What If Prop 8 Is Ruled Unconstitutional By The Supreme Court? How Do We As Lds Reconcile Some Of The Implications That Would Result?

[Bikeemikey]

*** This is not a thread either discussing politics or homosexuality ***

From another thread Wenglund made the following comments regarding the content in this opening post.

To minimize my contrabution to this thread derailment, let me simply and briefly state that were the Supreme Court to eventually rule as you suppose (which is debatable), I for one wouldn't view things in the overly narrow and bifurcate way that you pigeon-holed not just LDS supporters of Prop 8, but Prop 8 supporters in general. Even before the fact, you are putting words into my mouth that I would not say. This violates the conventions of critical thought in a number of ways. Logic and courtesy would advise waiting to see what the Supreme Court does and then let each side speak for themselves.

Thanks, -Wade Englund-

United States LDS, more than any other group in the US, have a divine belief in the constitution and many also have the belief that that the constitution or the principles of the constitution is being/going to be will destroyed/hang by a thread.

As such, whenever LDS engage in political debate/engagement we seem to always bring it back to protecting the constitution (for this reason constitutional conversation is religiously heightened for LDS). Most Mormons I have talked with on prop 8 talk about how constitutional values are being eroded by the courts siding against the "will of the people".

A few basic assumptions:

The purpose of the Supreme Court is to ensure the constitution is enacted..

They only time the Supreme Court would rule against the will of the people is of the people are demanding unconstitutional changes.

Such changes would be against the fabric of freedom.

If prop 8 is found by the Supreme Court to be unconstitutional the LDS have a choice, they will have to admit they were/are fighting against freedom and the constitution, or they will create an understanding of the US legal context that says the Supreme Court is "fallen".

My question to LDS on this board (myself included) is as follows:

How would we attempt to resolve the tension I have presented above. Would we either admit we have been acting against the principles of the constitution & freedom, would we proclaim the supreme court as fallen (as per bluebells post fallen may be interpreted to simply mean wrong), or would we (as wenglund suggested) find another way of managing this tension?

How would/will you respond?

Edited October 4, 2012 by Bikeemikey

[Bill “Papa” Lee]

Leave America as we did before it's last Constitutional crisis. Or remain and defy.

[wenglund]

Since you conveniently neglected to provide the context for this discussion, let me do so for you:

In the other thread, Arbiter had stated: "The Church went all in to defeat Prop 8 in California. You guys okay with that?"

To which Bikeemikey responded: "Those efforts will likely be deemed unconstitutional in the next few months. Those engaged in the pro prop 8 campaign can then face the music as to whether they were violating their beloved constitution and attempting to usurp via the tyranny of the majority the freedoms of other Americans; or they can claim that a majority conservative Supreme Court is the embodiment of the destruction of American constitutional freedom."

I then replied: "This is well poisoning using conjecture and propped up straw men. In short, it is gay propaganda."

With that context now in place, in my next post I will address several elements of the OP.

Thanks, -Wade Englund-

Edited October 4, 2012 by wenglund

[bluebell]

Historically, the Supreme court has behaved unconstitutionally in the past (don't ask me for a reference as i don't remember-the hazards of talking muliple history courses at one time-but if i'm remembering right it was around the time of Andrew Jackson, or, maybe, right before the civil war), so there is precendent that it could happen again.

In the end though, if prop 8 is overturned, i think most LDS would believe that they were fighting against a faulty interpretation of the constitution (and not the consitution itself, as you assumed), which the supreme court decided to uphold. That wouldn't mean the SC was 'fallen', just wrong (which is not really a dilemma in its own right because it's common place for people of every belief system to disagree with the justice system on occassion).

The tension, in my opinion, wouldn't be between LDS and the constitution, but would continue to be between those who think the court system got it right and those who think it got it wrong.

Edited October 4, 2012 by bluebell

[blackstrap]

The supreme court interprets the constitution. It has ,on occasion, interpreted the constitution to be .... unconstitutional, or at least that it does not say what we think it says.

Edited October 4, 2012 by blackstrap

[Bikeemikey]

Since you conveniently neglected to provide the context for this discussion, let me do so for you:

In the other thread, Arbiter had stated: "The Church went all in to defeat Prop 8 in California. You guys okay with that?"

To which Bikeemikey responded: "Those efforts will likely be deemed unconstitutional in the next few months. Those engaged in the pro prop 8 campaign can then face the music as to whether they were violating their beloved constitution and attempting to usurp via the tyranny of the majority the freedoms of other Americans; or they can claim that a majority conservative Supreme Court is the embodiment of the destruction of American constitutional freedom."

