on this.) There is however a history of anti-Catholicism there and you are doing the talking points just fine.

As for other countries: not everthing on the Church’s record was good – but show me the organisation that has survived that long and has a better one. Its Protestant counterparts were not better and they had only 500 years. And the most problematic items were all done in defense of a position the Church did not put itself in. I don’t condone bad things but it was not the Church that created the foundations for such control. And “totalitarian” is anyway something completely different.

Indeed I cannot vouch for every Catholic in the US or anywhere but I don’t have to. The Catholic Church is neither a democracy nor a free-for-all.

What “certain notorious princes” are you talking about? As for Al Smith (http://www.americamagazine.org/content/article.cfm?article_id=3213) I can only agree with him. An enyclical is not unimportant but neither is it the be all, end all. Even in Smith’s days was the attack unfair, even more so under the current pope.

“But we do agree, don’t we, that even if a judge must marry every legally qualified couple who appear before them, a Roman Catholic priest may indeed refuse …”

Yes, we do. Both on a “law of nature” level as well as on a “positive law” level. Trouble occurs when positive law oversteps its boundaries. One can’t be sure what the current president will do next.
str says:

March 2, 2012 at 9:31 am

Sean,

“In this country, “married” is a legal status. You can be religiously “married” all you want (just like polygamists in far-flung corners of Utah), but until the state says you’re married, you’re just playing house.”

I don’t think so. In the U.S., the state gives licenses but does not only recognise marriages formed in front of state officials (quite contrary to some European countries).

And as for polygamist, the state does not consider them merely playing but sends them the police.

“This country guarantees equal treatment under the law. Marriage has legal benefits that are inaccessible to homosexuals.”

As I said before, these benefits are equally accessible to all. The benefits are linked to something else – marriage – and since homosexuals are not disqualified from marrying, they are not disqualified from these benefits. That they do not want to marry is their choice. Hence, there’s no inequality

Say that some benefits are linked to being in the army. You cannot cry inequality if you don’t get these benefits because you do not join the army or merely want to or have joined the firefighters. What SSM advocates demand is that firefighters should now be called army soldiers and have army benefits. (I know, the metaphor is not perfect: the army has a much higher treshold than marriage has. Either institution has a treshold directly stemming from how the institution is set up.)

Whether homosexual unions should have some, all, none of the benefits linked to marriage is a different matter. But to decide that, calling them “marriages” is not necessary.

“It matters little what marriage has been, what you think it is, or what any church thinks it is, as far as the law is concerned. What the law demands is justice. (Yes, I know: it could do a better job of that.) There’s nothing “just” about selectively enforcing who gets

“to be in the marriage club based on a criterion that has been rejected as a legitimate basis for discrimination.”

Rejected by whom? Criterion for what? It is not an arbitrary criterion when you look at what marriage has always been.

What do you think matters “as far as the law is concerned”? Only the law? If so, the law can say whatever it likes to say and neither side has any ground to stand on. That’s legal positivism.

If there is some other standard to which the law should be measured, then the question is what it is. I am merely insisting on what people from very many different cultures and times have ALWAYS – literally: ALWAYS – held marriage to be.

“If your church doesn’t like what’s become of the legal definition of marriage, maybe your church should consider changing the name for its own purposes”

It is most annoying if one side in a discussion (ironically often the innovating side) thinks it can dispense with arguing and making a case and supposes it has already won. “The legal definition” has not become anything you think it has – it remains what it is. Like it or not, your view is still very much a minority view, in the US and even more so globally. And why should an organisation way older than the state in question should change the name for an institution way older than either that organisation or the state. You want to have something new, why don’t you pick a new name for it?

Marriage is a secular institution (which doesn’t mean that it cannot have religious repercussions) but secular doesn’t mean non- or anti-religious.
str says:

March 2, 2012 at 9:43 am

Sean,

“Regardless, the notion that 2) only applies to heterosexuals is absurd; if the general community has an interest in promoting stable marriages, then it has an interest in promoting them for all its citizens, not just some of them. Keeping 3-5% of the population arbitrarily single doesn’t serve the end of “stability.””

It is not up to you to dictate to the general community what it should have an interest in. You should at least leave that to that community. Its interest is not arbitrary, since it is linked to the fact that men and women beget children und that a stable family with mother and father is the best environment for a child to grow up in. That’s the interest of the community, not whether a couple is such a wonderful couple or what they do in bed.

I already hear you saying: “But not all heterosexual couples have children” – no, they don’t. But they entered an institution that was formed partly for the sake of children and the institution needs to be there first in order for children to grow up in it. Marriage has benefits for that reason. That some capable of having children marry anyway is not a good reason for calling the unions of others that are not capable marriages, just to please the whim of a tiny, tiny minority (a minority even of homosexuals).
Franklin Evans says:

March 4, 2012 at 9:57 am

str: I don’t think so. In the U.S., the state gives licenses but does not only recognise marriages formed in front of state officials (quite contrary to some European countries).

In case you happen to return to this thread, you are in fact wrong about the legal dynamics of recognized marriages in the US. For purposes of its definition as a legal contract — with its ramifications for all laws, regulations and legal usages that carry the term “spouse” — no religious marriage carries said recognition without a government issued marriage license. Thus, unless that license is executed by the religious person presiding over the ceremony, neither person can legally claim the label “spouse” until such time as that license is duly applied for, acquired and executed.

Sorry for the pseudo-legalese. I am not a lawyer. I have, however, looked this up enough times to remember how such things are worded, besides having been on the regulation side of such things in a previous professional career. Proof of marriage is a government issued certificate, and nothing else.
Siarlys Jenkins says:

March 5, 2012 at 1:08 am

It is rare that Franklin and I agree on a point of law, although we agree on much else. He is correct that a marriage license from the state (usually a county or city clerk, authorized by state statute) is necessary for a legally recognized marriage. It has been common practice, at least back to circa 1800, that a minister of the Gospel (or a rabbi, and probably an appropriate Muslim cleric in similar capacity) may obtain and sign such a certificate, affirming that he married the couple.

In Puritan New England, marriage was a strictly civil matter, not celebrated in church. Sex outside of marriage was both a moral and criminal offense, but marriages were not performed in church. This may in part have been a way of distancing themselves from Catholic and Anglican practice — particularly the notion that marriage is itself a sacrament.

In Anglican-dominated colonies, the impoverished laboring majority generally did not have access to church marriages — it cost money, and the fees for a simple certificate from a justice of the peace were much less.

However, EVERY court that has ruled that “equal protection of the laws” requires marriage licenses for same-sex couples has ALSO explicitly stated that the courts have jurisdiction only over civil marriage, not over what any religious denomination may choose to solemnize. Unlike in England, I expect that there will be couples a minister will marry, and sign the civil certificate, and couples they will not, who will no doubt have someone else sign the certificate, a different minister, or a county official.