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

[Cobalt-70]

How dedicated is the LDS church to the American constitution? I find it interesting that America is the "leader" of the free world yet the democratic world chooses the British parliamentary model to follow, not the American constitution.

If the American constitution were thrown out in a revolution a couple of hundred years from now, would that cause a theological crisis in the LDS church?

Joseph Smith always spoke about constitutional "principles," and not so much the constitution as a whole. And by that, he mainly meant the principles enshrined in the Bill of Rights, most importantly the 1st Amendment, but probably also including due process, equal protection, and the property and privacy protections of the 4th and 5th amendments. These principles are not unique to the United States, but the U.S. was the first country to put these ideas together in a written constitution, and that is what I think is the stroke of inspiration.

As for the other parts of the U.S. Constitution, I don't think Mormons (at least prior to the hyper-constitutionalism of Ezra Taft Benson) have quite the same reverence. It's a good system, but there is no reason to think it is the best system in all cases. As for the organizational structure of government, I think the British parliamentary model works at least as well, and often quite a bit better. Joseph Smith didn't seem to necessarily care all that much for the American structure--his vision of an ideal governmental system was something like a benign monarchy.

The U.S. Constitution deliberately crippled the federal government, based on fears of tyranny. That was great in the 18th century, but today it just means that nothing ever gets done, and nobody ever solves the nation's problems. It also means that there is no political accountability. If something goes wrong, it is always possible to blame somebody else. Nobody, not even the President, is truly the "head of government" which takes responsibility for things when they go wrong. In the U.S., if something bad happens, the President blames Congress for not passing the bill he wants, and half of Congress blames the other half for being obstructionist. Nobody ever gets held accountable. It has become a serious problem.

Edited October 5, 2012 by Cobalt-70

[TAO]

+1 to Cobalt. =D

[Darren10]

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.

No disagreement with the supremacy clause. That clause was written for situations where a state may take on a function of govern,net which conflicted with powers given *explicitly* to the federal government. I was NEVER written in order to allow the federal government to violate state sovereignty. The vast majority of the country's laws were passed by states until the end of the civil war. That war gave a mighty blow to the 10th Amendment (however necessary it was to do so in order to preserve the Union).

The true voice of the people lays in the states, NOT the federal government. empowering one central national government to protect people's inherently runs contrary to the very idea of protecting such rights. Your true voice lays with local governments, not the federal government. The only legitimate constitutional legality on the federal level with Prop 8 would be if out of state homosexual couples move to California. The Constitution guarantees that states honor all contracts from other states. ALso, anything crossing state borders automatically comes under federal jurisdiction via the Constitution. But no such thing happened when Prop 8 was taken to Judge Walker. Judge walker ruled that the people of California used archaic arguments to support Prop 8 and that the state constitutional amendment would violate due process which is hogwash. Furthermore, Judge Walker had a personal Interest in striking down Prop 8 and thus should have recused himself frm the case.

The Bill of Rights were passed as a guarantee that the *federal* government will not violate certain rights such as establishing a state religion. But for decades after the ratification of the Constitution states still had their own official religion. Not a single founding father denounced this act as unconstitutional so why should we? If neither the founding fathers saw the supremacy clause meaning to trump state sovereignty, than why should we? Instead, the founding opposed foolish legislation within their respective states (such as opposing states in establishing their own official religion). That's *precisely* how we should fight bad legislation from the states. Empowering the federal government to "protect us" also empowers them, to oppress us.

Edited October 5, 2012 by Darren10

[Darren10]

I believe this has already been said the the constitution was set up to protect the country from the tyranny of the masses. Under constitutional government the majority do not have the right to violate the principles of the constitution.

On the federal level, you are absolutely correct. The US Constitution, however, was NEVER established to dictate to a state what laws it may pass unless it conflicts with powers explicitly given to the federal government. That's why, for example, states may not coin its own money.

[Darren10]

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."

Both James Madison and on a lesser extent John Adams feard that creating a strong central government, that tyranny would ensue. James Madison crafted the Constitution to take the vast majority of powers traditionally given to a central / national govenment, and give it to more local state governments. The people are much better served and their rights much better protected by forbidding powers to a central government and dividing said powers among several states. Empowering a central government does NOT help anything on a collective scale. Sure, there will be pockets of success but overall by empowering the federal government over the states, in the case of Prop 8, it can be used dictate to the states what can be voted on. That is NOT a federalist nation.

