Tuesday, June 27, 2017

2008 Letter to State Senator C. Anthony Muse



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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