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

[cdowis]

This is probably the strongest reason why prop 8 will be overturned. It is easy to explain why a blind man would physically harm others by being allowed to drive. It is impossible to explain why gay marriage would harm anyone. Many have tried. All have failed.

Perhaps you are right, but my point is that the test of "reasonable" is not a constitutional issue, not normally an issue for the Supreme Court. It then likely becomes an issue for legislature or state courts.

[Cobalt-70]

Perhaps you are right, but my point is that the test of "reasonable" is not a constitutional issue, not normally an issue for the Supreme Court. It then likely becomes an issue for legislature or state courts.

The constitutional issue is whether or not Prop. 8 has a "rational basis." That has a more technical meaning than asking if it is "reasonable." A "rational basis" cannot be a religious doctrinal basis, the majority's general sense of morality, tradition, or conclusions that are unproven by reliable data. Moreover, Prop. 8 has to be shown to directly relate to whatever the alleged rational basis is. That's why, in the case of Prop. 8, where California law already provided same sex couples with all the same rights other than the dignitary right to call their union "marriage," almost all of the alleged rationales presented by the LDS Church and the pro-Prop. 8 side, like the well-being of children adopted to same-sex couples, are completely irrelevant.

Edited February 15, 2013 by Cobalt-70

[Kevin Kirkham]

JW - Religious exemptions pertaining to SSM will be revoked. Churches will be required to perform them, and the LDS Church most likely will be sued by some gay rights group demanding that it perform sealings of gays in the temple. Gays already demand that our moral strictures pertaining to chastity - which we claim come from God - be modified to exempt homosexual behavior

KK - Even if some whacko activist judge said that gays COULD marry in the temple, 3 things could happen -

#1 The Church would tie the decision up in courts for years via appeals and motions and would undoubtedly succeed in reversing that ruling. There will be some sympathetic church going judge who surely doesn't want gays forcing themselves on his own church. The judge could be libertarian minded and dismiss the case on First Amendment grounds saying, "What part of 'Shall Make No Law...Prohibiting The Free Exercise Thereof' don't you understand?". The judge could also be an elected figure and doesn't want to anger the vast majority of voters by ruling against churches. It'll get dismissed somewhere along the line.

#2 If that failed, the Church would simply quit performing legal marriages in temples in the U.S. and would encourage couples to get married in foreign temples or allow them to get married at City Hall or by their bishop in the Cultural Hall and then immediately go to the temple for the non-legally binding religious ordinance of sealing. This is done all over the world where temple marriages are not recognized as legally binding. The Church also waves the one-year probation penalty for marrying outside of the temple in such cases. The Church Handbook of Instruction specifically states that. Since the sealings would have no legal standing, the judge couldn't order them performed.

#3 If that didn't work, we would, along with other churches and liberty minded people, push to pass a constitutional amendment (state or federal) that would allow churches to marry whom they will in their own facilities. Other churches would support it since they would be hassled by gays as well. Such an amendment would get passed at light speed. No politician would dare oppose it. It would have overwhelming public support, even amongst fair-minded homosexcuals. This would be pushed through even if #1 and #2 were ruled in the Church's favor.

[california boy]

#3 If that didn't work, we would, along with other churches and liberty minded people, push to pass a constitutional amendment (state or federal) that would allow churches to marry whom they will in their own facilities. Other churches would support it since they would be hassled by gays as well. Such an amendment would get passed at light speed. No politician would dare oppose it. It would have overwhelming public support, even amongst fair-minded homosexcuals. This would be pushed through even if #1 and #2 were ruled in the Church's favor.

I think it is pretty clear that religious protection on church practices are already guaranteed in the constitution. No further amendment is required. Comments suggesting that churches will be forced to marry ANYONE against their wish is just the fear mongering that we often hear when gay marriage comes up. The Mormion church discriminated against blacks for over 100 years and not once was the church forced to perform a marriage for a black person. Some people thrive on slippery slope arguments that have absolutely no basis in fact. They often try and blur what is a church and what is a business run by the church open to the general public to further the misinformation.

[cdowis]

The constitutional issue is whether or not Prop. 8 has a "rational basis." That has a more technical meaning than asking if it is "reasonable." A "rational basis" cannot be a religious doctrinal basis, the majority's general sense of morality, tradition, or conclusions that are unproven by reliable data. Moreover, Prop. 8 has to be shown to directly relate to whatever the alleged rational basis is. That's why, in the case of Prop. 8, where California law already provided same sex couples with all the same rights other than the dignitary right to call their union "marriage," almost all of the alleged rationales presented by the LDS Church and the pro-Prop. 8 side, like the well-being of children adopted to same-sex couples, are completely irrelevant.