I then replied: "This is well poisoning using conjecture and propped up straw men. In short, it is gay propaganda."

With that context now in place, in my next post I will address several elements of the OP.

Thanks, -Wade Englund-

Thanks for the additional context... I didn't want the opening post to get to long but I am happy you included it. Perhaps this additional context will help people think about their response to the question posed in the opening post.

Cheers.

[KevinG]

Like many other areas of Law I would conclude that the Supreme Court of the United States does not always follow God's will in making law. Short of the Church being required to solemnize marriages in our Temples that are not predicated on our standards of Temple worthiness I would allow others to believe and worship as they desire.

I would also continue to advocate that using marriage of any type (a religious concept) to define how government benefits and rights are given is a bad idea and the source of these debates.

[Saints Alive]

United States LDS, more than any other group in the US, have a divine belief in the constitution and many also have the belief that that the constitution or the principles of the constitution is being/going to be will destroyed/hang by a thread.

not quite... we believe the constitution was written by divinely inspired men. A bit of a difference from what you say.

A few basic assumptions:

The purpose of the Supreme Court is to ensure the constitution is enacted..

WRONG! the supreme court INTERPRETS the constitution, the President ENFORCES the constitution, and Congress ENACTS the constitution.

They only time the Supreme Court would rule against the will of the people is of the people are demanding unconstitutional changes.

Such changes would be against the fabric of freedom.

If prop 8 is found by the Supreme Court to be unconstitutional the LDS have a choice, they will have to admit they were/are fighting against freedom and the constitution, or they will create an understanding of the US legal context that says the Supreme Court is "fallen".

the supreme court is not infallible... their decisions can and have been overturned.

My question to LDS on this board (myself included) is as follows:

How would we attempt to resolve the tension I have presented above. Would we either admit we have been acting against the principles of the constitution & freedom, would we proclaim the supreme court as fallen, or would we (as wenglund suggested) find another way of managing this tension?

How would/will you respond?

I think each individual would find their own way to rationalize their own cognitive dissonance. I think some would take each route. I personally would think that the supreme court made a bad decision.

[Saints Alive]

I would also continue to advocate that using marriage of any type (a religious concept) to define how government benefits and rights are given is a bad idea and the source of these debates.

AMEN! AMEN! AMEN!!!! :clapping:

I am all in favor for: domestic contracts of support, civil unions, or any other non marriage contract the bureaucracy can come up with but let each individual church define marriage.

[thesometimesaint]

Such a decision as that would have little effect on the USA LDS. We simply state that it is our belief the marriage is between a man and a woman, and let it go at that.

[Bikeemikey]

Like many other areas of Law I would conclude that the Supreme Court of the United States does not always follow God's will in making law. Short of the Church being required to solemnize marriages in our Temples that are not predicated on our standards of Temple worthiness I would allow others to believe and worship as they desire.

I would also continue to advocate that using marriage of any type (a religious concept) to define how government benefits and rights are given is a bad idea and the source of these debates.

I agree with this. It seems obvious that this is not the dominant perspective from LDS in the USA though, or am I not correct in this assumption?

[Bikeemikey]

Such a decision as that would have little effect on the USA LDS. We simply state that it is our belief the marriage is between a man and a woman, and let it go at that.

So the idea of the Church actively fundraising millions of dollars and spending thousands of hours of effort on an agenda that is unconstitutional/against the principles of freedom is not a big deal? Or a decision against Prop 8 by the supreme court would not mean that?

Cheers.

[Bikeemikey]

Historically, the Supreme court has behaved unconstitutionally in the past (don't ask me for a reference as i don't remember-the hazards of talking muliple history courses at one time-but if i'm remembering right it was around the time of Andrew Jackson, or, maybe, right before the civil war), so there is precendent that it could happen again.

In the end though, if prop 8 is overturned, i think most LDS would believe that they were fighting against a faulty interpretation of the constitution (and not the consitution itself, as you assumed), which the supreme court decided to uphold. That wouldn't mean the SC was 'fallen', just wrong (which is not really a dilemma in its own right because it's common place for people of every belief system to disagree with the justice system on occassion).

The tension, in my opinion, wouldn't be between LDS and the constitution, but would continue to be between those who think the court system got it right and those who think it got it wrong.

I have edited the opening post to include fallen as meaning simply wrong. Thanks.

