My Thoughts on the US Supreme Court Marriage Cases

After listening to recordings of the oral arguments of the two gay marriage cases, I had some of my own arguments of my own that I wanted to process by writing down:

The court was looking for a rational basis for defining marriage to be one man and one woman instead of as any two people regardless of gender.  The argument was put forward that the rational basis and government interest in the former is that marriage between a man and woman in general has procreative potential whereas gay marriage categorically doesn't.  I agree with that argument.  One question posed was, well what about couples where both spouses are over 55 and thus unable to procreate?  My answer is not only is there a government interest in limiting the procreative potential of the husband at that point, but also that in general people 55 and older are entering years of grandparenting, which the government in a variety of contexts recognizes as a valuable relationship.  So even for older couples the government has the rational interest in defining marriage as a man and a woman for the sake of their grandchildren. 

But I would turn the question around at marriage foes and ask what rational basis and valid government interest exists for defining a homosexual couple as a married couple thus giving them the same benefits it extends to heterosexual marriage?  I would argue that although there are legitimate state interests other than potential procreation, NONE of the other legitimate state interests are unrelated to the procreative potential of the couple.  So, for instance, if other government interests in marriage include the emotional and spiritual well-being of the spouses, even those interests are not disconnected from the controlling government interest in the well-being of children.  For, from the point of view of government interests, the emotional and spiritual well-being of the married couple is relevant primarily because those things help to foster a positive environment for childrearing.  So even if gay marriage would improve the emotional or spiritual well-being of gay couples, those aren't valid government interests in a free society where individuals have the authority to pursue happiness, in the words of the Declaration of Independence.  The government, for instance, doesn't define or give benefits on the basis of promoting emotional or spiritual well-being when it comes to friendship or mutual involvement in any particular social institution other than marriage.  But surely the government likes friendship and could conceive of policies to promote it.  But it doesn't have the same sort of compelling interest in the emotional and spiritual benefits of friendship that it has in marriage essentially because of the procreative potential that traditional marriage entails.  So although there is rational basis and compelling government interest in traditional marriage, it lacks the same rational basis and compelling interest in gay marriage.

Furthermore, in light of our nation's and the world's long history of recognizing and celebrating traditional marriages, the burden of proof (or a higher level of scrutiny) surely falls on those who advocate a new form of marriage to demonstrate its societal benefits relative to traditional marriage.  If they assert that gay marriage is a right, then why was that right hidden from American society and virtually every human society in recorded history?  They assert that a new understanding of the equal protection clause requires that the government recognize this right.  But they assume rather than demonstrate that there is in fact an unequal treatment.  For under traditional marriage laws, any man whether gay or straight has the right to marry any woman whether gay or straight.  There is manifestly equal treatment of all people under traditional marriage laws.  The claim to unequal treatment only arises insofar as certain people don't want to marry opposite-gendered spouses.  But a desire for a different arrangement hardly qualifies as unequal treatment.  Just because some people disagree with a law doesn't mean it is unequal.  For instance some people may not like paying their taxes, but their desire not to pay doesn't mean that they are being treated unfairly compared to someone who gladly pays the exact same taxes.  Opponents of traditional marriage also assume without proof that sexual orientation is an immutable personal characteristic much like skin color or hair color.  But at best the evidence is ambiguous and frankly the existence of even a small number of former homosexuals belies this claim.  Thus, homosexuals are not a class in the same way that racial groups or gender groups are.  And without class status, homosexuals as a group are merely a group united by mutual beliefs and interests like so many other groups in American life.  Without reasonable government interest in gay marriage, it could well be unconstitutional at least for the federal government to in any way advance that particular institution. 