The burden of proof is on SSM advocates since the default position is that the electorate voted in the majority for prop 8, and it can only be overturned on constitutional grounds. It is clear from the discussions on this forum that there is no discrimination for a protected class, so the strength of the antiSSM position is strictly defensive and the default position should prevail.

It then goes to the legislature... etc.

Of course, like the Dred Scott decision, the court can make any decision, including one based on emotion and flawed arguments.

Edited February 16, 2013 by cdowis

[cdowis]

I think it is pretty clear that religious protection on church practices are already guaranteed in the constitution. No further amendment is required. Comments suggesting that churches will be forced to marry ANYONE against their wish is just the fear mongering that we often hear when gay marriage comes up.

They will not be "forced" to do anything -- with guns drawn and soldiers marching into church buildings.

But the effects can be wide spread, such as would affect the social agencies of the churches, and other affiliated institutions. The legislators can now look at the tax exemption status of the temples (as they did in England).

No, we won't be forced to perform SS marriages, but only to close down our adoption agencies, to pay taxes on church property, etc.

You think we are fools that we will be left alone. We are not fools.

We already see what Obama attempted to do with heathcare requirements, but, under tremendous pressure, revoked them. There will be a continued effort to "toe the line" over the next decades with creative restrictions and laws.

Edited February 16, 2013 by cdowis

[jwhitlock]

I think it is pretty clear that religious protection on church practices are already guaranteed in the constitution. No further amendment is required. Comments suggesting that churches will be forced to marry ANYONE against their wish is just the fear mongering that we often hear when gay marriage comes up. The Mormion church discriminated against blacks for over 100 years and not once was the church forced to perform a marriage for a black person. Some people thrive on slippery slope arguments that have absolutely no basis in fact. They often try and blur what is a church and what is a business run by the church open to the general public to further the misinformation.

Nonsense - and quit race baiting.

To what extent the government can and will go to force compliance with their agenda was evident with their actions against the church concerning polygamy. It's not a slippery slope; it's already happened once, and could well happen again. Especially since gay rights groups have already expressed their willingness to subordinate constitutional religious freedoms to their demands.

[rockpond]

It is clear from the discussions on this forum that there is no discrimination for a protected class, so the strength of the antiSSM position is strictly defensive and the default position should prevail.

Judge Walker disagrees based on what he wrote in his Prop 8 decision:

"Prop 8 violates the Equal Protection Clause because it:

1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and

2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying."

I think SCOTUS could rule similarly.

[jwhitlock]

JW - Religious exemptions pertaining to SSM will be revoked. Churches will be required to perform them, and the LDS Church most likely will be sued by some gay rights group demanding that it perform sealings of gays in the temple. Gays already demand that our moral strictures pertaining to chastity - which we claim come from God - be modified to exempt homosexual behavior

KK - Even if some whacko activist judge said that gays COULD marry in the temple, 3 things could happen -

#1 The Church would tie the decision up in courts for years via appeals and motions and would undoubtedly succeed in reversing that ruling. There will be some sympathetic church going judge who surely doesn't want gays forcing themselves on his own church. The judge could be libertarian minded and dismiss the case on First Amendment grounds saying, "What part of 'Shall Make No Law...Prohibiting The Free Exercise Thereof' don't you understand?". The judge could also be an elected figure and doesn't want to anger the vast majority of voters by ruling against churches. It'll get dismissed somewhere along the line.

#2 If that failed, the Church would simply quit performing legal marriages in temples in the U.S. and would encourage couples to get married in foreign temples or allow them to get married at City Hall or by their bishop in the Cultural Hall and then immediately go to the temple for the non-legally binding religious ordinance of sealing. This is done all over the world where temple marriages are not recognized as legally binding. The Church also waves the one-year probation penalty for marrying outside of the temple in such cases. The Church Handbook of Instruction specifically states that. Since the sealings would have no legal standing, the judge couldn't order them performed.

#3 If that didn't work, we would, along with other churches and liberty minded people, push to pass a constitutional amendment (state or federal) that would allow churches to marry whom they will in their own facilities. Other churches would support it since they would be hassled by gays as well. Such an amendment would get passed at light speed. No politician would dare oppose it. It would have overwhelming public support, even amongst fair-minded homosexcuals. This would be pushed through even if #1 and #2 were ruled in the Church's favor.

