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Interview: Stanford University Emeritus Professor, legal scholar Michael Wald speaks to Gay Marriage and Christian issues--by Peter Menkin

Stanford University, Palo Alto, California (located in Northern California, USA) offered the availability of an esteemed law professor for commentary on Judge Vaughn Walker's legal opinion regarding gay marriage in the State being declined; it originally passed through a voter initiative known as Proposition 8. Emeritus Professor Michael Wald generously agreed to a fuller interview on Gay Marriage, and some of its effects of its dimension on Christian issues of "discrimination" based on Christian beliefs.

Professor Wald has been involved in these issues of Gay Marriage for a number of years and related areas of concern, engaging in work in favor of Gay Marriage, being involved in public debates (Pace Law School), and as a legal scholar in children's rights, is published in notable fashion extensively. The reader may want to note that Professor Wald in his interview with this writer done by email and via telephone call (lasting an hour) offers a legal scholar's secular scope of discourse and educated commentary on the questions.

THE INTERVIEW

Please let us know Professor, as a start, what it means to be an Emeritus Professor at Stanford University, Palo Alto, California and tell us about the Jackson Eli Reynolds Professor of Law Chair. Also, as part of this introduction, I see you were a Guggenheim Fellow, 1982-1983. What was your area of study? You've also been at Stanford University since 1967. Have you liked the school all those years, and if you were to tell us what in those years was most significant to you, what would it be.

An Emeritus Professor is retired. I still retain a position at the university. I no longer teach classes on a regular basis, but still work with students and conduct research. I teach on children and family policy. I hold the Jackson Reynolds Chair. Being given a chair is a way for faculty to be given some kind of honor. I have, throughout my career, also done a lot of government service related to children's welfare.

Let us turn to the legal questions regarding Gay Marriage & Christians, now that we've learned a little about you as a Professor. By the way, I see you were deputy general counsel for the U.S. Department of Health and Human Services during the Clinton administration, executive director of the San Francisco Department of Human Services. First about children:

1.
Is adoption by gay couples really a social experiment on children? Though this has political ramifications, what of their welfare and health? Is it fair for the law to regulate culture and religious observance when it comes to religion's formal declarations of activity; a specific issue is the Catholic Church and Gay adoption.

No. Adoption by gay couples or individuals is not an experiment on children. It clearly benefits children to be adopted if their parents cannot care for them. The evidence is clear that children adopted by gay parents do just as well as those adopted by heterosexual parents.

Moreover, it must be understood that the issue for most of these children is whether they will be adopted at all or be left to impermanent upbringing. Most often, children adopted by same sex parents do not have other families looking to adopt them and they would be raised in institutions or foster care if they are not adopted... It is definitely better for these children to be adopted, since adoption provides stability and much greater parental commitment…in all adoption situations,

The adoption agency and courts are required to protect the child's best interests and place the child in a family that best fits the needs of the individual child. The law in the United States does not require Catholic adoption agencies, or other adoption agencies with religious affiliations…that they have to consider place gay couples or any other couples for adoption, unless the agency receives funds from the state to do adoption services.

When an organization, religious or other kind, receives funds from the state to perform a state function, such as adoption, that organization has to do so on a basis that is non-discriminatory and that meets the goals of the law. Thus, an adoption agency that receives state funds cannot refuse to place children with couples that are Jewish or Black or interracial; all couples who apply for adoption with state agencies will be considered and it must be determined on a case by case basis what is best for the child. If a Catholic or any other agency wanted to work only with couples of a certain religion or sexual orientation, it could do so but not with State funds. ,

2.
A recent case that went before the Supreme Court considered issues of Christian conscience and freedom of religion regarding membership of gay students at a California law school in a Christian club. The Court said that was discrimination. Some fear this ruling as a precursor to an attitude of forcing Christians to bend their religious faith to conform to legal rights set by society regarding its concern for gay people. How do you think this will be acted on as a trend and attitude maker regarding future laws and Christian religious rights? Does it inhibit Christians in their faith? Is this fair, and is it an uncommon legal result in other public issues?

Basically, this case raises the same issues as the adoption case. The Christian Law Group at Hastings Law School could limit membership to whomever they want. But once they want to use law school space, all organizations must follow general law school policy.

The law school, which is publicly funded, had a rule that all clubs or organizations that were recognized or received support from the School had to be open to all law students. No organization could limit membership based on an applicant's race, ethnicity, sexual orientation, religion or other such factor. The rule is if you want to be an organization with formal recognition of the law school, you need to be open to all students. The Court decision would have been the same if the applicant had been an atheist and therefore rejected.

3.
What difference is there between the secular and the religious marriage, as you see it in this public area? And secondly, in some denominations the minister or Priest performs a wedding and acts for the state in signing a marriage license. Some ministers, in specific Priests in the San Francisco Bay Area who are Episcopalian, refuse to act for the State because it makes them agents of discrimination at this time when Gay Marriage is illegal. They think it should be legalized, so have refused to do so. Significantly, some even refuse to perform marriages at all as a Sacrament as protest because within the Church, Gay Marriage is not equal to traditional marriage. The question is specifically, what kind of turmoil do you see in legal and public acceptance of Gay Marriage and especially Christians judging by the turmoil the controversy already has caused. Is it worth it, in the ethically legal sense?

In the public arena, there is only secular marriage. Marriage is a set of legal commitments between two individuals. The requirements for marriage are established by state law.

