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Married gay couple challenges UT's surrogacy law/Colorado Baker Heads to SCOTUS

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Utah legislation is back in the news as another battleground regarding civil rights related to marriage between gay men.  The Salt Lake Tribune reports:

Quote

Married gay couple challenges Utah's surrogacy law after court denies petition

Case may be the first in the nation to consider gender discrimination in surrogacy.  By Jennifer Dobner

 ·  3 hours ago

Jon and Noel started talking about having a family not long after they married in 2013.

An author and a professor who have been together more than a decade, the couple considered adoption, but settled on surrogacy out of a strong desire to have a biological child.

That plan was derailed last year when a southern Utah judge denied their petition to enter a surrogacy agreement with a woman who wanted to help make their family complete.

 

“We were shocked and we were hurt,” said Noel, who along with his husband spoke on condition they be identified only by first names to protect their privacy. “Straight couples don’t experience this.”

The couple is asking the Utah Supreme Court to declare a portion of the state’s gestational surrogacy law unconstitutional because it deprives gay men the right to have biological children through surrogacy.

That’s because under the law a married couple is required to provide medical evidence that the intended “mother” is medically unable to unable to carry a child.

That means the law can be used when the prospective parents are married heterosexuals or married lesbians, but married gay men are left out.

That exclusion violates the due process and equal protection clauses of the U.S. Constitution, as well as the uniform operation of law clause in the Utah Constitution, attorneys for Noel and Jon wrote in court papers.

 

“As written, [the law] creates two classes of intended parents; one class for married same-sex male couples and another class for married couples where at least one of the intended parents is female,” attorney Edwin Wall wrote in a brief filed with Utah’s high court.

Justices are set to hear argument in the case on Tuesday at 11 a.m.

The case is the first of its kind to come before the Utah court.

It may also be the first time any U.S. court has considered a challenge to surrogacy laws, which differ from state to state, on similar grounds, Yale law professor Douglas NeJaime said.

“It’s a complicated question.” said NeJaime. “But, I think these are new arguments and there has yet to be a court the country that has struck down a surrogacy law on the grounds that the discrimination is based on sexual orientation or gender.”

The Utah case is on appeal from the 5th District, where in August 2016 Judge Jeffery C. Wilcox said he believed he had no choice but to deny Jon and Noel’s petition “because neither of the legally married intended parents are women.”

 

Utah’s current surrogacy law was enacted in 2005, well before same-sex marriage was legal in the Beehive State. Under the statute, surrogacy agreements are only enforceable if they have been approved by a judge.

Widenar University law professor John Culhane, who frequently writes about legal issues for LGBTQ individuals and couples, said Utah’s law seems reasonable when viewed strictly as a contract issue, but it doesn’t work in the wake of the 2015 U.S. Supreme Court decision in Obergefell, which legalized gay marriage for the country.

“If marriage equality really means what the Supreme Court said it does, then that should mean this gay married male couple should have the same entitlements as others,” said Culhane.

Attorneys for Jon and Noel make a similar argument in court documents, adding that the Utah law may need a rewrite by legislators to remove gender-specific terms.

“The legislative objective was to afford the marital benefit for intended parents to have their own genetically related children,” court papers say, “not to improperly discriminate against married same-sex male couples.”

The equality argument, Culhane said, is one that any state would be hard-pressed to defend against.

 

“It’s tough to see how you could really exclude two men, or argue that the statute has to be read by its strict terms,” he said.

In fact, the Utah attorney general’s office, which typically defends state laws before the court, is not fighting Jon and Noel’s case.

In its own brief, the office agrees that the district court’s order should be reversed and supports a gender-neutral reading of the statutes, the brief from Assistant Solicitor General Brent Burnett said.

That’s an important and interesting twist to the case, DeJamie said, but that doesn’t necessarily mean the case will go as easily as some may believe.

“I can assure you that a lot of other states where this question will arrive will fight it,” he said, because in some places, terms like “mother” and “father” have been used specifically to bar gay couples from parenthood.

Jon and Noel said they initially considered abandoning their dreams of raising a family.

 

Ultimately, they said they decided to challenge the ruling to help ensure that all couples have the same rights in Utah and across the country.

