Lds Church Files Friend Of The Court Brief W/ Scotus Re: Prop 8, Doma

[smac97]

http://fox13now.com/2013/02/03/lds-church-files-scotus-brief-supporting-prop-8-doma/

SALT LAKE CITY — The Church of Jesus Christ of Latter-day Saints has filed a pair of briefs with the U.S. Supreme Court, asking it to uphold California’s Proposition 8 and the federal Defense of Marriage Act.

The briefs were drafted by lawyers for the LDS Church here in Utah and filed Jan. 29 before the nation’s top court on behalf of the National Association of Evangelicals, the Southern Baptist Convention, the Lutheran Church-MIssouri Synod, the Romanian-American Evangelical Alliance of North America, Truth in Action Ministries, and the Mormon Church.

“Our theological perspectives, though often differing, converge to support the proposition that the traditional, opposite-sex definition of marriage in the civil law is not only constitutional but essential to the welfare of families, children, and society,” Von Keetch of the Utah-based firm Kirton McConkie, wrote in the DOMA brief.

In the Proposition 8 briefing, the coalition argues that the Ninth Circuit Court should be reversed. The panel of judges ruled the measure, which banned same-sex marriage in 2008, is unconstitutional.

“The people of California violated no one’s civil rights when they adopted Proposition 8. Their twice-expressed preference for the traditional definition of marriage over an untested rival conception was thoroughly rational. It is therefore thoroughly constitutional,” Keetch wrote in the Prop. 8 brief.

The LDS Church has been the subject of controversy and protest over its involvement in the passage of Prop. 8. It encouraged members to donate time and money to ensure its passage. The backlash was felt nationwide, with protests around Temple Square.

While insisting that it believes marriage is between a man and a woman, the LDS Church has appeared to soften its tone toward the gay community. The church recently launched a website to encourage “greater compassion” toward the LGBT community, and acknowledged that sexuality is not a choice.

The LDS Church’s amicus curiae brief is one of dozens being filed with the U.S. Supreme Court. A number of religious, civic and private organizations are filing “friend of the court” briefs, weighing in on whether same-sex marriage should be allowed.

Most recently, Utah Attorney General John Swallow joined other states in asking the court to uphold Prop. 8 and DOMA. The Utah Pride Center plans to file a brief in support of same-sex marriage.

____

Here is a pretty good article about this same subject.

A few thoughts/observations:

1. This case addresses the constitutionality of a state constitutional amendment which retains the "one man, one woman" definition of marriage. Since the issue is based on the federal constitution, the impact of the Supreme Court's decision on this case as to all state statutes and constitutional amendments defining marriage will be significant.

2. The U.S. Supreme Court has previously rejected the claim that the Federal Constitution prohibits a State from embracing the traditional gendered definition of marriage. Believe it or not, this decision, Baker v. Nelson, was decided in 1972.

3. Marriage has long been defined as the association of two people based on the attributes of those people, including A) gender (a man and a woman), B) number (two people), C) age (this one varies by jurisdiction a bit), D) mental capacity, E) consent (no coerced marriages), F) consanguinity and G) species (no human / non-human marriages). If the Supreme Court decides that the constitution mandates tossing out one attribute as a defining element of marriage (gender), then it would seem all of the others can be constitutionally tossed out as well.

We are living in interesting times.

Thoughts?

-Smac

[rockpond]

3. Marriage has long been defined as the association of two people based on the attributes of those people, including A) gender (a man and a woman), B) number (two people), C) age (this one varies by jurisdiction a bit), D) mental capacity, E) consent (no coerced marriages), F) consanguinity and G) species (no human / non-human marriages). If the Supreme Court decides that the constitution mandates tossing out one attribute as a defining element of marriage (gender), then it would seem all of the others can be constitutionally tossed out as well.

We are living in interesting times.

Thoughts?

-Smac

I'm no lawyer but don't we already have sufficient legal basis for preventing those described by attributes C through G from entering into legal contracts? Whereas gender seems to me to be something that we are not allowed to invoke as a discriminating factor.