I am under no illusion that it would be this simple or straightforward. The government does what it wants, without regard to constitutionality or amendments. While the church could and would change policies and procedures to avoid as much of this as possible, the clear direction of gay rights groups and their government supporters indicates that they want nothing less than everyone and all organizations to embrace homosexual behavior as acceptable and normal. Religious rights and rights of association are to be subject to the litmus test of whether it is "inclusive" of homosexual behavior. Anything that doesn't will be subject to persecution in a variety of ways - financial, legal, regulatory, etc. - until they do comply.

Should the direction things are headed play out to that end, I see more of a possibility that there will be an enormous backlash. When one special interest group becomes that privileged in society, in that their actions and demands take precedence over everything else, resentment builds up and eventually something blows up.

One can point to European or other nations where special gay rights have been fully implemented; they stay in effect only because the conflicting moral strictures and organizations that support them have been undermined to the point that they no longer wield much power or influence. Hence, they are ignored.

In the United States, it is different. There is a strong undercurrent of faith and high moral values in place that is not gong to go away any time soon. The secularization of society is being resisted here, and gay rights is very much a part of that secularization. While I think the church is going to be a lightning rod as part of the gay rights movement, it may well be soon overshadowed by far more divisive upheavals in society should such elite rights for gays be made the law of the land.

[rockpond]

They will not be "forced" to do anything -- with guns drawn and soldiers marching into church buildings.

But the effects can be wide spread, such as would affect the social agencies of the churches, and other affiliated institutions. The legislators can now look at the tax exemption status of the temples (as they did in England).

No, we won't be forced to perform SS marriages, but only to close down our adoption agencies, to pay taxes on church property, etc.

You think we are fools that we will be left alone. We are not fools.

We already see what Obama attempted to do with heathcare requirements, but, under tremendous pressure, revoked them. There will be a continued effort to "toe the line" over the next decades with creative restrictions and laws.

Fear of what could possibly happen does not strike me as a good enough reason to not do the right thing.

[jwhitlock]

Judge Walker disagrees based on what he wrote in his Prop 8 decision:

"Prop 8 violates the Equal Protection Clause because it:

1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and

2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying."

I think SCOTUS could rule similarly.

Walker, of course, was clearly mistaken. Heterosexual men and women MAY NOT marry the person of their choice freely. They are bound by the defined structure of marriage. Second, it does not prevent gay men and lesbians from marrying, as is evident by the growing number of gays who do get married to women.

Walker had to have blinders on in order to make such statements. One hopes that the SCOTUS would not make the same mistake.

[rockpond]

Walker, of course, was clearly mistaken. Heterosexual men and women MAY NOT marry the person of their choice freely. They are bound by the defined structure of marriage. Second, it does not prevent gay men and lesbians from marrying, as is evident by the growing number of gays who do get married to women.

Walker had to have blinders on in order to make such statements. One hopes that the SCOTUS would not make the same mistake.

Yes, I know you believe he was mistaken. It doesn't mean he has blinders on. And I think there is a greater likelihood that SCOTUS will agree with him.

Edited February 16, 2013 by rockpond

[jwhitlock]

Yes, I know you believe he was mistaken. It doesn't mean he has blinders on. And I think there is a greater likelihood that SCOTUS will agree with him.

Well, I at least have given reasons why he was mistaken. And those reasons are something SSM supporters have no cogent response to.

Of course, if SSM supporters can get a wacko judge like Walker to redefine right and wrong for them, then that's all they need to foist their agenda on the rest of us.

[california boy]

No, we won't be forced to perform SS marriages, but only to close down our adoption agencies, to pay taxes on church property, etc.

You think we are fools that we will be left alone. We are not fools.

We already see what Obama attempted to do with heathcare requirements, but, under tremendous pressure, revoked them. There will be a continued effort to "toe the line" over the next decades with creative restrictions and laws.

What do you know, as predicted, the first poster tries to blur the difference between a church owned business (in this case one that was receiving government subsidies to perform their business and one that the government did not close down, but ratehr voluntairly closed its doors) and a church. By now, I am sure they know better, but prefers to look for strawman rather than actual facts. I guess this false argument will never end.

[california boy]

Nonsense - and quit race baiting.

To what extent the government can and will go to force compliance with their agenda was evident with their actions against the church concerning polygamy. It's not a slippery slope; it's already happened once, and could well happen again. Especially since gay rights groups have already expressed their willingness to subordinate constitutional religious freedoms to their demands.

LOL, Race bating? Are we a bit desperate? If you think the church's policies were racist, then that is your opinion, not one I posted.

The Supreme Court has indeed ruled against an individual church. What the Supreme Court did to the church over polygamy was wrong and unconstitutional. I agree. But what you can not ever come up with is the government forcing all churches to do anything. Your only hope is to make some slippery slope argument cause that is all you got. For some, that is enough. It is not based in fact but rather fear.