“We were able to marry because of what other people had done and in a small way, we could participate in helping to ensure rights for people like us,” said Noel. “We’d like to have a child. We think that’s not an unreasonable request of the state.”

(ARTICLE ENDS HERE... for some reason, I still can't get the "End Quote" feature to work... anyone know how to fix this???  What follows below is me, despite the fact it's still in the Quote box)

 

Obviously, The Proclamation on the Family currently seems relevant to how Utah law is written...  I'm actually surprised that UT women are required to medically prove that they can't carry a child to term before being allowed to consider a surrogate.  That even seems beyond what the Proclamation teaches...

What do you all think?  Should the state be allowed to bar gay men from surrogacy?  Is the discrimination justified?  If anyone hears whether the LDS church officially weighs in on the issue, I'd love to hear it, too.

D

Edited by Daniel2

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Legally I think they can do whatever they want in regards to having a family. Biologically is a different question. They are paying someone to have the baby for them.

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4 minutes ago, thesometimesaint said:

Legally I think they can do whatever they want in regards to having a family. Biologically is a different question. They are paying someone to have the baby for them.

I would assume I already know the answer to this question, but do you believe they should legally be allowed to pay for someone else to have the baby for them (presuming, of course, the woman is in full agreement with the terms of the contract), just as other non-fertile couples can?

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44 minutes ago, Daniel2 said:

I would assume I already know the answer to this question, but do you believe they should legally be allowed to pay for someone else to have the baby for them (presuming, of course, the woman is in full agreement with the terms of the contract), just as other non-fertile couples can?

I'm conflicted about surrogacy, as a legal matter. From what I've seen it is an inherently unequal arrangement. I guess an equal contract could be drown up. But I'm more for liberal adoption laws than surrogacy at this point.

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I don't think it makes sense to allow lesbian couples to have the option of surrogacy and not gay couples comprised of two men.  It seems pretty obvious that that's not going to fly.

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I find the case interesting.   But I think a state could have a different interest in making same sex couples parents on the basis that creating families without a mother and a father doesn't provide children all of what they need.  In my perfect world, the only times same sex couples would be able to adopt is when the kid's needs for existing bonds outweighed their right to live in a home with a mother and a father.   So if they couldn't find a suitable opposite sex couple, then single parents or same sex parents could adopt.   But if there was some familial relationship that meant for these specific children the same sex couple were the most appropriate choice, then same sex adoption would be allowed.   I think states should be allowed to assert their interest in having all children in homes/families with mother and a father, to the extent that is possible.

I've often wondered what will happen when a state approves a child from foster care being adopted by a same sex couple and the child sues for neglect or even intentional harm when they reach majority, not because their same sex parents were bad or awful to them, but because the state refused to recognize that both a mom and a dad are a superior choice for development of a child, absent some specific reason that isn't so for a particular child (for instance a foster child who has been abused by one sex, might fare better in an adoptive home with two parents of the other gender).

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2 hours ago, ALarson said:

Good for them!  I believe this law will be declared unconstitutional and it should be.

This will be interesting to follow.  Thanks for posting about it, Daniel.

I agree.

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1 hour ago, Daniel2 said:

I would assume I already know the answer to this question, but do you believe they should legally be allowed to pay for someone else to have the baby for them (presuming, of course, the woman is in full agreement with the terms of the contract), just as other non-fertile couples can?

If hetro couples can do it...of course!!

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I think the Judge had to deny it based on the law, but the law is unconstitutional so it will likely be removed.

There is a distaste for surrogacy among the Utahns I know based on "buying a baby".  I am not surprised the law was written to allow it only for a medical reason rather than convenience (the mother doesn't want to get pregnant because of career, distaste towards the experience of pregnancy, or something else).  If they wanted to keep that condition they just have to remove the maternal specific condition and make it parental as not being female and therefore can't become pregnant  could be interpreted as a medical issue.

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Where same sex marriage is legal, and surrogacy is legal, the judge has zero grounds for ruling against a male same sex couple utilising surrogacy as a means of having a family.

“That’s because under the law a married couple is required to provide medical evidence that the intended “mother” is medically unable to carry a child.”

In this case the ‘mother’ is male, so I’d suggest it’s blatantly obvious that the intended mother is medically unable to carry a child.

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2 hours ago, thesometimesaint said:

Legally I think they can do whatever they want in regards to having a family. Biologically is a different question. They are paying someone to have the baby for them.