As for your perception that I prefer a direct democracy, you cannot be more mistaken, sir. Direct democracies are mob rule. I absolutely favor our Republic over a direct democracy. I absolutely oppose a parliamentary system of governance in our blessed land. I would even love for our voting system to return to its original form (which will NEVER hapen) where We the People vote for state legislatures and governors who elect our state senators who elect the US president. From my pint of view, it was peple who opennly disdained the US Constitution that gave us a direct voting system for the US President (and heaven forbid the electorial college is taken away). But, alas, since We the People now vote for our state senators to the US Senate and for the US President than I strongly encourage people to vote their conscience.

More poignantly, I even oppose the system of referendum that the people of California have and used to enact Prop 8. But as a Texan I recognize ZERO power within me to take that power away from Californians. Nor do I recognize the federal government to take away that power. The power of Californian referrendum is for Californians to sort out, not for Texans nor for the federal government to dictate upon them its usage.

Edited October 5, 2012 by Darren10

[Darren10]

The U.S. Constitution deliberately crippled the federal government, based on fears of tyranny. That was great in the 18th century, but today it just means that nothing ever gets done, and nobody ever solves the nation's problems. It also means that there is no political accountability. If something goes wrong, it is always possible to blame somebody else. Nobody, not even the President, is truly the "head of government" which takes responsibility for things when they go wrong. In the U.S., if something bad happens, the President blames Congress for not passing the bill he wants, and half of Congress blames the other half for being obstructionist. Nobody ever gets held accountable. It has become a serious problem.

The inability of our government to act is one of our greatest political blessings. I do not want Washingtn DC to "fix" our problems. I want We the Peple to fix our problems and to do so based upon Judaic-Christian moral principles.

UPDATE: The founders of Texas designed its state legislature to meet only once for abut four months every two years. Their thinking was that the less they can meet the less harm they can do to the people. God bless Texas.

Edited October 5, 2012 by Darren10

[Darren10]

Well, North America, eh? South America was solidly Catholic ground

Don't forget Canada and Mesoamerica.

Not at all to devalue the Catholic influence on American democracy (I'm counting on the Catholic vote this go around to make, lets say, a "good" decision this November) but as I see it, it is no coinsidence that today's democracies were created in lands traditionally Christian. For it is Christians who, more than any other group of people in the world, truly know where freedom comes from. But it was the unique form of Christianity which made these United States a uniquely free nation. As I see it, there was a need to break from what I call a "theological monopoly" in Europe. Martin Luther and others served that purpose. So did the English. And on the English isles, there formed several other protestant groups. These people were exposed to the Bible as well as the English Enlightenment. This unique influence and a personal drive to worship freely are what founded this country of ours. I see the hand of Provinence in all this in what formed the greatest nation in the history of mankind.

Edited October 5, 2012 by Darren10

[Robert F. Smith]

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?

You were entirely right, Cobalt,

Until you got to your last paragraph.

The real issue here is with the gradual overturning of Reynolds vs. the United States -- in which the Supreme Court quashed the practice of polygyny in America. If prop 8 gets overturned, the principle thereby enunciated may extend much further than simply same sex marriage.

So, although you may be right that "Mormons will just go back to their jobs and church callings, and nothing really will change," polygyny will likely become part of the newly accepted pattern in the USA. Muslims and sectarian "Mormons" will be able to legally practice plural marriage throughout the country.

[Robert F. Smith]

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?

Nearly all of your premises (assumptions) here are wrong. Not only do you not understand LDS theology, but you desperately need to take a two-semester university course in "Constitutional Law," usually taught within a political science dept.

It probably isn't your fault that you don't understand the American political and legal system. Our elementary and secondary schools don't bother to teach it, and hardly anyone understands it. What a shame!!

[Robert F. Smith]

I'm sympathetic to this viewpoint. It is a bit troubling that mega pastors like Joel Osteen (a sincere guy I happen to like) and Benny Hin (a proven fraud) pay no tax on their Church salaries and generally live in Church-owned residences which are generally not subject to real estate taxes. The whole purpose of the tax break is to encourage people to pursue a life of service and piety without an undue financial burden. It's turned into a circus of manipulation.

I think the tax code should do one of two things:

1) Give tax exemption to all non-profits -- including political non-profits

or

2) Remove the tax exemption completely for all non-profits

It seems incredibly unfair that Church's -- both on the right and the left -- are free to tell their members how to vote on specific issues from the pulpit (Jeremiah Wright and John Hagee for example) while non-profit political organizations advocating specific causes like AIDS research, Breast Cancer awareness, or even gay rights don't enjoy the same tax exemption.

Plus, I don't like the idea of the IRS deciding what a Church can or can't say.

Seth,

The Supreme Court declared that religious organizations cannot be taxed because the power to tax is the power to destroy. Such organizations may preach nearly any policy, but must refrain from advocating for a particular candidate.