The question of whether one state's implementation of gay marriage requires that the federal government and thus all of the other states by default to also recognize gay marriage because of the equal protection clause was also discussed.  Such an argument unconstitutionally elevates one state's law to the law of the land, when clearly it is the constitution and constitutionally-consistent federal laws that are the law of the land.  Furthermore, such an argument has no rational basis for limitation.  If one state allows polygamy or marriage between minors or close relatives, would not the equal protection argument require that the federal government and all states then recognize such marriages as legal?  Where does this sort of argument end?  (I believe one of the justices also followed this line of reasoning.)

Thus, the Defense of Marriage Act could well be the most constitutionally consistent legal position that the federal government could take.  It respects the 10th amendment, has a rational basis, and advances a compelling federal government interest.  Furthermore, it also respects the 1st amendment protection of the free exercise of religion.  This is an issue that has been largely ignored in the briefings and arguments before the Supreme Court, but has significant constitutional implications.  Many of the professionals working in various facets of the wedding industry personally oppose gay marriage for religious or other reasons.  While traditional marriage was the only governmentally-recognized marriage, the people working to support weddings who had these convictions could do their work in a way consistent with the exercise of their religion.  However, to the extent that the government redefines marriage to include gay marriage, those workers who have strong objections to gay marriage will be put in an impossible dilemma of either working in support of the gay couple's wedding or being forced out of business in the face of the very real threat of antidiscrimination lawsuits.  That hardly allows these workers the free exercise of their religion to say nothing of their freedom of speech or freedom of assembly (whether in business or private affairs).  Thus, a federal law or judicial ruling redefining marriage to include gay marriage would trample the first amendment rights of a significant subset of American society. 

One objection that opponents of traditional marriage raised is that a significant reason behind the enactment of the Defense of Marriage Act has to do with moral reasons - moral objections to gay marriage.  Even if that's the case, that is not a reason invalidate the law.  Surely many opponents of traditional marriage also have moral reasons for opposing it - they believe that it is morally right to allow gay couples to be legally married.  If moral reasons invalidate positions, then this a reason for opposing gay marriage just as much for opposing traditional marriage!  Moral reasons, even when based in religious beliefs, are rational reasons for both citizens and legislators to make law.  In fact, it is hard to see how any laws are passed apart from moral considerations.  Don't all citizens and legislators act the way they do at least in part because they think it's the right thing to do?

When the representative for the executive branch, an amicus curiae I believe, was arguing, he said at one point that the US government had changed its position on the Defense of Marriage Act.  But for a representative of the executive branch to say such a thing is a vast overreaching of its authority.  The position of the US government has not changed, because the position of the US government is determined by the laws that have been actually and legally enacted.  Thus, at least until a different law is made or a contrary ruling comes from the Supreme Court, the official position of the US government (per the Constitution) is still that the Defense of Marriage Act is constitutional and that it is a law that must be enforced, despite protests from the current administration to the contrary.  So for the executive to believe that its views are the views of the US government is both arrogant and raises alarms of potential tyranny.

Regarding the question of whether or not the House of Representatives has standing to argue the case before the courts as a party, it seems clear to me that if their standing is denied, then in essence the executive branch has gained an unconstitutional veto power over the legislative branch, because any time it decides not to enforce a law for whatever reason, the legislative branch would have no recourse to compel the executive to do its constitutionally-mandated job, short of impeachment and removal of the president.  It seems clear that the House has compelling interest to see that its laws are indeed enforced.  Even if the objection from the executive branch is that a law is unconstitutional, does that give it the right to unconstitutionally not use care in enforcing a law passed by Congress and either signed by a president or, if vetoed, implemented as law by a Congressional override?  Do two wrongs make a right?

