Good reporting vs. bad faith arguments

SAN FRANCISCO - MAY 26:  Supporters of Proposition 8 hold  signs outside of the California Supreme Court May 26, 2009 in San Francisco, California. The California State Supreme Court voted 6-1 to uphold proposition 8 which makes it illegal for same-sex couples to marry in the state of California. More than 18,000 same-sex couples that wed before prop 8 was voted in will still be legally married. (Photo by Justin Sullivan/Getty Images)

Few would disagree that the debate over same-sex marriage is more charged than usual. Charges of bad faith and bigotry abound. Honest reporting can help cooler heads prevail. Many of the arguments in this debate have been badly mangled, and that’s why I was so pleased to see this Religion News Service piece by Daniel Burke on “Why Prop 8 ruling scares religious conservatives.”

Burke does an excellent job explaining the reaction of proponents of traditional marriage to Walker’s decision and the legal objections being put forth. Here’s how Burke explains the objections to Walker’s attempts to de-legitimize religion as a valid basis for making law:

“Judge Walker claimed to read the minds of California’s voters, arguing that the majority voted for Proposition 8 based on religious opposition to homosexuality, which he then rejected as an illegitimate state interest,” R. Albert Mohler, president of a leading Southern Baptist seminary in Kentucky, wrote in an online column. “In essence, this establishes secularism as the only acceptable basis for moral judgment on the part of voters.”

Prop 8 backers appealed Walker’s decision. Jim Campbell, an attorney with the Alliance Defense Fund, a conservative Christian law firm involved in the litigation, said the religious-freedom argument will play an important role as the case moves up the federal judicial ladder — including, potentially, the U.S. Supreme Court.

“At bottom,” Campbell said, “our strategy here is, and has always been, that in this country we should respect the rights of the people when they do what they have always done: vote based on their religious and moral convictions.”

Abolitionists, anti-abortion activists, and civil-rights activists all have been motivated by personal faith, Campbell argued. “To be blunt, we felt [Walker's decision] was an all-out attack on religion.”

It’s a broad argument that encompasses a lot, and we get both extensive quotes from some of the players and even some historical context. Refreshing! Of course, there’s also some more neutral and/or critical perspective on these objections. That’s very helpful for putting the legal validity of anti-gay marriage arguments in perspective:

Howard Friedman, an emeritus law professor at Ohio’s University of Toledo, said the judge is not attacking religion per se; he is just not giving religious expression any special consideration.

“He’s basically saying that a private moral view isn’t a rational basis for legislation,” said Friedman, who writes the popular “Religion Clause” blog. “Case law goes both ways on that. There are certainly some cases that say a merely moral view isn’t enough to support legislation; on the other hand, there are some cases that talk about laws being a moral view on society.”

I did, however, strenuously object to one part of the article. The juxtaposition of these two paragraphs was not handled well:

SAN FRANCISCO - AUGUST 04: Buttons opposing Proposition 8 are displayed during a rally to celebrate the ruling to overturn Proposition 8 August 4, 2010 in San Francisco, California. U.S. District Judge Vaughn Walker announced his ruling to overturn Proposition 8 finding it unconstitutional. The voter approved measure denies same-sex couples the right to marry in the State of California. (Photo by Justin Sullivan/Getty Images)

Walker devotes several pages in his ruling to identifying religion as a prime source of anti-gay animus, listing examples from the Vatican and the Southern Baptist Convention, and noting that 84 percent of weekly churchgoers voted in favor of Prop 8, according to a CNN exit poll.

As if to prove Walker’s point, Los Angeles Catholic Cardinal Roger Mahony released a statement that said, “Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.”

Emphasis mine. I don’t think anything Cardinal Mahony is saying here can fairly be construed as “prov[ing] Walker’s point” that religion is a “prime source of anti-gay animus.” Further, I think the debate is a bit more nuanced. What constitutes “anti-gay animus”? Believing that marriage should remain a heterosexual institution doesn’t necessarily mean you harbor any ill will toward gay people, though I’m sure the pro-gay marriage forces would love to argue that any opposition to same-sex marriage is the tip of the bigotry spear.

But the piece was otherwise well-handled, so I’m going to give Burke the benefit of the doubt. It’s very possible the phrasing and juxtaposition here was unintentionally haphazard. I really hope we see more pieces that make good faith efforts to present all arguments in this debate in the best possible light. I think it does clarify the discussion a bit, and generally help make the debate more honest.

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  • Ray Ingles

    Believing that marriage should remain a heterosexual institution doesn’t necessarily mean you harbor any ill will toward gay people…

    By the same token, believing that races shouldn’t intermarry doesn’t necessarily mean one harbors any ill will toward other races.