Is the issue that straight couples can have a surrogate, but gay couples cannot?  Is that fair?  Or, is it that surrogacy is allowed only in cases of medical need?

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1 hour ago, Marginal Gains said:

Where same sex marriage is legal, and surrogacy is legal, the judge has zero grounds for ruling against a male same sex couple utilising surrogacy as a means of having a family.

“That’s because under the law a married couple is required to provide medical evidence that the intended “mother” is medically unable to carry a child.”

In this case the ‘mother’ is male, so I’d suggest it’s blatantly obvious that the intended mother is medically unable to carry a child.

The judge had grounds to deny based on the law, which was created I suspect before same sex couples were a legal entity and possibly before single parents were allowed to adopt.  Unless he wants to ignore the law, I don't see how he can rule otherwise, but I am not a lawyer.  The law itself may be groundless (I think that is the reasonable interpretation), but I don't know if that judge had the legal right to ignore the law on that basis.  I don't know if there are limited ways for judges to declare a law void and only certain judges can do so or if it can occur at anytime with any judge (hope the former, but TV dramas make it appear the latter). Makes more sense to me for a lawsuit or a petition be made to lawmakers to change the law rather than the judge be making that decision in that case.  But then I like things to be done in an orderly fashion, something that can be hard on those waiting for the changes to take place.

Society doesn't assign "motherhood" to one of the male partners.  It describes it as having two fathers.  It would be ridiculous to suggest that the parent who doesn't contribute sperm automatically becomes a mother just because children must have a biological mother and father.

It is better to change the language of the law to "parent" rather than try to legally justify a male is a mother.  I assume that would be easy to do, but then again not a lawyer.

Edited by Calm

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1 hour ago, Calm said:

There is a distaste for surrogacy among the Utahns I know based on "buying a baby". 

There is also a distaste for surrogacy because it is against Church policy (it's in the back of handbook one under policies, along with abortion and policies on in vitro and artificial insemination). 

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24 minutes ago, Calm said:

The judge had grounds to deny based on the law, which was created I suspect before same sex couples were a legal entity and possibly before single parents were allowed to adopt.  Unless he wants to ignore the law, I don't see how he can rule otherwise, but I am not a lawyer.  The law itself may be groundless (I think that is the reasonable interpretation), but I don't know if that judge had the legal right to ignore the law on that basis.  I don't know if there are limited ways for judges to declare a law void and only certain judges can do so or if it can occur at anytime with any judge (hope the former, but TV dramas make it appear the latter). Makes more sense to me for a lawsuit or a petition be made to lawmakers to change the law rather than the judge be making that decision in that case.  But then I like things to be done in an orderly fashion, something that can be hard on those waiting for the changes to take place.

Society doesn't assign "motherhood" to one of the male partners.  It describes it as having two fathers.  It would be ridiculous to suggest that the parent who doesn't contribute sperm automatically becomes a mother just because children must have a biological mother and father.

It is better to change the language of the law to "parent" rather than try to legally justify a male is a mother.  I assume that would be easy to do, but then again not a lawyer.

My view would be that Society (unlike the law) doesn’t get a say. If one of the male partners determines that they will play the maternal role, then society will just need to accept them fulfilling the function of ‘mother’.

For instance, in a single parent family the sole parent acts as both mother and father.

Edited by Marginal Gains

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19 minutes ago, Calm said:

The judge had grounds to deny based on the law, which was created I suspect before same sex couples were a legal entity and possibly before single parents were allowed to adopt.  Unless he wants to ignore the law, I don't see how he can rule otherwise, but I am not a lawyer.  The law itself may be groundless (I think that is the reasonable interpretation), but I don't know if that judge had the legal right to ignore the law on that basis.  I don't know if there are limited ways for judges to declare a law void or if it can occur at anytime.  Makes more sense to me for a lawsuit or a petition be made to lawmakers to change the law rather than the judge be making that decision in that case.  But then I like things to be done in an orderly fashion, something that can be hard on those waiting for the changes to take place.

Society doesn't assign "motherhood" to one of the male partners.  It describes it as having two fathers.  It would be ridiculous to suggest that the parent who doesn't contribute sperm automatically becomes a mother just because children must have a biological mother and father.