In the case regarding California's Proposition 8 the question was asked if the government could have a legitimate reason in any context other than marriage for treating gay people differently than straight people.  Although the lawyer could not think of any situation, it seems clear that many Americans believe that the military is one place where the government has a legitimate interest in treating gay people differently.  Or consider TSA pat-downs which are sometimes required for air travel - in general travelers have the right to expect TSA personnel of their same gender to perform this type of search, but in the case of homosexual TSA personnel the government has an interest in barring them from performing pat-downs on travelers of either gender due to the uncomfortable situations which might otherwise arise.  Furthermore, the government recognizes the right of other institutions to discriminate on the basis of sexual orientation, such as blood banks which refuse potential donors who are gay, overnight camps which reject gay counselors, and churches and religious charities which refuse potential gay pastors and employees.  So it seem that the institution of marriage is not the only legitimate place where the government can and does acknowledge that differential treatment based on sexual orientation is valid.  But again this whole argument assumes that there really is unequal treatment regarding marriage when it as already been shown that this is not the case.

The Story of Our House

I want to tell the story of our house.  It’s a story of God’s faithfulness.  It’s a story of many answers to prayer.  It’s a story of us learning to praise God during good times and hard ones.

I suppose the story begins in 2007 when we were renting an apartment in Cotati, CA, and we wanted to move.  Rent was expensive, and we wanted to lower our living expenses by buying a house.  We had no yard and we wanted a place where our kids had a lot of room to run.  We wanted a place where we could garden and maybe even have a few animals.  So when we found this place and realized that we could buy it without going into debt, we were pretty interested.  Sure the house was small and in desperate need of cosmetic improvement, but we could make it work.

We tried to be as prudent as we knew how.  We repeatedly asked the owner if everything was built with a permit – he said it was all built with a permit before he bought it 20 years ago.  Our real estate agent said so, too.  Well, except for the roof of the main house, which he said was installed without a permit.  So we refused to buy until that was permitted.  It was.  Then we were told everything else was fine.  We even asked the city if there were any other problems, and we were told that no there weren’t.  So, using all our savings, we bought it in January of 2008. 

So with a lot of help we got started fixing up the house to make it livable.  While living in a borrowed RV, we pulled out the old carpets full of cat pee.  We took out the popcorn ceiling filled with cigarette smoke.  We washed and painted the walls.  We painted the floor.  Then it was time to remodel the mold-infested bathroom.  So I went to get a plumbing permit.  The city said that they had begun the process of forcing the previous owners to legalize the granny unit just months before we bought.  We’d probably have to tear it down.

But we thought, surely we won’t have to tear it down.  Surely the government isn’t that heartless and unjust.  Surely there’s a way to legalize it.  So after we researched it extensively, it was apparent that there were three steps to go through to legalize the granny unit.  Step one – get a use permit to “build” a granny.  Step two – build a new septic system.  Step three – get a building permit and bring it up to current codes.  It was unlikely that we could get past steps one and three.  It was literally impossible for us to get past step two.  So we went back to the city and asked for mercy.  Instead, the person speaking to us literally screamed in our faces, “Tear it down!!”

It was during this time that we were leading worship at Petaluma Community Church.  It was during this time that the worship song “Blessed be Your Name” was especially dear to us.  It’s a song about praising God no matter the circumstances; in good times, praise the Lord.  In hard times, praise the Lord.  It even includes a line taken from Job 1:21.  The Lord gives and the Lord takes away.  Blessed by the name of the Lord.  By God’s grace, we were able to praise Him for His goodness in Christ, even while our house was being taken from us through no fault of our own.

So in Christ we found the strength to go on.  We appealed the ruling, and so the city couldn’t take action against us until they heard our appeal in several months.  However, amazingly that appeal board couldn’t meet for nearly a year and a half later!  That was God’s mercy, and without that delay, we would have had to tear it down.

We tried to hire several different people whose job it is to work with the city to fix problems like the one we were in.  But no one would help us.  They concluded that it was indeed impossible to fix this mess.  But amazingly, we were able to get a use permit to build a granny unit in our zoning.  One of our neighbors even came to that hearing to support us!

