Fairness, Accuracy and Honesty in Discussing Homosexuality and Marriage

If a lie is repeated often enough, those who hear it will begin to believe that lie is the truth. Such has become the fate of fair and balanced legal academics. Some have heard for so long that homosexuality and marriage ought to be united, that many refuse to believe anything else, even when biology refutes it, the law negates it, and that statement is exposed as a lie. Many academics and other communicators have indeed closed their minds to both sides of this debate, determining there is no debate. That debate, however, is alive and well in the minds of open-minded legal academics. Although Stanford’s Law and Policy Review solicited the other articles contained in this journal issue, its refusal to publish them has allowed Regent to inherit a fabulous law review edition.

This article will introduce these well-written pieces. They are not legal research articles, but their publication is equally important. If Stanford will not publish them, Regent will gladly do so. Due to the nature of these articles, it is quite possible that the readership of this issue will be much wider than legal academia. With that readership in mind, this article, in order to more adequately introduce these pieces, will first discuss some of the fundamental concerns in discussions about homosexuality, such as what sexual orientation actually is and what it means to integrate one’s experiences of same-sex attraction into a "gay" identity in contemporary culture, as well as what it means to dis-identify with experiences of same-sex attraction. We then turn to the two most significant legal issues surrounding the debate on what it means for two persons who have integrated their experiences of same-sex attraction into a gay identity to pursue same-sex "marriage."

The purposes of this article are to understand the context of the arguments about homosexuality with respect to what it means to have integrated experiences of same-sex attraction into a gay, lesbian, or bisexual identity, set out the two main arguments pertaining to same-sex marriage, and to follow that discussion with an introduction of each of the other articles appearing in this journal issue.

Section I will introduce the reader to a debate about what sexual orientation actually is as well as a model of sexual identity development that takes seriously one’s personal creed or valuative framework and how that may impact subsequent identity synthesis. This will serve as a foundation for a proper understanding of what it means to then consider marriage between two persons who have integrated their experiences of same-sex attraction into a gay, lesbian, or bisexual identity. Section II will discuss the arguments surrounding the contention that marriage is a fundamental right and ought to be available to all citizens. Reviewing and clarifying the constitutional arguments and politically charged rhetoric is the goal of this section. Section III will discuss the sanctity of marriage argument. Postmodern legal academics purport to dismiss this argument as based purely on tradition. This section, however, will demonstrate the reasoning behind this argument, to help the general reader determine the place of the sanctity of marriage in our law today. Finally, Section IV will introduce each of the other articles contained in this issue, and state the relevance of each in this vital debate.

The objective is to clarify misconceptions and stimulate proper thinking on this crucial matter, and simply to be fair. As you read, may you approach these pieces with an open mind, and be educated in the contours of this debate as you strive for the truth.

We begin with a brief introduction to a debate this is occurring within the gay community itself. This is a debate about what sexual orientation actually is. You might think that such a fundamental issue would be settled given the number of court cases and legal challenges that surround the topic of homosexuality; however, at a most basic level, a debate continues as to whether sexual orientation is something universal and stable across time and place, or whether it is a social construct. This is not a debate between sexual progressives and social conservatives; rather, this is a debate you would hear about within the gay community itself. Good scholars within the gay community disagree about metaphysical questions pertaining to the nature of sexual orientation.

On the one side of the debate are those who are referred to as essentialists. Generally speaking, essentialists view sexual orientation as a real thing, an essence that is universal in that we can see it throughout history and across cultures. Strong forms of essentialism also claim that this universal reality is at the core of who a person is and that it ought to find expression through same-sex behavior for that person to be personally fulfilled. There is then a kind of sexual self-actualization that characterizes strong forms of essentialism. Variations on this view are probably held implicitly by many people in our culture. Part of what has made this view appear compelling is the forceful advancement during the 1990s of the biological hypothesis for the etiology of homosexual orientation. Despite the fact that the research produced during that decade has yet to be replicated by independent research teams (or in some cases has failed replication), the media coverage during the 1990s suggested at a popular level that if biology "causes" homosexuality than only prejudice and bias can possibly fuel existing laws limiting homosexuals from rights given to heterosexuals.