If you want to be cynical, the organizations which you consider at a disadvantage (you seem not to realize that many of them pay no taxes and that contributions to them are charitable and deductible) could simply declare themselves churches or religious organizations. There are plenty of examples.

Edited October 5, 2012 by Robert F. Smith

[Robert F. Smith]

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.

You've got your head in the sand, Valentinus.

Churches have always had plenty of influence on state and federal issues, and that most certainly does not exceed their purpose. Being anti-religious in such cases merely leads to the establishment of a religion of secularism or even of hostility to religion. We saw just how far such intolerance can go in Nazi Germany.

[DavidB]

Seth,

The Supreme Court declared that religious organizations cannot be taxed because the power to tax is the power to destroy. Such organizations may preach nearly any policy, but must refrain from advocating for a particular candidate.

If you want to be cynical, the organizations which you consider at a disadvantage (you seem not to realize that many of them pay no taxes and that contributions to them are charitable and deductible) could simply declare themselves churches or religious organizations. There are plenty of examples.

This is incorrect, see Bond Jones University v US, Scotus ruled religious orgs can be taxed. Also, see the IRS regs, endorsing legislation or promoting a particular candidate is prohibited based on the amount of activity done by the religious org.

[Robert F. Smith]

This is incorrect, see Bond Jones University v US, Scotus ruled religious orgs can be taxed. Also, see the IRS regs, endorsing legislation or promoting a particular candidate is prohibited based on the amount of activity done by the religious org.

Depends on whether we are talking about secular arms of religious groups. The LDS Church pays taxes on such secular operations, where many other churches do not. By the way, I think you meant Bob Jones Univ.

[Saints Alive]

I pray for a return of the Papal States and religious tolerance instead of religious freedom.

Bring back the monarchies!

Yeah because they were super tolerant of the Jews, pagans, and intellectuals. Oh wait... I forgot about that whole inquisition thing.

[thesometimesaint]

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.

We don't give up our rights a citizens just because we become members of a church. That was never the intent of the US Constitution. There is absolutely no evidence that the Church used any monies, let alone tithing money, in its support for prop 8. Individual members like every other citizen has the right to contribute, or not contribute, to any political cause they like.

[Bikeemikey]

On the federal level, you are absolutely correct. The US Constitution, however, was NEVER established to dictate to a state what laws it may pass unless it conflicts with powers explicitly given to the federal government. That's why, for example, states may not coin its own money.

So if the vote re prop 8 was a violation of the federal bill of rights you would support the Supreme Court in over turning it? Would that be an issue of legitimate federal intervention in state process - just as a hypothetical.

[thesometimesaint]

Bikeemikey:

Any church is free to believe, teach, and enforce any of its own rules. It can, for example, exclude green with purple pokey dotted haired people from joining, or retaining membership.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[Darren10]

So if the vote re prop 8 was a violation of the federal bill of rights you would support the Supreme Court in over turning it? Would that be an issue of legitimate federal intervention in state process - just as a hypothetical.

I would NOT want the US Supreme Court to overturn Prop 8, no matter what Bill of Rights it may violate.

[Darren10]

Any church is free to believe, teach, and enforce any of its own rules. It can, for example, exclude green with purple pokey dotted haired people from joining, or retaining membership.

Ahhh, such hate!!!

[Senator]

It was never discussed in church beyond the announcement. There was not even mention of the win which is what I found most surprising. No one was even talking about it in the halls.

.... you need to remember that it is also offensive to tell members who approached this as they do any other proposition in proposition crazy CA that they were zombies when it came to this one.

You are painting with a broad brush as well.

Arizonza had a similar proposition at the same time. You should have seen what said and done in our stake!

[Senator]

I would NOT want the US Supreme Court to overturn Prop 8, no matter what Bill of Rights it may violate.

Wow

[Darren10]

Wow

Wow what?

[Senator]

Wow what?

That the tiny Arctic Tern travels some 44,000 miles in its annual migration.....

What did you think I was "wowing" too?

[Darren10]

That the tiny Arctic Tern travels some 44,000 miles in its annual migration.....

What did you think I was "wowing" too?

The series finale of LOST?

[Darren10]

Regarding Due Process (bold mine):

Incorporation

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states. Did the Fourteenth Amend­ment change that? In the middle of the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. These decisions almost obliterated any difference between the Bill of Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. The right to a jury trial, to take just one example, means the same in state and federal courts; there are no differences about the number of jurors required, whether they have to be unanimous in their verdicts, and so forth.

http://www.law.cornell.edu/wex/due_process