But this next step of building a new septic system was literally impossible.  You see, we found out that this area is what’s called a “waiver prohibition area” where the county, who oversees all septic systems even in city limits, isn’t allowed to grant waivers to build septic systems in less than ideal conditions.  However, we couldn’t meet those conditions for depth to groundwater in the winter.  But amazingly we were able to talk to one of Ephran Carillo’s assistants and she somehow was able to talk to the PRMD and get a waiver!  I actually had a non-Christian septic system designer say to me “this is a miracle.”  Even he used the word “miracle.”  It was obvious that God answered our prayers!

The third and final step was also hard – getting a building permit.  We weren’t sure we could even bring our house up to code.  Yet I drew up some plans on graph paper and submitted them, like the city asked me to.  But my first set of plans came back with hundreds of plan check comments.  After spending hours studying the building code, I drew up another set of plans, and this time a friend of a friend helped put them into CAD drawings for me.  This time the city approved them!  Now all we had to do was the actual construction – lots of construction!  So right at the end of 2010 we moved out of the granny unit that had been our home for 3 years into Jim and Kathi’s house so that we could FINALLY do the remodel work we had been wanting to do 3 years ago! 

So the good news was that since I am in seminary, I have summers off and a month of in December.  The bad news is that since I’m in seminary, I had absolutely no time to work on the house during the school year.  So I hired out the hardest stuff for me; the plumbing, electrical, and HVAC installation.  The rest I figured we could do.  Last summer we had a lot of help from our church friends – with things like painting, digging, drywalling, nailing, and more.  Also, I want to mention my brother in Christ, Steve Fink.  He worked with me just about every day for a month over the summer.  And he knows a lot about construction.  Together we were able to replace all the windows and the door, replace some of the exterior siding, and hang all the drywall that needed to be hung.  He also got me started on drywall finishing.  It was a joy to work with him.

Last Christmas break, we made some more progress, and my father-in-law Jim was been a big help with some of the finishes like the cabinets and flooring.  But we didn’t quite finish.  Then over spring break we inched even closer to the goal, but still hadn’t installed the countertops or backsplash.  Finally just a few weeks ago it was completed.  And a couple of inspections later, and we were legal!

Through it all God has been faithful and He has answered our many prayers.  I’m not saying that God always gives you what you want or keeps you from experiencing hardship.  But I am saying that He is faithful to walk with you through it, to sustain you, to teach you, and to love you.  So I want to encourage any of you who might be going through hard things; God will sustain you and He has a plan for it.

"The Lord gives and the Lord takes away - Blessed be the name of the Lord!" Job 1:21

Atomic Structure?

I recently gave a presentation on some of my atomic musings to some high school students. I'm trying to discover the structure of the nucleus, if there is such a thing. View my powerpoint HERE. It will probably work best if you download the file and run through the powerpoint on your computer.

A Psalm about Creation, the Flood, and Redemption

I'm working on writing a technical paper about my theory of what triggered the Flood and what happened during and as a result of the Flood. Here is a very brief summary of that paper as a psalm:

To God the Creator, Judge, and Redeemer. A Hymn. Of Don.

Lord God, you are powerful
Your glory shines forth from the heavens
You made the earth perfect
With no death or disease or hardship
Adam and Eve were happy and warm
Walking with you in the garden
You protected them from harm
You made a shield from the sun’s damage
But after they sinned, you turned away
You cut them off before their thousandth year
When their wicked descendants multiplied
You were sorry that you made them
So you sent forth your servants
Neutrinos from a nearby star
They dissolved the elements
And the heat melted the earth
The ocean basins rose up
And the waters poured over the land
All life with breath was destroyed
Only your eight faithful servants remained
You preserved them on the ark you designed
While the earth turned as with fire deep below
Then you sent the oceans back to their place
The mountains arose and the valleys sank down
The core of the earth began melting
And your shield of protection decayed
The sun’s damage increased over time
While you sent forth your icy storms
And covered the land with mighty glaciers
But then the oceans cooled off
And your mighty volcanoes subsided
And the earth’ surface warmed up once again
But now man’s days are short
Seventy years, or eighty if they are strong
Oh Lord, you are perfect in all your works
Your ways are beyond searching out
Your thoughts are much higher than ours,
Than men’s thoughts whom you made out of dust.
Oh Lord, you are worthy of our praise
And one day every knee will bow to you
Come quickly, Lord Jesus, and restore the earth
Give us new bodies, and dry all our tears.
For you are our hope, we wait for your salvation.
Forgive our sins, that we might stand before you forever.