On the other side of the debate are social constructionists. They hold that sexual orientation is not a real thing at all but rather a linguistic construct that is fashioned by society to capture differences we know to be sexual preferences. To understand this perspective on sexual orientation, consider the analogy of your membership in a political party. To say that you are a democrat or a republican only means something to people in our culture at this time in our society’s history. The linguistic construct simply captures something about your voting preferences, your views on social issues, and so on. It is not a real thing. So too with sexual orientation.

The vast majority of both essentialists and social constructionists tend to be supportive of gay causes, but the differences between the two are often overlooked as social matters are discussed and legal precedent is challenged in our society’s courts.

Related to metaphysical questions about sexual orientation are discussions as to how people who experience same-sex attraction come to identify as gay, lesbian, or bisexual. For over thirty years gay researchers and theorists have been trying to conceptualize how a person who experiences same-sex attraction comes to integrate their experiences into a gay, lesbian, or bisexual identity. It is widely recognized that ours is the only era and culture where people make the self-defining attribution, "I am gay." This consensus is held by gay theorists and conservatives alike. And so there has been great interest in understanding how it is that people come to identify as gay. In fact, there are numerous theoretical models, some of which address general gay identity development, while others focus in on the experiences of gay males, lesbians, bisexuals, ethnic minorities who experience same-sex attraction, and so on. What these models hold in common is a commitment to treating sexual identity synthesis and "coming out" as synonymous. In other words the only healthy, normative outcome for a person who experiences same-sex attraction is for that person to "come out" and identify as gay, lesbian, or bisexual. There is no model among those produced by gay theorists that takes into consideration the experiences of those who dis-identify with their experiences of same-sex attraction and pursue an alternative identity synthesis.

A recently proposed model of same-sex identity development takes seriously the personal creed, valuative framework, and attributions of those who experience same-sex attraction. It is proposed that people go through five stages: 1) identity confusion or crisis, 2) identity attribution, 3) identity foreclosure versus expansion, 4) identity reappraisal, and 5) identity synthesis. Although many of the stages are comparable to what is found in other models, this model notes that there is a point at which persons who experience same-sex attraction make attributions about what their attraction mean to them, and that then they go through a time where they either foreclose on alternatives or expand their alternatives to same-sex attraction insofar as it defines them as a person. Some people go on to integrate their experiences of same-sex attraction into a gay, lesbian, or bisexual identity, and they take on a self-defining attribution with respect to their proclivities, i.e., they say of themselves, "I am gay." Others dis-identify with their experiences of same-sex attraction. For a host of reasons they do not attribute their experiences of same-sex attraction as at the core of who they are as a person. They do not deny that they have these attractions, and many will try a course of therapy or involve themselves in a ministry group to decrease the intensity, frequency, or duration of these attractions, but they do not integrate the attractions into a gay identity or foreclose on alternatives.

This model actually reframes the debate about whether people can change their sexual orientation. Rather than ask whether a person can change his or her sexual orientation, this model asks about a person’s sexual identity development and their current experiences with their identity vis a vis sexual identity synthesis. The issue of change, then, might best be understood as a question of life trajectory, of pursuing one or the other sexual identity synthesis. Either people integrate their experiences of same-sex attraction into a gay, lesbian, or bisexual identity, or they dis-identify with their experiences of same-sex attraction and pursue an alternative sexual identity synthesis.

This is the kind of thinking that is often out of the public’s awareness. This is the kind of theorizing that may make sense to people upon reflection, but which is often overlooked because of assumptions about what the gay community is like as voiced by a small but vocal group from within that community.

We turn now to two of the key arguments in the debate about whether two people who integrate their experiences of same-sex attraction into a gay, lesbian, or bisexual identity have the right to have their relationship recognized by society as a marriage. Political manipulation and the lack of fairness have resulted in these arguments not being reasonably and practically understood by the general public. For this reason, they are the two most significant arguments that need clarification for the benefit of the general public. These two arguments are 1) the fundamental rights argument, and 2) the sanctity of marriage argument. The proponents of homosexual unions make the first argument, and the proponents of traditional marriage make the second. Each argument has merit and ought to be validly considered by the general public.

Proponents of same sex unions contend that same sex couples are discriminated against in that they are prohibited from enjoying the fundamental right to marry. Marriage has always been a fundamental constitutional right, stemming from pre-Bill of Rights values upon which our nation is based. Indeed, every American citizen does have the fundamental right to marry. However, many fundamental rights contain minimum requirements.

