New BYU President on Gay Marriage: You Will Be Surprised

The following is LONG, but it is one of the best commentaries on gay marriage as a legal issue I have read. It is brilliant. It is from Kevin Worthen, announced as the next President of Brigham Young University. Don’t let the job title fool you. This is a brilliant legal commentary, and I think you will be surprised. It’s a little hard to read, since it’s a legal statement, but it’s worth reading. The last paragraph, especially, is spot-on. (I have bolded a few things I want to emphasize.)

“While these views of marriage are not necessarily mutually exclusive, one’s views on the proper definition depends, to a considerable extent, on one’s view as to which of these functions should be the primary function of marriage. Thus, opponents of same-sex marriage tend to emphasize the societal perpetuation function of marriage – with its focus on responsible procreation – and on the sexual norm reinforcement function of marriage – with its focus on the proper form of sexual relations. Proponents of same-sex marriage tend to emphasize the individual fulfillment function of marriage – with its focus on individual benefits from long-term intimate relationships. Proponents of domestic partnership laws tend to emphasize the distributional function of marriage – with its focus on benefits.

The important point is that one cannot resolve the issue of which of these functions to prefer, how much weight to give them, or even how essential marriage is to the realization of the goal underlying the interest on value-neutral grounds. For example, one cannot decide how essential marriage is to responsible child rearing unless one first determines what values “children need.” This in turn requires some consideration of what values society favors. Similarly, one cannot decide how well marriage reinforces proper sexual norms unless one first determines what sexual norms are proper, an extremely value-contingent decision. Nor can one decide how essential marriage is to individual well-being unless one first determines what constitutes individual well-being and fulfillment, a determination which requires a prior decision as to what values society favors. Finally, and most importantly, one cannot begin to balance the various factors without further making the value choice as to which of the competing values (to the extent they conflict) should be preferred.

In short, when government defines marriage it necessarily determines, or reflects, to a considerable extent, its moral vision.

…

In a general sense, the classic liberal view – under which government’s role was not to determine what was good for individuals or society, but rather to facilitate the process by which private individuals and private groups determine those issues for themselves – prevailed in the federal constitution. The focus of that document is on process, specifically on the structures and processes through which governmental decisions are made at a national level. Thus, the federal constitution is, by and large, devoid of any express value or moral judgments. Instead, it reflects the view expressed in a central provision of the Declaration of Independence that “governments are instituted among men,” not to determine for its citizens what constitutes happiness, but to “secure” their right to pursue that goal according to their own vision of it.“