[Bikeemikey]

not quite... we believe the constitution was written by divinely inspired men. A bit of a difference from what you say.

WRONG! the supreme court INTERPRETS the constitution, the President ENFORCES the constitution, and Congress ENACTS the constitution.

the supreme court is not infallible... their decisions can and have been overturned.

I think each individual would find their own way to rationalize their own cognitive dissonance. I think some would take each route. I personally would think that the supreme court made a bad decision.

Thanks for the response.

Your corrections are noted. I am using the idea of Supreme Court's power over enacting law in the negative sense. That is they are responsible to making sure unconstituional legislation is not enacted by Congress, though this seems to always be an after the fact role.

Otherwise I accept your corrections.

[Darren10]

My view is that the mere fact that Prop 8 is headed tothe Supreme Court that the US Constitution has been violated. No matter what the Supreme Court ruling is, for or against my opinion, it won't change the fact that as far as I can tell the people of California spoke and excercised their state constitutional rights to enact Prop 8 for their state. The federal governmnet had no business to interfere with this decision in the first place. Judge Vaughn Walker overruled Prop 8 declaring that homosexuals desiring to marry would have their right to due process taken away. He also declared that the arguments used to support Prop 8 were archaic and out of date. Thus it is now going ot the US Supreme Court. A matter of simply excercising individual rights in one's state has become an issue of the federal government dicatating tothe states what they can and cannot vote on. There is no constitutional basis for ruling against Prop 8 as far as I'm concerned.

The LDS church has a long history of respecting the Suopreme Court's final word on legal matters. As far as the Church goes, they'll probably abide by the court's ruilng no matter what side their ruling falls on. As for me, as a voting citizen, I'm staunchly against ruling against Prop 8.

[Cobalt-70]

If prop 8 is found by the Supreme Court to be unconstitutional the LDS have a choice, they will have to admit they were/are fighting against freedom and the constitution, or they will create an understanding of the US legal context that says the Supreme Court is "fallen".

...

My question to LDS on this board (myself included) is as follows:

How would we attempt to resolve the tension I have presented above. Would we either admit we have been acting against the principles of the constitution & freedom, would we proclaim the supreme court as fallen, or would we (as wenglund suggested) find another way of managing this tension?

As a result of Marbury v. Madison, constitutional law is defined by the Supreme Court. From a religious perspective, I fully support the Marbury decision. It was written during the founding generation of this country, and I fully believe that John Marshall, Chief Justice at the time, was one of the founding fathers and that he was every bit as inspired by God in this particular decision (and others of the major founding Supreme Court cases) as were people like Thomas Jefferson, James Madison, and Alexander Hamilton.

That said, we should never expect that the Supreme Court is always correct as a matter of law. Indeed, the Supreme Court has gotten it very wrong in the past (e.g, Dred Scott, Citizens United, imho), and I am quite often not satisfied by particular Constitutional interpretations by the present conservative bloc of the Court. The Supreme Court has free rein to interpret the Constitiution, and their decision is absolutely binding as a matter of law in the United States. I think the concept of judicial review is one of the inspired constitutional principles lauded by Joseph Smith and others.

That does not mean that Mormons must agree with every constitutional interpretation by the Supreme Court, but we must respect that the Supreme Court by design has that stewardship under the constitution. And when the Supreme Court interprets the constitution, that interpretation is binding upon Mormons as a matter of law. Mormons are (except in legitimate civil disobedience) bound to follow the law.

In the case of Proposition 8, if the Supreme Court were to uphold the 9th Curcuit's overturning of this law based on the Due Process or Equal Protection clauses of the constitution, then there is not much that Mormons can do. And it will not really affect Mormons, anyway. Mormons are not clamoring to get gay-married. So Mormons will just go back to their jobs and church callings, and nothing really will change. If they want to vote for candidates that will amend the U.S. Constitution to specifically allow discrimination against gay people, then that is their right. And they can always vote for President who will appoint anti-marriage-equality justices to the Supreme Court. That is also their right. But other than that, what else is there for a Mormon to do?

Edited October 4, 2012 by Cobalt-70

[wenglund]

United States LDS, more than any other group in the US, have a divine belief in the constitution and many also have the belief that that the constitution or the principles of the constitution is being/going to be will destroyed/hang by a thread.