For example, to vote one must be of the requisite age and also an American citizen. To enjoy the fundamental right to bear arms contained in the Bill of Rights, one is required to be an American citizen. In like fashion, the minimum requirements to marry include: the parties being of minimum age, one at a time, unrelated by blood or marriage, and of different sexes. American law has always contained these minimum requirements for the enjoyment of the fundamental right to marry. No court, legislature, or legal body can ever stop anyone from marrying, so long as they qualify for that right. For this reason, the argument that homosexuals are denied the fundamental right to marry is a fatally flawed argument from the outset. The most famous case that clarifies this argument is Loving v. Virginia. When a white man and a black woman were prohibited from marrying, the Supreme Court of the United States ruled that it is illegal for any state to prohibit such a union. Each party to the marriage met all the minimum requirements for entry into marriage. Race, an immutable quality invoking the highest judicial scrutiny, is not among those requirements, and to prohibit such a marriage was illegal. When homosexual union proponents use this case, it evokes great sympathy for their argument in spite of the flawed analogy of race and homosexuality. Such an argument for homosexuals, however, is fatally flawed when examined in light of the minimum requirements for entry into marriage. This fact, coupled with the constitutional standing of homosexuality, invalidates the argument.

This argument was proffered in a recent high profile Hawaii case. The issue presented there was whether there is a fundamental right to marry a person of the same sex. "The Due Process Clause guarantees more than fair process . . . . The clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." To constitute a fundamental constitutional right, two elements must be met: first, the right must be deeply rooted in our nation’s history and tradition; second, that right must be clearly articulated in this nation’s legal history. If these requirements are met, that asserted fundamental right is then afforded the highest judicial protection.

The Hawaiian plaintiffs claimed a fundamental right to same-sex marriage, asking the court to recognize a new fundamental right. However, that claimed right is not deeply rooted in this nation’s legal history and tradition, and no new description of a fundamental right was articulated. Thus, the court held that the right to same-sex marriage does not exist.

Therefore, the argument that homosexuals are denied the fundamental right to marry is resolved with a due process analysis that is considered in conjunction with the requirements for entry into marriage. Homosexuals are not denied the fundamental right to marry. Anyone can enjoy that right as long as he or she meets the minimum requirements for entry into marriage. Just as two ten-year-olds cannot marry one another, and two related people cannot marry one another, and two people who are already married cannot marry one another, nor can two people of the same sex marry one another. These individuals simply do not meet the minimum requirements for entry into marriage. Likewise, due process considerations reveal that no liberty interest is abridged in that denial. Thus, these arguments made by proponents of same-sex unions fail.

Proponents of heterosexual marriage argue that marriage is a sacred institution, and will be irreparably harmed by altering its essential nature. Others dismiss this argument as discriminatory. However, a clear explanation of this area of law invalidates such discrimination charges while exposing the general lack of understanding such objections are based upon.

This is most easily explained with a discussion of the essence of marriage. Certainly, marriage is "one of the most basic institutions of family law." David Hume called marriage "an engagement entered into by mutual consent, and has for its end the propagation of the species." Yet family law is the regulation of that institution; it does not define the institution. The essence of something is that part of the substance that is indispensable. When a marriage is made, or when the marriage ceremony occurs, a new relationship is created – legally, morally, socially, and economically. And the essence of marriage is the act of sex between a man and a woman.

The distinction between the sex acts that occur between a man and a woman contrasted to that of sex between two men or between two women shows this essence vividly. A marital act, or the act of marriage, is sexual intercourse that consummates and actualizes marriage by uniting the spouses in a reproductive-type act, thus making them, in no merely figurative sense, two-in-one-flesh. The marital act is intrinsically good, has uniting capacities, and is indeed the essence of marriage. There are clear distinctions between this act, which is intrinsically good, and sodomitical acts. "[S]odomitical acts . . . lack this unitive capacity, and thus cannot actualize marriage. Such acts are, therefore, nonmarital even when performed by persons who are married to each other. It is precisely in this sense that sodomy is intrinsically nonmarital." The essence of something is that substance without which it cannot be itself. For marriage, that substance is the act of sex between a man and a woman in a sexually unitive capacity.