    No, really, it doesn’t. One could love other races as being equally in the Image of God (or equally evolved, or what have you) while also believing that they shouldn’t mix. The question is, how often does this show up in practice? How would one go about evaluating that?

    I wish there’d been a critical evaluation of the closing comment in the article, too:

    “Freedom of religion and freedom of speech allow us to speak without his deeming us harmful,” Walsh said. “Our teaching is our teaching.”

    No, freedom of religion and freedom of speech allow them to speak, period. It doesn’t prevent anyone else from speaking and saying they are harmful. It also doesn’t mean that the policies they advocate are automatically legal or constitutional.

  • Mollie

    So early in the day for an invocation of my Loving Corollary to Godwin’s Law!

  • James


    Coming up with a cutesy name for an attempt to silence the use of a logical and reasonable analogy that just happens to make anti-gay bigots uncomfortable (by lumping them in with their racist forebears) makes the analogy no less logical or reasonable. If it makes you uncomfortable to be compared to racists, perhaps you should take that as a sign that you should repent of your position and start working for equality.

  • Martha

    I am certainly amused by the depiction of Cardinal Mahony as the Hammer of Anti-Gaydom.

    Poor man – he’s getting it in the ear from everyone! On one side, as being a squishy liberal and now on this, as being a rabid conservative!

  • Mollie

    Well, Godwin never accused employers of Hitler analogies of being illogical or unreasonable. It’s just that these arguments tend to shut down discourse, rather than engage it. That’s the problem. But it’s kind of hard to engage when the first volley is “Bigot!”

    Either way, we don’t discuss same-sex marriage here on this site but, rather, media coverage of religion news.

  • Julia

    The major objection to gay marriage is based on anatomy and biological functions.

    Skin color/race has no distinguishing biological function.

    I’ve not seen this mentioned in any media coverage of the arguments pro and con.

  • Ray Ingles

    Mollie, Mark’s post specifically discussed the point of ‘bigotry’, and attempted to make a specific point about it. Addressing that point seems ‘in bounds’ to me. A volley involves returning a serve, no?

  • mark


    The point I made was that accusations of “bigotry” shut down discourse. If the response to that is that it’s now fair game to argue whether same sex marriage opponents are bigoted because I mentioned the word bigotry, then I think you’re interpreting my point to be a lot broader than it was and inadvertently proving it in the process.

    That said, I do appreciate you made your initial point with at least some awareness that it was incendiary and made some other helpful observations. So please — let’s not get derailed by this.



  • Dave

    Julia, dark skin color is a protection from burns due to intense rays of the Sun. Light skin color is admissive of solar rays in the interests of generating Vitamin D.

    It’s true there is no biological function of “race” because there is no such thing. It’s an arbitrary artificial construct imposed on a handful of physical characteristics.

  • Jeffrey

    It’s intellectually dishonest to take Loving off the discussion table when discussing the legal merits of expanding the right to marry on Constitutional grounds or in discussion journalism about the legal case.

    As to the article, I agree with Mark about the transition into the second paragraph about Mahony but only to a point. The story is about a legal ruling. The ruling said public comments by religious leaders and groups led to animus. Mahony did, in fact, prove the judge’s point by issuing a statement condemning same-sex marriage because it was the kind of evidence the judge relied on.

    The transition is a little awkward, though, and for those who are prickly about being labeled “bigots,” it was unelegant given the prior paragraph.

  • Ray Ingles

    Mark – Forgive me for essaying another analogy, but… does using the term “murder” when discussing abortion shut down discourse? Isn’t the whole point about “what constitutes” murder?

  • Jeff K.

    One thing no one has ever explained to me with the freedom of religion point, is how can we say that gay marriage should be denied on this basis when there are religions churches and signage’s that are for this.

    Should not the religion aspect be left out, either way we decide are trampling on someone religious freedom no matter what side you come down on?

    Sorry if I am not more eloquent, I just see both sides of this issue and keeping wondering if we have freedom of religion in this country doesn’t that mean that one religion should not dictates law that effect the masses.

  • Images of Jesus

    What an interesting discussion. One must wonder what happens when biological disconnects happen such as the case with transgender folks. There are medical cases of those with physical traits of both genders. What is the outlook for them should they determine that their gender is opposed to the ‘most’ obvious?

  • Images of Jesus

    (my earlier post had an error in the email address – this is to correct that)

    What an interesting discussion. One must wonder what happens when biological disconnects happen such as the case with transgender folks. There are medical cases of those with physical traits of both genders. What is the outlook for them should they determine that their gender is opposed to the ‘most’ obvious?

  • Jerry

    Typically stories about gay marriage ignore the world-wide context which shows that attitudes are changing and consequently the laws in many places in and outside the US. This is used, of course, as proof that we’re either headed in a more just direction or down into moral decay, depending on people’s belief system. But rarely if ever are we seeing the trans-national changes reflected in the news.