Number of people in a marriage is an interesting one as it would (again, to my non-lawyer brain) require a lot of change to the laws surrounding marriage in the U.S. to make them work for more than two people. That said, I feel that given our own religious history, we ought to be willing to allow for polygamous marriages.

[cdowis]

This is not a slam dunk for the liberals.

Supreme Court Justice Ruth Bader Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide.

"It's not that the judgment was wrong, but it moved too far too fast," Ginsburg told a symposium...

At the time of Roe v. Wade, abortion was legal on request in four states, allowed under limited circumstances in about 16 others, and outlawed under nearly all circumstances in the other states, including Texas – where the Roe case originated.

Alluding to the persisting bitter debate over abortion, Ginsburg said the justices of that era could have delayed hearing any case like Roe while the state-by-state process evolved. Alternatively, she said, they could have struck down just the Texas law, which allowed abortions only to save a mother's life, without declaring a right to privacy that legalized the procedure nationwide.

"The court made a decision that made every abortion law in the country invalid, even the most liberal," Ginsburg said. "We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained."

A breathtaking admission.

Edited February 4, 2013 by cdowis

[rockpond]

This is not a slam dunk for the liberals.

Don't have the link, but Ginsberg recently made a breathtaking admission that Roe vs Wade decision was a mistake, that it should have been left to the states to decide because---gasp-- it has caused a great deal of unnecessary dissension. She is implying that this may also be the case with DOMO -- not to jam it down the throats of the people, but allow it to be gradually handled at the state level.

Wow... yeah, very interesting. Seems like that could happen: a repeal of the federal DOMA but a push back to the states for the marriage definition.

[wayfarer]

At question before the Supreme Court is whether Proposition 8 constitutes a violation of the equal protection clause of the fourteenth amendment, which states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The LDS church, along with other religious organizations, authored an "Amici Curiae"/"Friends of the Court" brief, written and filed by Von Keetch of Kirton McConkie, the Chief Outside Counsel of the LDS Church. The heart of the Proposition 8 Friends of the Court brief is a fallacy so obvious it's hard to understand how an attorney can make it with a straight face:

"Proposition 8 is a measured response to the California Supreme Court's decision declaring traditional male-female marriage unconstitutional as a matter of State law. It maintains robust legal protections for same-sex couples while restoring the traditional definition of marriage." (Amici, page 2)

California's Supreme Court did not declare traditional male-female marriage unconstitutional, and proposition 8 does not grant any legal protections to same-sex couples. These statements are patently absurd and false. Proposition 8 reads:

Only marriage between a man and a woman is valid or recognized in California.

Nothing in the language of the proposition maintains robust legal protections for anyone other than traditional married couples. The term 'only' constitutes a denial of rights -- a denial of equal protection -- to those who choose to marry their life-partners of the same sex. Importantly, the California Supreme Court did not rule that marriage is unconstitutional. They stated that "no compelling state interest justifies denying same-sex couples the fundamental right to marry." Denial of rights and equal protection is at issue here, not marriage. Nothing in Proposition 8 empowers or strengthens marriage, and nothing in the California Supreme Court denies rights of heterosexual couples from engaging in traditional marriage. The amici curiae brief written by the LDS Church's chief outside counsel is a prevarication at best, and fails to address the question before the Supreme Court.

Under Prop 8, gays are denied equal protection, and that is why the California Supreme Court struck it down.

Further, Proposition 8 is in violation of the "establishment clause" in the First Amendment. If I am a devout gay Episcopalian or Unitiarian, then marriage, blessed by my church, is a religiously-sanctioned and supported option. Proposition 8 promotes a majority religion's doctrine of "marriage" in defiance of the religious rights of a minority of people, including Episcopalians and Unitarians. In so doing, Proposition 8 establishes a majority religious definition of marriage. While there is a precedent for this in the Supreme Court decision with respect to the Edmunds-Tucker act (1890), the forcing of one religious definition of marriage over another religious definition is clearly in conflict with the first amendment. The irony, of course, is that the Edmunds-Tucker Supreme Court decision regarding marriage is exactly the one that disenfranchised the Church of Jesus Christ of Latter Day Saints.