"It is important to see that, though all marital acts are reproductive in type, not all reproductive-type acts are marital." Two members of the same sex are simply incapable of entering into a marital act, making homosexual marriage anathema due to the essential nature of marriage itself. The essence of marriage requires a man and woman in the marital act.

As discussed earlier, couples are "not denied a marriage license because of their sex; rather, they [are] denied a marriage license because of the nature of marriage itself." G. Stanley Buchanan offers an insightful defense of restricting marriage to a man and a woman based on "the standard of moral excellence in the core areas of sexual conduct and childrearing." It is the model for intimate conduct.

In a recent case, the Vermont Supreme Court appeared to recognize the special distinction of the act of marriage. "The court could allow the legislature to cite symbolic reasons for restricting formal marriage to traditional couples." Chief Justice Jeffrey L. Amestoy indicated that even though a court may act in a certain way, reality and truth may limit opinion. Alluding to the phenomenon in Alaska and Hawaii, Amestoy understands the limits of the court’s ruling in the scheme of all truth and reality. "Just as Dred Scott was nullified by the Civil War, the same-sex marriage cases were overturned by popular will. These cases show that ‘judicial authority is not ultimate authority.’"

It is also helpful to review some basic philosophical principles for a clear understanding of the sanctity of marriage. Aristotle’s argument from design provides the contemplation of an original design for a natural, physical, or social model that was a part of civilization before the existence of any formal government. This is often referred to as the Ontological Argument from design. "The term ‘ontology’ derives from the Greek words that mean ‘the study of being’ or ‘the study of that which is.’ Ontology investigates the structure of reality as a whole." The ontological argument reasons that there is a basic original design for everything. "The ontological argument employs a formalistic method of proof that proceeds by the tautological analysis of the meaning of the concept of God." The derivative teleological argument, "the postulation that what appears to be order in nature is evidence of a divine intelligence," "was replaced in the eighteenth century by the design argument."

The argument from design reasons that our discovery of "what appears to be a perfect symmetry and harmony in the parts points to a design or a plan." Application of these principles to marriage and the family offers strong support for the sanctity of marriage and the design of marriage between one man and one woman raising children within a family unit, as nearly all of human history has known it. Only in recent human history has cultural change questioned this design. The family has survived every previous form of cultural change, and because it is authentic by design, it is likely that marriage and the family will survive any current cultural pressure for obsolescence, as well as any future pressure.

Ontology and design theory understand change, particularly that all things are in a process of change.

Marriage, by virtue of its origin and designed nature, is of original, unique, and authentic design. This is the heart of the sanctity of marriage.

This thinking was not buried with time, but was carried into canonical laws and rules for marriage throughout church history. These laws were eventually ordained and regulated by Western Christendom. Marriage has been historically treated by the Church as "a natural association a contractual unit [prescribing] for couples a lifelong relation of love, service, and devotion . . . to each other and proscribed unwarranted breach or relaxation of their connubial and parental duties." Marriage, as "[t]he temporal union of body, soul, and mind within the marital estate, symbolized the eternal union between Christ and His Church, and brought sanctifying grace to the couple, the church, and the community." Theology is not out of place in a discussion of the sanctity of marriage. On the contrary, it is a useful guide due to its centuries of experience, and the original design of marriage is seen through both theology and the law.

A plethora of individuals today still choose the sanctity and option of marriage, even when our culture accepts many types of people groupings and living arrangements. "Notwithstanding these developments, a majority of Americans still marry in the traditional way and continue to regard marriage as the most important relationship in their lives." One of the most important factors for the staying power of marriage, particularly as the basis of the family, is the protection of children. The key to reconciling design and culture is the sanctity of marriage.

Understanding these facts demonstrates why the sanctity of marriage is more than merely tradition, a bygone historical relic. Evidence shows that children do better in a two-parent family, especially when the parents are married to each other. The family based on the sanctity of marriage is not merely a tradition. Marriage is indeed of an original design followed throughout history as providing for the best interests of the child and of the family as a unit.

Each of the articles that follow were solicited and accepted as agreed by the Stanford University Law and Policy Review editing board into a symposium that focused on whether homosexuality is associated with medical or psychological harm. As you will see, these articles suggest that this question may be answered in the affirmative. However, this result was not what the Stanford editors wanted to promote, so these authors were later refused publication, while those who answered the question presented in the negative were published.