    As far as Godwin’s law goes, when you have two polar opposite sides that are convinced that they are on the side of good and the other side is evil or promotes evil, the result will often be name calling.

    The piece Mark is commenting on reads as an editorial not a news story. It ignores that the judge’s decision was based on a “finding of fact”. So that RNS piece is totally off base because it ignores the basis of the decision.

    Maybe the legal team in favor of prop 8 missed the boat in how they constructed their legal argument, but that’s a different matter. The question at hand was did they present sufficient facts about the value of heterosexual marriage to prove their case. The judge ruled they did not. From what I’ve seen, those in favor of prop 8 have ignored the actual facts about the basis of the decision.

  • Perpetua

    The judge in this case, Vaughn Walker, seems to be creating a whole body of jurisprudence against the right of religious people to morally criticize same sex behavior. According to the Huffington Post:

    In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son’s teacher had made in the classroom.

    In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier for a religious group that promoted “natural family, marriage and family values.” The city had “significant interests in restricting discriminatory speech about homosexuals,” Walker wrote in his 2005 ruling.

  • Dave

    Jerry, the defense legal team had a tricky assignment, the difficulty of which I haven’t seen covered in the media I follow. They had to establish a compelling state interest in preserving Prop 8. (It doesn’t matter that the decision was by a popular vote, the standard is the same.) Even stipulating all the religious and secular-traditional arguments for the customary arrangement, they don’t create a compelling state interest because gay marriage does not take anything away from straight marriage. That is what I haven’t seen explored adequately.

  • Dave

    Perpetua, the first case you cite from Huffington is an example of what Maggie Gallagher presciently wrote several years ago about what will happen as gay rights collide with religious rights (short answer: gay rights win). The parents had no more standing than parents religiously offended by the teaching of evolution.

    In the other case, free speech of employees is always subject to curtailment in the workplace. Consider sexual harassment laws, eg.

  • Perpetua

    Well, Ray Ingles points out to me that I made an overly broad claim in my comment above. In the case Karl Debro filed against the San Leandro School Board, here are some paragraphs from a lengthy article in Salon’s Mothers Who Think from the time:

    The most contentious issue, however, involves GS/A co-founder Karl Debro. After investigating complaints by the parents of two of his students, Superintendent Himmelberg concluded that Debro had committed serious breaches of professional conduct, including failing to adhere to prescribed course curriculum, humiliating individual students in his class and denigrating their parents’ religious and political beliefs, and misusing his authority as a teacher to promote ideologies and causes he personally favored. Himmelberg entered two lengthy letters of censure in Debro’s personnel file.


    Both the complaints against Debro and the superintendent’s findings remain confidential documents, but it was apparent from testimony that Debro stood accused of publicly humiliating the Godkins’ son Jason, and another student, Elizabeth Lanet, ridiculing their Christian faith and defaming the youngsters’ parents. The offenses allegedly occurred in class the day following a heated school board meeting at which PIPE activists Jim Godkin and Jeff Lanet accused Debro of pressing a pro-homosexuality agenda on his students instead of preparing them for the SAT exams. “Mr. Debro sees it as his role and purpose to teach his own view of gay rights so (students) won’t become like their parents,” Wood charged. He also accused the teacher of revealing to the class that Jason’s parents had brought charges against Debro, violating the family’s privacy and exposing their son to harassment.

    Debro’s attorney countered that the charges against his client were either false or exaggerated, and part of a scheme by “a vocal minority” seeking to “control not only what their children hear, but what all children hear” in school. “It’s a flat-out lie that Karl Debro brought up the discussion of the board meeting,” asserted Kemp, a small, wiry man who danced like a boxer when he spoke. Denouncing Himmelberg’s investigation as “shoddy,” he accused the school superintendent of “trying to lynch” Debro. “He’s a facilitator,” the lawyer insisted. “When he leads a discussion there’s never any proselytizing.”

    (Regarding the accusation of “trying to lynch”, Debro was African-American, married to a woman and saw gay rights as analogous to black civil rights.)

  • Kevin J Jones

    Walker devotes several pages in his ruling to identifying religion as a prime source of anti-gay animus, listing examples from the Vatican and the Southern Baptist Convention, and noting that 84 percent of weekly churchgoers voted in favor of Prop 8, according to a CNN exit poll.

    The prime follow-up story here is to track down these churches and see what they think of having their teachings categorized as harmful by a federal judge.

    One big story was that the “examples from the Vatican” were from a document authored by Cardinal Joseph Ratzinger, now Benedict XVI.

    It’s easy to read Judge Walker’s “finding of fact” about the harmfulness of certain religious beliefs as a list of anathemas. While his finding of fact is limited to this case, if that view spreads we could have a lot of nasty legal battles.

