February 15, 2008
The Honorable C. Anthony Muse (anthony.muse@senate.state.md.us
)
Maryland State Senate
304 James Senate Office Building
11 Bladen Avenue
Annapolis, Maryland 21401
Dear Senator Muse:
I attended yesterday's Senate Judicial
Proceedings Committee meeting with my wife Barbara, who spoke about our
children in supporting S. 290. Unfortunately, you had to leave the room before
she so movingly explained the need for children who happen to be gay to know
that they will not be treated as second-class citizens when they grow up. Her
testimony is attached.
I listened with great interest to your
questions. Perhaps these perspectives will be useful to you.
1. First, the question of whether the
movements for equal rights for African Americans and for gay Americans are
exactly the same. I agree
with you that they are not identical. The reality was and is that African
Americans (except for a small number of very light-skinned people) cannot avoid
discrimination because they are obviously African American. Gay people can
hide, can "pass." That is a very big difference.
The
salient issue before the Committee on S. 290 is whether gay people should have
to “pass” to avoid discrimination. Should they have to pretend to be straight
-- including marrying people to whom they are not romantically attracted -- in
order to be full citizens? We all know the deleterious effects on people who
must hide who they truly are -- whether people who "pass" as white,
or people who "pass" as straight.
2. The answer to the first question leads
to the matter of whether gay people can choose to be straight, or whether their
sexual orientation is just the way God made them. This was of particular interest to my wife
and me, since we have two gay sons. We learned that the mainstream medical and
mental health professional associations have concluded that one’s sexual
orientation is not a choice. Here, for example, is what the American Academy of
Pediatrics has concluded about why some people are gay:
A
variety of theories about the influences on sexual orientation have been
proposed. Sexual orientation probably is
not determined by any one factor but by a combination of genetic, hormonal, and environmental influences. In
recent decades, biologically based
theories have been favored by experts. The high concordance of homosexuality among monozygotic twins and
the clustering of homosexuality in family
pedigrees support biological models. There is some evidence that prenatal androgen exposure influences development of sexual
orientation, but postnatal sex steroid
concentrations do not vary with sexual orientation. The reported association in
males between homosexual
orientation and loci on the X chromosome remains to be replicated. Some research has shown neuroanatomic differences
between homosexual and heterosexual
persons in sexually dimorphic regions of the brain. Although there continues to be controversy and
uncertainty as to the genesis of the variety of human sexual orientations, there is no scientific evidence
that abnormal parenting, sexual abuse,
or other adverse life events influence sexual orientation. [emphases
added.]
The full AAP report may be found at http://pediatrics.aappublications.org/cgi/content/full/113/6/1827) See
also the American Psychological Association’s Answers to Your Questions
About Sexual Orientation and Homosexuality, which may be found at http://www.apa.org/topics/orientation.html.
For
your information, attached is a Fact Sheet from the Metro DC Chapter of
Parents, Families, and Friends of Lesbians and Gays (PFLAG) summarizing the
conclusions of mainstream medical and
mental health professional associations.
If
gay people do not choose to be gay, why should they be prohibited from having
the same rights and responsibilities with regard to their life partners as
straight people? Particularly since we want to encourage stable, monogamous
relationships, why should gay people be pushed into the shadows? If we want to
encourage stable, monogamous relationships, shouldn’t we extend full marriage
rights to gay people? (If I had a daughter, I certainly would not want her to
marry a gay man – for such a marriage would be false and ultimately painful to
both of them.)
3. I understand that some people have
religious objections to the government's sanctioning of same sex relationships.
People have told me that
they, personally, do not care whether gay couples are allowed to marry, but
that they must oppose it because their religion (and, by extension, their
understanding of what God commands) opposes it. Of course, different religions
have different understandings of what God commands. For example, the position
of the Roman Catholic Church, contrary to that of other denominations, is that
God instructs that divorce and birth control methods (other than the “rhythm”
method) are barred. We do not enshrine that in civil law because we understand
that theology should not dictate civil law.
Some
religious denominations oppose same sex marriage, while others support it. The
question posed yesterday by Senator Simonaire was whether any religious
viewpoints should have a role in how the state government deals with whether
marriage rights should include gay couples.
I think that misconstrues the issue. The question, I would suggest, is
whether particular theological
viewpoints should be determinative. This should not be, fundamentally, an issue of whose theology
ought to prevail in the General Assembly – just as it is not an issue with
regard to civil divorce or birth control.