The authors that follow in this law review issue chose to answer the question presented honestly without fear of ostracism. They will be remembered for their intellectual honesty, while the Stanford Law and Policy Review editors and staff will be remembered for their inability to be completely honest with the evidence. The six articles that follow do a superior job of examining the available evidence on whether homosexuality is associated with medical or psychological harm.

Three of the pieces in this issue deal with the effects of homosexuality on children. In Child Molestation and the Homosexual Movement, author and researcher The Honorable Steve Baldwin states very plainly that trends in lowering the age for sexual consent come clearly at the expense of our children, driven by some members of the homosexual community who appear to target youth for homosexual education, experimentation, and even movement expansion. Focusing on sexual abuse and molestation evidence found by California’s Social Services in gay groups, Baldwin argues that homosexuality can sometimes be accompanied by disorders that have dire consequences for children. The author exposes some aspects of the gay lifestyle as a youth-oriented culture targeting children. Using homosexual media and multi-media sources, Baldwin exposes the bulk of pro-pedophile publications, boy prostitution rings and child molestation by gay men. According to Baldwin, some homosexual activism targets children, boys in particular, for deviant sexual exploits and the expansion of the homosexual movement.

Baldwin’s article is significant because it discusses concerns for children that state legislators throughout the decade of the 1990s also recognized–adult sexual predators. At least seventeen state legislatures have seen it as critical in their governance to pass laws protecting women and children against sexually violent predators. But when called upon to support these laws designed to protect children, some may be more concerned about protecting the rights of the adult perpetrator than the child victim.

When prominent people hold that pedophile behavior is not wrong or worthy of treatment, but is acceptable as a lifestyle, parents need to take note. Justice Ruth Bader Ginsburg’s views on child sexuality were made known during her confirmation process. The record of that process shows "positions she has endorsed are . . . the lowering of the age of consent for sexual acts to 12 years . . . ." Jocelyn Elders, Surgeon General under the Clinton Administration, has written a foreword for a publication that supports adult sex with children to be released by the University of Minnesota Press. These are just two prominent people who appear to endorse adults having sex with children.

This type of promotion of child sexuality by adults often gets the cover of children’s rights. These rights of children are more accurately described as opportunities for adults to seduce children to give their consent to sexual activities that interest that adult. Our children are at risk when well-known people no longer protect them from adults who want to get their consent to sexual activities.

Crafting "Gay" Children should capture every scholar’s attention. Dr. Judith Reisman challenges the status quo by demonstrating the intentional screening of recent studies that suggest homosexuality is correlated with mental health concerns. Blaming the mainstream press and the media elite, Reisman exposes the dirty laundry of the gay lifestyle as reported by those within the gay community themselves, showing the propensity for violence and sexual abuse among gays with children. The article argues that the media owes the public a duty to warn of how some within the gay community attempt to guide children into homosexuality when they are vulnerable.

With sources like Paglia and the Gay Academic Union, Reisman makes quick work of the destructively persuasive powers of the press, suggesting that the press is strongly advancing the interest of the sex industry and gay activism. Reisman makes excellent points that cannot be ignored, and uses Aleksander Solzhenitsyn’s powerful statement to summarize her concerns: "The press can both stimulate public opinion and miseducate . . . . The press has become the greatest power within the Western countries, more powerful than the legislature, the executive, and judiciary. One would then like to ask: By what law has it been elected and to whom is it responsible?" The national media has been less than honest, and less than fair, in informing the general public about the concerns of homosexuality. Reisman’s article persuasively demonstrates this point. Dr. George Rekers, in his article, Studies of Lesbian and Homosexual Parenting: A Critical Review, points out the problems and inherent flaws with nearly all the currently available studies and journal articles on gay parenting. The only current flawless study shows that there is still an open question as to whether gay and lesbian parenting is associated with the historically expected effects of significantly higher incidences of sexual abuse, childhood gender dissatisfaction, and adolescent as well as adult homosexual-orientation development and behavior. It is an enlightening challenge to those who conduct such studies. Professor A. Dean Byrd and Mr. Stony Olsen discuss candidly whether homosexuality is innate and immutable. In their piece Homosexuality: Innate and Immutable?, these authors examine the biology and the scientific evidence of homosexuality, reviewing three main studies on the topic. Their discussion also focuses on the nature or nurture cause of homosexuality, leading from etiology to treatment and effectiveness of change. The authors, however, are most concerned with the normalization of homosexuality and efforts to ban conversion treatment. It is a balanced and thoughtful piece that suggests the evidence on this subject is being oppressed by the political pressure surrounding the homosexual phenomenon. Because of the balanced presentation and Professor Dean’s stature as a highly reputed clinician as well as a formidable academic in psychiatry, this article is worthy of serious consideration.