Be that as it may, I personally have never mentioned that alleged prophesy in relation to the Prop 8 debate. At the very most I have suggested that certain liberal court decisions were a function of judicial fiat and legislating from the bench that oversteps the constitutional bounds of separation of powers. And, while I object to this practice, and disagreed with the rulings, I didn't consider them to be anywhere close to causing the Constitution to hang by a thread.

As such, whenever LDS engage in political debate/engagement we seem to always bring it back to protecting the constitution (for this reason constitutional conversation is religiously heightened for LDS).

But, I haven't done this in relation to the Prop 8 debate, and to my knowledge, no one else has either on this board. You are propping up a straw man.

Most Mormons I have talked with on prop 8 talk about how constitutional values are being eroded by the courts siding against the "will of the people".

Again, that isn't what I have argued. To me, as indicated above, the issue isn't so much that the courts siding against the "will of the people," but rather how it is that the courts went about siding against the "will of the people."

A few basic assumptions:

The purpose of the Supreme Court is to ensure the constitution is enacted.

Actually, the purpose of the Supreme Court is to judge whether laws that are enacted comply with the Constitution as the Court interprets it.

They only time the Supreme Court would rule against the will of the people is if the people are demanding unconstitutional changes.

Such changes would be against the fabric of freedom.

Not in the case of Prop 8--which isn't about freedom, but about selectively extending state sanctions to homosexual couples.

If prop 8 is found by the Supreme Court to be unconstitutional, the LDS have a choice, they will have to admit they were/are fighting against freedom and the constitution, or they will create an understanding of the US legal context that says the Supreme Court is "fallen".

In my case, this is a false dichotomy. I have other choices--not the least of which is to disagree with the Court's ruling and respect their decision.

And, even were I to think the Supreme Court is "fallen" (whatever that is supposed to mean), I certainly wouldn't consider this decision as rendering the Constitution hanging by a thread.

My question to LDS on this board (myself included) is as follows: How would we attempt to resolve the tension I have presented above. Would we either admit we have been acting against the principles of the constitution & freedom, would we proclaim the supreme court as fallen, or would we (as wenglund suggested) find another way of managing this tension?

Or, would we point out that you have yet to accurately frame the supposed tension and have instead propped up a straw man?

You have failed to demonstrate that you have enough of a grasp of the issue to accurately state your own position, let alone presume to speak for LDS.

Thanks, -Wade Englund-

[Cobalt-70]

My view is that the mere fact that Prop 8 is headed tothe Supreme Court that the US Constitution has been violated. No matter what the Supreme Court ruling is, for or against my opinion, it won't change the fact that as far as I can tell the people of California spoke and excercised their state constitutional rights to enact Prop 8 for their state. The federal governmnet had no business to interfere with this decision in the first place. Judge Vaughn Walker overruled Prop 8 declaring that homosexuals desiring to marry would have their right to due process taken away. He also declared that the arguments used to support Prop 8 were archaic and out of date. Thus it is now going ot the US Supreme Court. A matter of simply excercising individual rights in one's state has become an issue of the federal government dicatating tothe states what they can and cannot vote on. There is no constitutional basis for ruling against Prop 8 as far as I'm concerned.

It sounds like you disagree with the Supremacy Clause of the U.S. Constitution. Do you think that part was uninspired? It says that federal law, and particularly the U.S. Constitution, trumps state law and state constitutions. So under the U.S. Constitution, it is irrelevant that "the people of California have spoken" in a way that (according to the 9th Circuit and possibly the Supreme Court) violates the 14th Amendment of the U.S. Constitution.

[RobertAC]

I tend to agree with Bluebell. Faulty interpretations by the Supreme Court are nothing new. I am sure most churches who oppose same sex marriage will handle the news in the same way as they did with Roe v. Wade. The disagreed with it, but recognized that it was the law of the U.S.

[Damien the Leper]

American religious practitioners and their ethics and moralism is of no concern or consequence to the Constitution or the Supreme Court. Religious moralism is not the standard by which laws that are created to protect the rights, liberties and life are enacted. The Constitution protects religious practioners to the extent that they may lawfully practice their religion. This country is a Democracy and not in any way meant to be theocratically shaped and governed. All non-believers have the right to live their lives without influence of religious institutions.

If the Supreme Court rules against Prop 8, then religions will go on as they have. They'll survive...no harm, no foul.

[thesometimesaint]

So the idea of the Church actively fundraising millions of dollars and spending thousands of hours of effort on an agenda that is unconstitutional/against the principles of freedom is not a big deal? Or a decision against Prop 8 by the supreme court would not mean that?

Cheers.