It is better to change the language of the law to "parent" rather than try to legally justify a male is a mother.  I assume that would be easy to do, but then again not a lawyer.

It is not uncommon for a judge to rule a law passed by the legislation to be unconstitutional.  That is one of the primary role of the judicial branch of our government.  They protect the people from passing laws that deny them their constitutional rights.  I don't think however that a judge can adjust a law to say "parent".   The legislature would have to repass a law that changes the wording to make the law constitutional.  And that is something the legislature could do prior to a judicial ruling.  

But then again, I am also not a lawyer.

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2 hours ago, rpn said:

I find the case interesting.   But I think a state could have a different interest in making same sex couples parents on the basis that creating families without a mother and a father doesn't provide children all of what they need.  In my perfect world, the only times same sex couples would be able to adopt is when the kid's needs for existing bonds outweighed their right to live in a home with a mother and a father.   So if they couldn't find a suitable opposite sex couple, then single parents or same sex parents could adopt.   But if there was some familial relationship that meant for these specific children the same sex couple were the most appropriate choice, then same sex adoption would be allowed.   I think states should be allowed to assert their interest in having all children in homes/families with mother and a father, to the extent that is possible.

I've often wondered what will happen when a state approves a child from foster care being adopted by a same sex couple and the child sues for neglect or even intentional harm when they reach majority, not because their same sex parents were bad or awful to them, but because the state refused to recognize that both a mom and a dad are a superior choice for development of a child, absent some specific reason that isn't so for a particular child (for instance a foster child who has been abused by one sex, might fare better in an adoptive home with two parents of the other gender).

I think this whole father/mother scenario is nonsense.  Can anyone name one attribute or life lesson that only a father or a mother could teach?

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4 hours ago, Daniel2 said:

Utah legislation is back in the news as another battleground regarding civil rights related to marriage between gay men.  The Salt Lake Tribune reports:

Daniel, I see in the title of the thread that you also included "Colorado Baker Heads to SCOTUS".  Is there news regarding that today as well?

I'll also search and see what I can find....thanks.

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4 hours ago, ALarson said:

Good for them!  I believe this law will be declared unconstitutional and it should be.

This will be interesting to follow.  Thanks for posting about it, Daniel.

I agree and its nice to see the attorney general's office agrees as well.  Seems like a no brainer.  Thanks for the post! 

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49 minutes ago, rongo said:

There is also a distaste for surrogacy because it is against Church policy (it's in the back of handbook one under policies, along with abortion and policies on in vitro and artificial insemination). 

It is still against church policy in the current handbook, can anyone confirm this?  It sounds like an old/out of date policy that needs to be updated if it hasn't been already.  

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19 minutes ago, california boy said:

I think this whole father/mother scenario is nonsense.  Can anyone name one attribute or life lesson that only a father or a mother could teach?

I don't think it's about teaching a specific attribute, but more about how men and women see and interact with the world differently and how kids need both influences in their life. 

Katy Faust (no relation and not lds) grew up in a very loving lesbian home with her biological mother and her mother's partner, had a happy childhood, and this is what she has to say about same sex family structure-

"Now we are normalizing a family structure where a child will always be deprived daily of one gender influence and the relationship with at least one natural parent,” she explains, “Our cultural narrative becomes one that, in essence, tells children that they have no right to the natural family structure or their biological parents, but that children simply exist for the satisfaction of adult desires.”

This is what Heather Barwick, who was also raised in a very loving home by her mother and her mother's partner, has to say about the need for both a mother and a father-

‘Same-sex marriage and parenting withholds either a mother or father from a child while telling him or her that it doesn’t matter. That it’s all the same. But it’s not.  A lot of us, a lot of your kids, are hurting. My father’s absence created a huge hole in me, and I ached every day for a dad. I loved my mom’s partner, but another mom could never have replaced the father I lost.’

I don't think their concerns (which have been mirrored by other adult children raised by gay or lesbian parents) are nonsense.  

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 Hi, Alarson, yes there is news about masterpiece bakery, but for some reason every time I keep trying to post the article, the site isn't excepting it. I will try it from a different device when I get home.  I decided to combine the two topics instead of starting multiple LGBT threads. 

Basically, the Supreme Court announced in June of this year they would hear the Masterpiece Bakery case.