Of course, the question is substantively similar to one of the questions in Baker v Nelson, which the Supreme Court denied hearing for want of a substantive question. Does the precedent apply? Quite possibly, but the precedent is wrong, in my opinion. But then again, I'm not one of "them"...so...

[sethpayne]

We are living in interesting times.

Thoughts?

-Smac

This is terribly unfortunate.

Speaking from a purely practical viewpoint:

Regardless of how the court rules, gay marriage will continue to become legal in the various states. It will also become more and more socially acceptable. All of this will happen whether gay marriage, or homosexuality, or anything else is "wrong" or "not wrong."

When gay marriage becomes part of our social orthodoxy, then the Church will be in the very awkward position of explaining why they opposed what is (being in the future) now accepted as socially good.

Some may say that the Church takes action based solely on morality in order to take a tough moral stand regardless of what the outcome may be. Well, gay marriage passed without a problem here in WA last year and there was no organized effort by the Church to oppose it. Similar elections in other also not brought the Church out. In most of these states, the outcome was a foregone conclusion. My point is the Church is very judicious (as well they should be) as to how and when they get involved in issues with a political aspect. This filing, IMO, is a strategic mistake and puts at risk much of goodwill built up during the Mormon moment.

Seth

Edited February 4, 2013 by sethpayne

[cdowis]

At question before the Supreme Court is whether Proposition 8 constitutes a violation of the equal protection clause of the fourteenth amendment, which states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Is it illegal to deny a driver's license to a blind person?

Some licenses require the ability to pass an exam. Is this "discrimination" against the mentally challanged?

The issue is whether the state is allowed to control the requirements for granting of a license -- a driver's license, a marriage license.

A gay person, a blind person, a brown person, a male or female individual can apply for marriage license as long as the partner is the opposite gender. There may be some age restriction, but even a blind person can see that there is no illegal discrimination, only a state approved *requirement*, viz. mixed gender.

Overturning DOMA, will pave the way to remove the requirements mentioned above. No more bar exams, no more CPA exam, no more testing for eyesight because they are "illegal".

Now that is obvious, my friend. The requirement must be reasonable, and that then becomes a discussion on whether a requirement of mixed gender is reasonable, not whether it is discrimination.

Edited February 4, 2013 by cdowis

[wayfarer]

@cdowis: please first explain how granting a marriage license to a gay couple denies any rights from a heterosexual couple who desire to marry.

As for your question, gay people often do not have the option to marry a person of the opposite sex. Whether this is a born attribute or not, the failure of reparative therapy speaks to the idea that some are simply going to need to be with a partner of the same sex. And to deny an individual the right of marriage if that is what they want is the deny liberty and shared property rights that come along with a marriage. With proposition 8's change to California's constitution, gays are denied equal protection under the law.

As well, if I am a devout, gay Episcopalian or Unitarian, I am denied my ability to practice my religion.

your comments on legal exams, cpa exams and testing for eyesight are complete non-sequiturs.

Edited February 4, 2013 by wayfarer

[smac97]

I'm no lawyer but don't we already have sufficient legal basis for preventing those described by attributes C through G from entering into legal contracts?

I think we have a sufficient legal basis for defining marriage through all of the attributes listed above.

Whereas gender seems to me to be something that we are not allowed to invoke as a discriminating factor.

Can you explain this? I'd like to hear your thoughts.

Number of people in a marriage is an interesting one as it would (again, to my non-lawyer brain) require a lot of change to the laws surrounding marriage in the U.S. to make them work for more than two people.

I think you are right. But if there is a constitutional right at stake, then legal inconvenience isn't really an excuse to continue to deprive citizens of that right.

That said, I feel that given our own religious history, we ought to be willing to allow for polygamous marriages.

Yes, Mormons are in an awkward position on that one. However, i think polygamy is far more legitimate that same-sex marriage. The government is in the marriage regulation business because it has an interest in the procreation that typically arises out of that institution. Polygamy is, in this day age, a logistical headache. But it undoubtedly facilitates procreation. Same-sex marriage does not.

Thanks,

-Smac

[smac97]

This is not a slam dunk for the liberals.

A breathtaking admission.