The Church did no such thing. Individual LDS members are free to contribute or not contribute to any political cause as they so choose. The principles of freedom have nothing to do with prop 8. California already has Domestic Partnerships, the functional equivalent to marriage with all of its rights, responsibilities, duties, and privileges. So all the claptrap against Prop 8 was just over what to call marriage without any legal consequences.

[Gillebre]

So the idea of the Church actively fundraising millions of dollars and spending thousands of hours of effort on an agenda that is unconstitutional/against the principles of freedom is not a big deal? Or a decision against Prop 8 by the supreme court would not mean that?

Cheers.

My reply is based on the unlikely (imo) hypothetical that the Supreme Court will declare prop 8 unconstitutional.

Just because the Supreme Court strikes the proposition down does not mean that the Church's (and by extension, the Prophet's and Q of the 12's) decision to support the holy institution of marriage was wrong. If you think that because we believe the Constitution to be divinely inspired, we have violated our beliefs because a council of men and women said that "The Constitution in our day means we can't discriminate against gays and must allow them to marry", you are sorely mistaken, imho.

The Lord, through His mouthpiece, declares to the world that the divine institution of marriage (between man and woman) is ordained of God, and men say, "Sorry Lord, you're WRONG. You can't give heterosexual couples marriage and not extend it to gay couples as well. You're being a bigot!"

and you're saying (correct me if i'm wrong) that LDS might feel guilty because men contradicted their beliefs? not gonna happen.

it almost strikes me as some kind of way to try and catch LDS and sow disbelief among them. 'hey look, the supreme court said that the prophet of God was WRONG to support marriage as between a man and woman. guess you should rethink your religious beliefs.'

EDIT: yeah, what TSS said.

Edited October 4, 2012 by Gillebre

[Walden]

My view is that the mere fact that Prop 8 is headed tothe Supreme Court that the US Constitution has been violated. No matter what the Supreme Court ruling is, for or against my opinion, it won't change the fact that as far as I can tell the people of California spoke and excercised their state constitutional rights to enact Prop 8 for their state. The federal governmnet had no business to interfere with this decision in the first place. Judge Vaughn Walker overruled Prop 8 declaring that homosexuals desiring to marry would have their right to due process taken away. He also declared that the arguments used to support Prop 8 were archaic and out of date. Thus it is now going ot the US Supreme Court. A matter of simply excercising individual rights in one's state has become an issue of the federal government dicatating tothe states what they can and cannot vote on. There is no constitutional basis for ruling against Prop 8 as far as I'm concerned.

The LDS church has a long history of respecting the Suopreme Court's final word on legal matters. As far as the Church goes, they'll probably abide by the court's ruilng no matter what side their ruling falls on. As for me, as a voting citizen, I'm staunchly against ruling against Prop 8.

I would suggest that you read some of the founding fathers thoughts (those "divinely inspired" men) on the tyranny of the majority, especially the concerns that both John Adams and James Madison had regarding their fears for such tyranny, and their hopes that a representative republic with distinct branches of power might alleviate the opportunity for the tyranny of the masses to run roughshod over the rights and liberties of the minority.

The US Constitution was not only written to ensure that the tyranny of the few does not infringe upon the rights and liberties of the masses, but also to protect the rights of the few from the tyranny of the masses.

If there was no concern for the tyranny of the masses, I am sure that the founding fathers would have implemented a direct democracy (as you seem to favor) instead of a democratic republic, which most mormons consider to be "divinely inspired."

[Bill “Papa” Lee]

The Church did no such thing. Individual LDS members are free to contribute or not contribute to any political cause as they so choose. The principles of freedom have nothing to do with prop 8. California already has Domestic Partnerships, the functional equivalent to marriage with all of its rights, responsibilities, duties, and privileges. So all the claptrap against Prop 8 was just over what to call marriage without any legal consequences.

It is odd that so many have come to view the entire issue as LDS Church and Prop 8...How did anyone arrive here? You are correct the "Church" did no such thing.

[Damien the Leper]

It is odd that so many have come to view the entire issue as LDS Church and Prop 8...How did anyone arrive here? You are correct the "Church" did no such thing.

And the church should have no influence whatsoever in state and federal issues. That would be exceeding their purpose. The church should not send out letters to stakes and wards encouraging members to donate time, money or effort to political causes. Nor should the church unrighteously use members tithing money to in any way support political lobbying or causes. It is unnecessary to advise or give counsel members on voting or politicking in favor of church morals and ethics.