Religious communities in giving marriages a religious blessing may set other regulations. For a long time the Catholic Church and the Church of England did not let people who were divorced get married in a religious ceremony; but those people could still marry under secular law...Ministers of different faiths are authorized to perform marriages, as are judges and some other officials. However, no minister is required to perform a marriage he or she does not want to perform. No judge is required to perform a marriage he or she does not want to perform. The only people who must perform a marriage when requested are county clerks. Religious officials are just one group of officials who may perform marriages, but they do not have to perform them.

There is obviously a great deal of controversy regarding same sex couple marriage. From my perspective as a scholar of family law…marriage, in general, is a good thing for the adults and for the children. It is an equally good thing for same sex couples and their children as it is for opposite sex couples and their children. While recognizing same sex marriages creates some turmoil, it is certainly worth the controversy, because in my judgment it is good for society.

The evidence in places like Massachusetts, Sweden, Denmark, and the other countries and states that have recognized same sex marriage for some time is that there is no ongoing turmoil. The public comes to accept and value these marriages. Interestingly, some very religious countries, Spain, Mexico, Argentina, have recently adopted a policy of recognizing marriage of same sex couples.

4.
Will people in social work fields and counseling have their jobs protected if they conscientiously or religiously refuse to work with gay couples? This is a particularly significant area as some have lost their jobs and even careers over such issues. You may be familiar with some of these cases.

The issue of when a social worker, doctor, pharmacist or other professional cannot refuse to provide services to a particular group of people is complicated and not fully resolved. Various constitutional rights sometimes are in conflict, including rules on non-discrimination, rules relating to freedom of association, and rules relating to property rights. The courts have tried to strike a balance. I cannot fully address the complexities here. However, when one must provide services…it is possible that social workers and counselors may be required to provide some services, depending on the circumstances.

For example, in California, landlords must make their rental property available in a non-discriminatory manner. Landlords may not say they will not rent to gay couples or Black couples or those of a particular religion... When you open your business to the public, the law says you have to do it on a non-discriminatory basis. Because we are a country that values individual freedom and properties rights and freedom of association, there is a tension between the public goal of preventing discrimination and these other public goals: freedom of association, property rights, etc. The law in the United States has generally resolved these by saying that the value of non-discrimination is more important than these other values.

We've previously talked about how the goal of non-discrimination has been seen as limiting some other rights of people, as in the case of a landlord not being allowed to discriminate in renting her or his property. Now whether people in counseling fields who hold themselves out to the public should have to counsel people is a difficult balance. [To probe more deeply.] We don't want discrimination.

There is a relationship between counselors and people being counseled that requires some degree of relationship. So the balance may be different. And it hasn't as much public rejection, as a restaurant or a rental unit. On the other hand, for certain types of jobs where people have a very important kind of function, for example pharmacists…pharmacists cannot refuse to give people birth control pills….pharmacists have to give what medications are prescribed by doctors. They cannot give patients medicines based on their religious beliefs. Similarly, if a social worker worked for a public agency or took public dollars for their practice, like Catholic charities… if organizations want to use public money to support the services they are offering, then in almost all situations, we have decided and I agree with this decision… these services have to be decided on a non-discriminatory basis.

5.
In England, Gay Rights trump Christian religious sensibilities and public practice by individuals to a confining extent. At least judging by a number of cases, especially a notorious one where a nurse prayed a Christian prayer for a patient in a hospital and spoke to her about faith and healing in the patient's hospital bed. She was severely reprimanded and suspended, if memory serves correct. The point is does the legal broadening of Gay Rights shake the social fabric in a way that constrains and influences public attitudes and social practices in discriminatory ways towards Christians?

I don't know the facts of this case; it is a general duty of doctors and nurses to perform their duties in a manner that is very sensitive to the patient's sensibilities and well being. If a patient doesn't want counseling of a religious or of any other nature, it would be bad professional conduct for a doctor or nurse to do that.

For some patients, it may give them a great deal of comfort if a nurse prayed for them, for others, this would be unacceptable. The helping professional must be very careful that her or his actions are what the patient wants. It's my understanding that Chaplains and other professionals are trained to approach the person in the way that is most helpful to each individual. If it's with religious support they will do it; if not with religious support they will find a way that helps them.

6.
That's the question list I've prepared for our interview, and at this time I ask if you'd like to add anything of your choosing, or make some statement on the subject.

Obviously the issue of same sex marriage raises a number of fundamental value issues for people. Some people have criticized Judge Walker in the Proposition 8 case for overruling the vote of a public majority. They say it is wrong for a judge to be able to overrule the will of the people. However, that's what the Constitution was designed to do--to have courts protect minorities from majority rule in certain situations.

For example, the judges over-ruled the will of the people in many states to keep Black students in segregated schools. Just recently, the Justices of the U.S. Supreme Court over ruled the will of the people of Chicago and the District of Columbia, to limit the possession of guns.

These gun bans reflected "the will of the people" but the Justices said they violated the constitutional rights of the minority of people who want to possess guns. Judge Walker's striking down Proposition 8 as unconstitutional is the same as the Supreme Court declaring Chicago's ban of handguns illegal.

End interview

About the Author

Peter Menkin, an aspiring poet, lives in Mill Valley, CA USA (north of San Francisco). My blog: http://www.petermenkin.blogspot.com He is 63 years old as of 2009.

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