Yep, social engineering by the Supreme Court is troubling. That Justice Ginsburg feels comfortable in talking about this phenomenon as okay as long as nobody knows about it or recognizes that it is happening, is also troubling.

Thank you,

-Smac

[The Grimace]

Overturning DOMA, will pave the way to remove the requirements mentioned above. No more bar exams, no more CPA exam, no more testing for eyesight because they are "illegal".

Now that is obvious, my friend.

No, it isn't.

[The Grimace]

The government is in the marriage regulation business because it has an interest in the procreation that typically arises out of that institution.

Can you support this assertion? How do you know the government holds this opinion? Are governments in the dog licensing business because it has an interest in procreation amongst the dog population?

Edited February 4, 2013 by The Grimace

[cdowis]

@cdowis: please first explain how granting a marriage license to a gay couple denies any rights from a heterosexual couple who desire to marry.

As for your question, gay people often do not have the option to marry a person of the opposite sex.

That is a personal issue, not a legal one. Single straight men also find themselves in a similar situation for many reasons.

The gay person can simply do what they already do to satisfy their needs for companionship.

Whether this is a born attribute or not, the failure of reparative therapy speaks to the idea that some are simply going to need to be with a partner of the same sex. And to deny an individual the right of marriage if that is what they want is the deny liberty and shared property rights that come along with a marriage.

A mentally challanged person wants to become a lawyer, a blind person wants to fly an airplane, drive a car. Some have been born that way, and why should the law stand in the way of achieving their dream?

Surely, as a liberal, you don't want to stop them from those dreams, their life-long goals. Let's get rid of all license requirements, just test to see if they are breathing.

your comments on legal exams, cpa exams and testing for eyesight are complete non-sequiturs.

Let's get rid of all license requirements, and just give a single test to see if they are breathing. All of those exams I mentioned have "reasonable requirements" and we should discuss the question whether the mixed sex requirement is reasonable. It certainly is not discrimination, as you have quietly conceded in your post here.

[cdowis]

No, it isn't.

Yes it will.

Remember, we would be overturning "common sense" requirement for a license in favor of a mistaken view of discrimination. It is not discrimination, as I demonstrate in my original post. The issue should revolve around whether is "reasonable".

I have a mentally challanged client, and argue to the court that the driver's license requirement discriminates against my client to represent a client in a court of law. My argument is based on the legal doctrine in the DOMA decision. . "Reasonable" can no longer be used as a requirement if it conflicts with discrimination.

I have no less than the Supreme Court deciding that a license cannot be denied on such an issue

Edited February 4, 2013 by cdowis

[The Grimace]

Yes it will.

Remember, we would be overturning "common sense" requirement for a license in favor of a mistaken view of discrimination. It is not discrimination, as I demonstrate in my original post. The issue should revolve around whether is "reasonable".

Currently, the requirement for a marriage licence in all states is based on genitalia. That's it. In some states, genitalia can be the same for both applicants; in most states, genitalia must be different.

I fail to see how changing the requirements regarding genitalia in marriage licences leads to sweeping changes in bar exams, driving exams, CPA exams, etc.

[california boy]

Can anyone figure out what the churches argument for prop 8 is other than it doesn't match our religious beliefs? That sounds irrelevant to me when it comes to the law.

[california boy]

Yes it will.

Remember, we would be overturning "common sense" requirement for a license in favor of a mistaken view of discrimination. It is not discrimination, as I demonstrate in my original post. The issue should revolve around whether is "reasonable".

I have a mentally challanged client, and argue to the court that the driver's license requirement discriminates against my client to represent a client in a court of law. My argument is based on the legal doctrine in the DOMA decision. . "Reasonable" can no longer be used as a requirement if it conflicts with discrimination.

I have no less than the Supreme Court deciding that a license cannot be denied on such an issue

If your argument is a valid legal argument, then why didn't the church include it in their brief?? Or are you just smarter than the church lawyers and they missed this point.

[cdowis]

Can you support this assertion? How do you know the government holds this opinion?

The fact that close relatives cannot be granted a marriage license -- father, daughter -- gives prima facia evidence for the intent of the law.