To the choirmaster.

A Psalm for America

For this psalm, I guess my interests of the Bible and public policy both came through. It's fairly appropriate for the 4th of July, I suppose:

A prayer to God for America. Of Don.

Oh LORD, you rule over the rulers of the Earth
You establish nations and tear them down
Nothing escapes your sight
Long ago you brought our fathers
On wooden ships, to a land of hope
They came to worship you in peace
They worshipped you, and you blessed them
You multiplied them and they prospered
Then they were oppressed and mistreated
A king far away imposed tyrannous laws
Although our army was weak,
You gave them strength
You preserved them in many battles
But now, oh Lord, have you abandoned our nation?
The people no longer worship you
We no longer esteem your Word
So we follow our own ways
In pride we rejoice in our sin
How long, Lord, until you send loving discipline?
When you rebuke us, soften our hearts
That our nation may bow to you
Remove our hearts of stone
Give us hearts of flesh and Your Spirit
That we may heed your voice
And listen to your Word.
Then may you bless us again.
Then may you grant us godly leadership,
Rulers who fear you and obey your ways.
Remove the disgrace of our endless adulteries
Cause us to repent of the murder of the unborn
Uphold marriage in our midst as one man with one woman
Eliminate divorce by teaching us your steadfast love
Lower our taxes to your limit of ten percent
Give us a sound currency, not forever inflated
Remove thieving bankers from the land
Cause us to build new wonders and products
Give us jobs for all the workers in our land
With a wage they can live on
Make a place in the hearts of children
To provide for and care for their own parents
Lower our healthcare costs, and provide abundant energy
Let our soldiers come home, and give us peace
May we teach our children your ways.
May our grandchildren know you and your Word.
Oh Lord, heal our land.

For the choir director.

A "Psalm" I wrote

So I took a class on the Psalms, and I thought I would test my understanding of the form by composing a few Psalms of my own. This first one is a lament:

When Don was overwhelmed by the burdens of life. A Song. Of Don.

Oh, Lord, you are my resting place
Where else can I turn for help?
I am overwhelmed by problems
Troubles that come from your hand
Rulers try to tear down my house
I cannot live in my home
They threaten me and make demands on me
“Build this and that and you may return,
Pay us much gold and we will go away”
Wild animals devour my flocks
My bees die of mysterious diseases
My cows neither give birth nor provide milk
The seeds of my garden do not germinate
The works of my hands break apart
My belongings are in storage;
They cannot be found when I need them
My blessings became burdens,
I am weighed down with cares.
Lord, when will you deliver me?
My God, how long until you rescue me?
I am paralyzed by the tasks you assigned me
Yet I will still trust in the Lord.
He has guided my steps and provided abundantly.
Oh Lord, solve all my problems
Remove all my difficulties
Give me work to do for you kingdom
And success in the labors you assign.
Then I will praise you, God
I will declare your deliverance to my neighbors
I will praise you on Facebook, that many might know
How marvelous you are; how you love me.
Although you teach and discipline me with cares
Your steadfast love never fails.
So I will hope in you, and trust your power
For you are from eternity to eternity
Nothing is too hard for you,
My Savior, my Friend, and my God.

To the choirmaster.

My Blog

So I probably won't be updating this very often, but like everyone else who has a blog, I want to share some of my thoughts with whatever small sliver of the world stumbles across them. In general, I hope to post a wide variety of my outside the box thoughts about science, the Bible, and public policy, and whatever other ideas I'm interested in that seem to have even a modicum of value to others. So, if you're reading this blog, I hope your thinking will be stretched.