This week, the Trump's Department of Justice just filed a brief in support of the bakery, indicating its belief that business should be allowed to decline goods and services for same-sex weddings and claiming that sexual orientation should be treated differently than race, gender, or religious preference.

See here: https://mobile.nytimes.com/2017/07/27/nyregion/justice-department-gays-workplace.html (this was a previous filing... I'll post the other shortly)

 

 

 

Edited by Daniel2

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44 minutes ago, hope_for_things said:

It is still against church policy in the current handbook, can anyone confirm this?  It sounds like an old/out of date policy that needs to be updated if it hasn't been already.  

17.3.16

Surrogate Motherhood

The Church strongly discourages surrogate motherhood. However, this is a personal matter that ultimately must be left to the judgment of the husband and wife. Responsibility for the decision rests solely upon them.

If parents want a child who was born to a surrogate mother to be sealed to them, the stake president refers the matter to the Office of the First Presidency.

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32 minutes ago, Daniel2 said:

 Hi, Alarson, yes there is news about masterpiece bakery, but for some reason every time I keep trying to post the article, the site isn't excepting it. I will try it from a different device when I get home.  I decided to combine the two topics instead of starting multiple LGBT threads. 

Basically, the Supreme Court announced in June of this year they would hear the Masterpiece Bakery case.

This week, the Trump's Department of Justice just filed a brief in support of the bakery, indicating its belief that business should be allowed to decline goods and services for same-sex weddings and claiming that sexual orientation should be treated differently than race, gender, or religious preference.

See here: https://mobile.nytimes.com/2017/07/27/nyregion/justice-department-gays-workplace.html (this was a previous filing... I'll post the other shortly)

 

 

 

Here's another article on the same subject. It's from U.S. News and World Report.

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Let's see if this one works...  sorry for the messy formating. I'm not sure why I'm having so much difficulty with the site's formating features lately...

Justice Dept Sides Against Same-Sex Couple

The brief says baking wedding cakes are a form of expression, and that trumps protecting equal rights for same-sex couples.

By Joseph P. Williams, Staff Writer  |Sept. 8, 2017, at 4:35 p.m. 

 
usn-logo-large.svg
Justice Dept Sides Against Same-Sex Couple 

For the second time in two months, the Justice Department has weighed in on a major civil rights court case, siding with those accused of discriminating against gays and lesbians -- and unequivocally staking out the Trump Administration's position on equal treatment of same-sex couples. 

The department on Thursday filed papers in the Supreme Court to support Jack Phillips, a Colorado baker who was sued for refusing to make a wedding cake for a same-sex couple. Justice attorneys agreed that Phillips' cakes are a form of expression, and that the court can't compel him to use it because his religion eschews gay marriage.

"When Phillips designs and creates a custom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual, and he associates himself with the celebratory message conveyed," Acting Solicitor General Jeffrey B. Wall wrote in the brief. Forcing Phillips to do just that for a same-sex couple, he argued, "violates his sincerely held religious beliefs [and invalidates] his First Amendment rights."


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Phillips is the plaintiff in Masterpiece Cakeshop v. Civil Rights Commission of Colorado, a marquee Supreme Court case in which the Denver baker is accused of discrimination. The case is widely seen as a key test of civil-rights advances for gays and lesbians, and it's on the docket for the Supreme Court term which starts in October. 

But the move is seen as evidence that President Donald Trump -- who has made a priority of rolling back several of former President Barack Obama's signature initiatives -- has put Obama-era legal protections for gays and lesbians on his hit list.

 

"The Department of Justice has twice now weighed in on cases related to sexual orientation-based discrimination and both times has made clear that they do not believe lesbian, gay and bisexual people are protected under civil rights law," says Laura Durso, vice president of the LGBT Research and Communications Project Center at Center for American Progress, a left-leaning think tank. 

 

Without specific federal laws to protect it from discrimination, "this administration can do significant damage to the LGBTQ community across all areas of life – employment, housing, healthcare, education, and more," Durso says. 

The case centers on Phillips, who refused to bake a wedding cake for two men who were married in Massachusetts but wanted to hold a reception for friends and family in Colorado. The case pits the couple's right to protection against discrimination -- a major front in the gay-rights fight for equality -- against Phillips' right to refuse to provide a service for an event that his religion deems objectionable. 