[cdowis]

Can anyone figure out what the churches argument for prop 8 is other than it doesn't match our religious beliefs? That sounds irrelevant to me when it comes to the law.

Well, we know that no society has had such a marriage, whether that society was based on religion or not. The ancient Greeks were very tolerant of homosexual behaviour, for example.

[Questing Beast]

The discrimination arises when one person loves another person and wants to legally name them as their beneficiary or heir, and cannot because the legal system prohibits their association as spouses, which is presently the only legally recognized relationship granting those rights to so-designate. If any two adults can enter into, say, a "domestic partnership", and achieve the exact same legal advantages and obligations of heterosexual Marriage, then the law has achieved the up-till-then denied benefits, yet preserved the present legality of acquiring a Marriage licence. It is possible for two such licences to exist side by side, and still not call what GLBTQs enter into (or for that matter fathers and sons, or mothers and daughters, or any permutation of the same kind of "consenting adult" domestic partnerships) "marriage". But that won't satisfy the more vociferous GLBTQs, because they demand the equal use of "marriage" as the nomenclature in the proposed changes to the law. That they don't possess equal "right" to "marriage", the word, is the discrimination that they are all about....

[thesometimesaint]

Is it illegal to deny a driver's license to a blind person?

Some licenses require the ability to pass an exam. Is this "discrimination" against the mentally challanged?

The issue is whether the state is allowed to control the requirements for granting of a license -- a driver's license, a marriage license.

A gay person, a blind person, a brown person, a male or female individual can apply for marriage license as long as the partner is the opposite gender. There may be some age restriction, but even a blind person can see that there is no illegal discrimination, only a state approved *requirement*, viz. mixed gender.

Overturning DOMA, will pave the way to remove the requirements mentioned above. No more bar exams, no more CPA exam, no more testing for eyesight because they are "illegal".

Now that is obvious, my friend. The requirement must be reasonable, and that then becomes a discussion on whether a requirement of mixed gender is reasonable, not whether it is discrimination.

1. Driving on the public roads and highways is not a Right it is a privilege granted by the State. Thus can be denied at any time.

2. A State is within its legal authority to set the terms and conditions for a whole host of activities that negatively effect innocent third parties. IE; Having a blood alcohol content of greater than .08% while operating a motor vehicle on the public roads is illegal in my State. Whether I'm alcohol challenged or not.

3. Generally yes. What a State can not do is deny a Right without the due process of law.

4. Sex preference is a factor which can not be discriminated against. Other factors include race, creed, color, national origin, sex.

5. None of those are Rights. IE; I don't have the right to practice medicine without a license from the State.

6. It always is. In a republic such as ours we strive to limit discrimination because of factors beyond our control. IE; There is nothing I can do about my age, race, skin color beyond getting a tan, where I was born, my sex, and my sexual orientation.

[rockpond]

Can you explain this? I'd like to hear your thoughts.

My thought was just that we can't legally prevent someone from entering into a legal contract because of their gender. Whereas, for example, a minor cannot enter into many legal contracts because they are not a consenting legal adult.

[Zeta-Flux]

California's Supreme Court did not declare traditional male-female marriage unconstitutional, and proposition 8 does not grant any legal protections to same-sex couples. These statements are patently absurd and false. Proposition 8 reads:

Actually, yes, they did declare that the traditional male-female rule for marriage is unconstitutional.

And the quote you gave didn't say that Prop. 8 granted legal protections. It said that maintained the robust legal protections already in California law.

[rockpond]

Well, we know that no society has had such a marriage, whether that society was based on religion or not. The ancient Greeks were very tolerant of homosexual behaviour, for example.

I don't think the ancient Greeks licensed marriages: regardless of the genders of the couple.

[Zeta-Flux]

Currently, the requirement for a marriage licence in all states is based on genitalia. That's it. In some states, genitalia can be the same for both applicants; in most states, genitalia must be different.

This is both a false and misleading statement.

First, the states inquire into a large number of attributes such as age, relationship, whether at least one of the parties is a citizen, etc...

Second, you are conflating genitalia with gender. The state does not inquire as to whether your genitalia are present. It only asks that the two parties have opposite gender. Please stop conflating the two issues.