I
think Senator Obama set forth the framework best, in discussing how religious
viewpoints should impact on important social issues, given that there are so
many different theological viewpoints in our society:
What
our deliberative, pluralistic democracy does demand is that the religiously motivated translate their concerns into
universal, rather than religion-specific values.
It requires that their proposals must be subject to argument and amenable to reason. If I am opposed to abortion for
religious reasons and seek to pass a law banning
the practice, I cannot simply point to the teachings of my church or invoke God's will and expect that argument to carry
the day. If I want others to listen to me, then
I have to explain why abortion violates some principle that is accessible to people of all faiths, including those
with no faith at all.
The Audacity of Hope, p. 219 (emphasis added).
The
same analysis applies to the question of whether gay couples should have the
same legal rights and responsibilities as straight people. So the question
before the General Assembly is really how “universal, rather than religion-specific
values” inform the issue of whether equal marriage rights should be extended to
couples, regardless of sexual orientation. That universal value is the Golden
Rule.
Senator
Obama’s formulation leads us to make a distinction between theology and morality.
Attached is a presentation I gave at my synagogue at our annual Martin Luther
King service in January 2005, entitled Theology, Morality, and Faith: A
Legacy of Dr. King. This presentation does not discuss gay rights. It does
discuss Dr. King's teachings in terms of how we use our religious convictions
in the governmental sphere. At bottom, the lodestar in terms of how we judge
what is moral is the Golden Rule. I would point you to one particular passage
from the sermon:
If
the Golden Rule is just the starting point, how do we decide, in each instance,
what is moral?
Dr.
King addressed this question in a 1961 discussion of the difference between
just and unjust laws in the context of
segregation statutes.
"What
is the difference,” he asked, “between a just and an unjust law?” “I would say,” he answered, “that an unjust law
is a code that the majority inflicts on the minority
that is not binding on itself.” But this was not the end of his analysis. He elaborated on the question in his Letter
from the Birmingham Jail in 1963: “How does
one determine when a law is just or unjust? . . . . Any law that uplifts human personality is just. Any law that
degrades human personality is unjust.”
The
stories told at yesterday’s hearing show how extension of equal marriage rights
to gay couples “uplifts human personality,” and that the current ban on same
sex marriage “degrades human personality.” I believe that is why Mrs. King was
(and Congressman John Lewis is) such a strong supporter of equal marriage
rights for gay people. And while theology should not govern this issue, I would
ask, "Would a loving God expect any less?"
4. Finally, you asked Attorney General
Gansler whether he would be in favor of putting the same sex marriage issue to
a referendum, as is being done with the slots issue.
Whatever one thinks of the Governor’s
proposal to “punt” on the slots issue by putting it to referendum, slots do not
raise issues of fundamental human rights. Just as it would have been an
inappropriate in the 1940s, 1950s, and early 1960s for repeal of the
anti-miscegenation laws to be put to referenda because a legislatures (or
courts) did not want to take their responsibilities for the protection of human
rights seriously, the General Assembly should not punt on this issue either.
A
fundamental principle of our representative democracy is that our elected
leaders deliberate over difficult questions, calmly assessing the issues, and
coming to just conclusions. Having done such justice, they are then answerable
to the voters. If voters have different views, then it is the job of incumbent
legislators to explain their votes. That is the essence of leadership. And that
interaction between the electorate and their legislators is far more amenable
to reasoned public discourse than the referendum process, in which special
interest groups can pour in huge amounts of money and (too often) lie and
distort the issues in contexts in which voters are not always paying full
attention. We have a representative democracy because important issues should
be given full deliberation. Government by plebiscite has always been a dubious
proposition, particularly when it comes to basic human rights. We certainly
would not have wanted such a governing theme in the 1950s and early 1960s. The
genius of the American experiment in representative democracy is that we
understand that core individual rights ought not to depend on the transient popularity or unpopularity of certain groups.
Thank you for taking the time to read
this. If I may be of any assistance as you work through these issues, please do
not hesitate to contact me.
Sincerely,
David S. Fishback
Member, Board of Directors, Metro DC
Chapter of Parents, Families, and Friends of Lesbians and Gays (PFLAG)
cc: Democratic
Members of the Senate Judicial Proceedings Committee
Senator
Madaleno
Senator Kramer
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