In August the Justice Department weighed in on another big gay-rights case. They declared that a skydiving company was within its rights to fire Donald Zarda, a gay instructor who sued his employer for discrimination after he was terminated. 


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In its brief, the department said that Zarda's claim -- that he was sacked after a skydiving client learned of his sexual orientation -- is moot because Title VII of the Civil Rights Act of 1964 does not cover "employment discrimination based on sexual orientation." The law, the government said, only prohibits employment discrimination based on race, color, religion, sex and national origin.

According to the brief, "The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts." 

 

In the Masterpiece Cakeshop case, conservatives believe the government should come to Phillips' defense. Phillips and others see the case in fundamental First Amendment terms and believe the baker's right to express himself and his religion supercede the right of the same-sex couple to be treated equally.

"I never thought the government would try to take away my freedoms and force me to create something that goes against my morals," Phillips told Fox News on Thursday.

Sen. Mike Lee, a Utah Republican concurred. Also appearing on Fox News, he called it a "freedom of expression case" that "extends far more broadly than a religious liberty case."

"What matters is how our laws can be brought to bear against those who believe," Lee said. "The government cannot force you to speak where you would choose to remain silent. These are foundational pillars of the Constitution."


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But Durso and other gay-rights organizations who sounded the red alert when Sessions, a former Alabama senator with deeply conservative views, became the nation's top law-enforcement officer, said the amicus briefs prove their worst predictions about Sessions are coming true. 

Sessions, they say, is using the power of the government to knock down or hollow out the legal protections for gays and lesbians he's supposed to enforce.

"It is always significant when the federal government weighs in on cases" and the Department of Justice's briefs "show a clear misunderstanding of what religious freedom is," Durso says. Businesses that open themselves to the public, she adds, "need to serve everyone on equal footing. Business owners are free to hold any number of religious beliefs, but they cannot pick and choose who they serve."

 

The Masterpiece Cakeshop case "is particularly significant because a ruling against the couple could put in jeopardy nondiscrimination laws across the country," impacting minorities and other marginalized people, Durso says. "This is not simply about cakes – it is about whether any business can turn someone away just because of who they are."

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      https://speeches.byu.edu/talks/bruce-r-mcconkie_three-pillars-eternity/
       
      That’s classic Mormon doctrine and is absolutely central.
       
      Here is a quote from the book Straight Answers to Tough Gospel Questions by Joseph Fielding McConkie:
       
      Q: Is the theory of evolution compatible with the doctrine of the Fall?

      A: No. We can tug, twist, contort, and sell our birthright, but we cannot overcome the irreconcilable differences between the theory of organic evolution and the doctrine of the Fall.
       
      This is of course true, and is supported by multiple books of scripture, the temple ceremony, and multiple generations of latter-day Prophets.  Despite all of that, thanks to our modern sensibilities 84.26% agree that Mormons can believe in evolution.
       
      So if Mormon doctrine can evolve enough to make room for organic evolution, why can’t it evolve in a way that makes room for same-sex families?  The change to the core doctrine to make room for evolution is by far the more drastic.
    • By Coreyb
        I really don't have any doubt that in the future the LDS church will change its policy regarding same sex marriage. I am sure that will be disputed by many, and thats fine, just start a new thread on it. If I, and others, are right about this,I think allowing Gay couples to fully participate in the Sunday experience will be relatively easy to do. The real question becomes, is there ANY WAY to fit homosexual marriage into a traditional(ish) Mormon exaltation theology, or will it have to be discarded to accommodate, should this prediction come true?  I am a strong believer in exaltation, but I also am fairly convinced that for many individuals, there is no way they will be happy or whole with a spouse of the opposite gender. Your serious thoughts on this are appreciated...
    • By DJBrown
      I have been interested in this question for quite some time.  Does reading the Book of Mormon affect whether a person supports same-sex marriage?  
       
      I will state up front that I believe there is a link between these two things- reading the Book of Mormon and not supporting same-sex marriage.  I ask for your honesty in this poll.
       
      Update- sorry.  I changed the poll because I realized that I could not capture any correlation or lack thereof between reading the Book of Mormon and support of same-sex marriage.  Should have seen that before.  Sorry.
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