Dr. Ben Kaufman discusses the significance of the National Association for Research and Therapy of Homosexuality (NARTH) in Why NARTH? The American Psychiatric Association’s Destructive and Blind Pursuit of Political Correctness. Because the mental health field has become a political battleground favoring homosexuality, treatment for same-sex attraction has been shunned. Sociopolitical concerns have prevented researchers from conscientious consideration of any reasonable hypothesis, even for a patient who wants to receive therapy for change. While some within the gay community lobby against reparative therapy, other therapists have defended the rights of patients who seek treatment for same-sex attractions based on personal dignity and autonomy. NARTH is a defender of the therapists’ right to provide treatment of homosexuality, simultaneously providing a forum for the dissemination of research on homosexuality. Kaufman points out the lack of fairness in the mental health field when it comes to homosexuality, proffering that NARTH is a beginning to balancing the scales.

In his article Selling Homosexuality to America, marketing expert Mr. Paul Rondeau explores how gay rights activists use rhetoric, psychology, social psychology, and the media–all the elements of modern marketing–to position homosexuality and frame what is discussed in the public arena. Rondeau not only introduces the marketing strategies employed by homosexual activists such as Desensitizing, Jamming, and Converting, he also illustrates each with real examples exposing the systematic, orchestrated, and largely successful efforts of the homosexual activists to "normalize" homosexuality in the public eye.

Finally, the student note in this issue formulates a strategy for opposing same-sex marriage in the courts. This notes identifies pitfalls with current litigation strategies and suggests improvements and solutions. These articles are an important part of the entire body of evidence on whether homosexuality is associated with medical and psychological harm. The legal principles reviewed earlier have set the stage for thorough examination of the truth surrounding homosexuality. Our goal is to afford fairness to all sides of the debate.

All of us need to reconsider our thinking on these matters as a result of this publication. There is a desperate need for fairness, accuracy, and honesty in discussing homosexuality, marriage, and the law. It is our pleasure to challenge you to reflect clearly on these critical matters that will affect our civilization for decades to come.

While the article is two years old it hits the issues as if it were written today.

The article was copy and pasted from a Word doc. It's also available in PDF. See the originals for footnotes.

Q. What's next?

A. In addition to continued recruitment of "gay" children we will see other sexual "rights" advocated:

Surprised this was in ANY law review

I like what Regent said near the top of the article:

If Stanford will not publish them, Regent will gladly do so.

Excellent indeed.

The reason why we can't discuss abuse in the homosexual context is that it points to environmental rather than biological factors in the "creation" of the homosexual, thereby damaging their position.

In too many cases, the homosexual has been exposed to domination or abuse, or lacks strong male or female figures. The abused then become the abusers. I don't see how it can be other than environmental.

Regardless of the cause, the real argument is what's best for society as a whole, and gay marriage ain't it. But, we need to get off the "sin" wagon, and speak of it in a social context if we're going to hold our ground, because civil unions are just as dangerous.

Homosexual Agenda Ping - Looks like a comprehensive, excellent article. If scripter says it's good, you KNOW it's good!

I really like the first sentence [that's all I've read so far]:

If a lie is repeated often enough, those who hear it will begin to believe that lie is the truth.

That simple statement has many applications; it could be the motto of leftists. Note that although the article is two years old, sripter says it is 100% timely.

Let me know if anyone wants on/off this pinglist.

As you will see, these articles suggest that this question [ whether homosexuality is associated with medical or psychological harm ] may be answered in the affirmative. However, this result was not what the Stanford editors wanted to promote, so these authors were later refused publication, while those who answered the question presented in the negative were published.

I very much encourage all to read the articles mentioned above. Here they are in PDF format:

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