    And that’s a big story, too.

  • Perpetua

    Hi Dave,

    I disagree with your equation of the case of the parents as being equivalent to teaching evolution because teaching evolution is relevant to the science curriculum. In San Leandro we had an English teacher promoting homosexual behavior in an English class ostensibly devoted to SAT prep. That’s off topic. Also we had the math teacher using the class period to promote homosexual behavior. Way off topic. If we were talking about a Health Ed class that discussed homosexuality in the context of Sex Ed, I could see your point a little. But these were teachers going way off the subject of the class to promote homosexuality.

  • dalea

    I felt the article would have been better had it paid more attention to the details of Walker’s ruling which can be found here:

    Judge Walker clearly states that moral approval alone is not sufficient to justify a law; there must be a rational argument that the law advances a state interest. And state interests are wholly secular. I get the impression that the writer has not studied the actual ruling and instead used comments about the ruling. The ruling, beginning on page 134, goes into a long explanation of why moral disapproval alone can not justify a law. Coverage of the issue would be greatly improved by reading the whole ruling.

  • tioedong

    Your readers might want to check China Daily’s take on how Homosexual activity was tolerated by China but these men were expected to marry and produce children to keep up the family line.

    I have yet to find out where or when same sex marriage was accepted outside of a few modern countries in the last decade (as opposed to something frowned on as eccentric, not encoded in the legal system, and disapproved of by the majority).

    What do Buddhists, Muslims, or Hindus say about this?

  • BJ Mora

    This is an interesting take – that the judge’s declaration of gender’s unimportance in marriage is fallacious:

    That is, even if you grant an egalitarian view of marriage, the fact that men and women could be equal in marriage doesn’t mean they are the same.

  • dalea

    BJ Mora says:

    This is an interesting take – that the judge’s declaration of gender’s unimportance in marriage is fallacious:

    Here again, not reading the actual verdict brings confusion. The judge said that in California marriage law there are no gender specific requirements: people have all the same duties, benefits and obligations regardless of gender. His statement referred only to California law, which was the subject of the trial.

  • Jeff K.

    How does men or women being the same or different have any effect on the issue of gay marriage, all people are different, and honestly all marriages are different. I can think of many couple that are married the do not fit into role, being strictly male or female at this time. It would be nice to see some reporting dealing with the issue that all marriages are in a state of flux, or better yet that the role of marriage are in state of flux, and does adding gay marriage to this add to or take away from the institution of marriage.

    When in a ever-changing would the answer we do this because we always have done it this way, is not an answer but to me just an excuse for not looking at all options to be fair to all parties involved.

    But I was raised in a family that believes that the bible is a living thing, something that we need to read and interpret for own lives, not something that one ever forces onto someone else, because there view does not match our own.

  • Perpetua

    Hi Jeff K,
    I’m wondering how you think babies are made and what human differences you might perceive to be involved.

  • Jimmy Mac

    Until divorce is outlawed, I won’t pay much attention to the hand-wringing about the sanctity of matrimony. Yes, it’s MATRIMONY that has the religious aspect, not marriage.

  • KJS

    Jeff K,

    There isn’t any “one religion” opposing same-sex marriage, but a (rather loose) conglomeration of different religious organizations & individuals, as well as others who have no especially religious motivation for their opposition. I am puzzled by the idea, often presented, that there is a single religious minority fighting against gay marriage to impose their singular religious dogma on the other-religious & non-religious majority, who otherwise staunchly favor legal recognition for same-sex marriage. The notion is ridiculous.


    One of the findings in the decision was “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Granted it is only one of the findings, but I’m not sure how you can say that the basis of the decision has been ignored. One could argue, in line with Judge Walker’s finding, that state sanctioning of same-sex marriage harms those who believe same-sex relationships to be sinful, because it would provide state backing to stereotypes that such people are uneducated bigots.

    Jimmy Mac,

    In the English language, and in American law as far as I know it, “matrimony” is synonymous with “marriage.” You may perhaps be thinking of the distinction in Roman Catholic & Orthodox sacramentology between Christian marriage, which is a sacrament, and non-Christian marriage — which sacramental distinction, it is worth noting, does not obtain in most of the Protestant world. In either case, marriage as a social institution has a sanctity derived from God’s ordinance of it at the creation of mankind, regardless whether the parties involved are themselves Christian.

    You are quite right to point out that looser divorce laws, from such a religious position, degrade the sanctity of marriage — or at least they should be considered to do so. However, that legal battle has already been lost. You don’t really expect Prop 8 supporters to first go back & change divorce law before they can fight against what they believe is a further assault on marriage, do you? One must fight at the front where the battle is actually happening, after all. Only then might he go on to regain lost territory.