[rockpond]

Well, I at least have given reasons why he was mistaken. And those reasons are something SSM supporters have no cogent response to.

Of course, if SSM supporters can get a wacko judge like Walker to redefine right and wrong for them, then that's all they need to foist their agenda on the rest of us.

Judge Walker's 138 page ruling represents a cogent response. The quote that I included above states it clearly.

Your response that gay men and lesbians have the right to marry someone of the opposite gender doesn't do anything to recognize their innate and immutable traits. But you can keep stating it - it's your best argument.

And, as I have already noted, I don't see fear of what the government might possibly due as a reason to not do the right thing for homosexuals. Denying fundamental civil rights to them as a means of potentially preserving ours seems short-sighted.

[jwhitlock]

LOL, Race bating? Are we a bit desperate? If you think the church's policies were racist, then that is your opinion, not one I posted.

The Supreme Court has indeed ruled against an individual church. What the Supreme Court did to the church over polygamy was wrong and unconstitutional. I agree. But what you can not ever come up with is the government forcing all churches to do anything. Your only hope is to make some slippery slope argument cause that is all you got. For some, that is enough. It is not based in fact but rather fear.

Well there you go. You've admitted we have a precedent for the government to force a church to do something that's outside of its constitutional authority. That eliminates your slippery slope misdirection.

Despite your dismissive claims that we're just "fear mongering", clear evidence of what's going on today indicates otherwise. You basically want us to stick our heads in the sand and act as if nothings going to happen, while gay rights groups run roughshod over our religious and associative rights. That's where we're headed, and I'd rather believe my lying eyes with what I see and what I read, rather than your ridiculous emotional responses.

Gay rights groups want religious and associative rights subordinated to inclusion and embracing of their behavior and lifestyle. That's clear from the BSA situation. If they can't take control of an organization and force change, then they will use legal means to do so. Religious exemptions (or any other promise) written into law aren't worth the paper they're written on, as evidenced by the church's experience with polygamy, and Indian treaties. Gay rights groups have already set the stage for punishing the church; you just need to go look at Affirmation's web site to get an idea of how they really feel about us.

Face it. Those who run gay rights groups are diametrically opposed to everything we as Latter-day Saints stand for. Their agendas are incompatible with the gospel of Jesus Christ. They do not want to co-exist with us. They want to punish us for our opposition to their agendas, and they will not forget that once they get the upper hand. How soon you want us to forget the vitriol heaped upon us by your people after Prop 8 was passed.

We raise valid concerns, you dismiss them with demeaning emotionalism. At every opportunity, you use race baiting to demean the church and to make invalid comparisons with what gay rights groups are demanding - an elite status that was never the object of the black civil rights movement. There's plenty of evidence out there for the way this is headed, and simply trying to dismiss it in they way you do isn't going to change that direction - though I'm sure that you'd like us to ignore what's happening behind the curtain over there.

[jwhitlock]

Judge Walker's 138 page ruling represents a cogent response. The quote that I included above states it clearly.

Your response that gay men and lesbians have the right to marry someone of the opposite gender doesn't do anything to recognize their innate and immutable traits. But you can keep stating it - it's your best argument.

Recognizing only homosexual traits as an exception when it comes to marriage is a special right being granted. Walker fails to recognize that basic fact, that this is not about "fundamental rights", but of granting a special privilege and then requiring all organizations to recognize and embrace that privilege. As far as "immutable" traits, that is also questionable as a generalization for all gays.

And, as I have already noted, I don't see fear of what the government might possibly due as a reason to not do the right thing for homosexuals. Denying fundamental civil rights to them as a means of potentially preserving ours seems short-sighted.

It's already been clearly proven that gays are not denied any rights available to anyone else, yet you continue to simply ignore that clear fact. "Denying fundamental civil rights" is simply a false characterization of what's really going on here. No fundamental civil rights have been denied in this case; the fact that you have to resort to redefining meanings of phrases and words in order to make this claim indicates that special privilege would be a more accurate characterization of what's being demanded.

[Kenngo1969]

It's a good thing that the federal government, via the courts, would never attempt to dictate the religious practice of a church. Oh, wait. Yes, it would. It already has. See Reynolds v. United States, 98 U.S. 145 (1878).

[rockpond]

Recognizing only homosexual traits as an exception when it comes to marriage is a special right being granted. Walker fails to recognize that basic fact, that this is not about "fundamental rights", but of granting a special privilege and then requiring all organizations to recognize and embrace that privilege. As far as "immutable" traits, that is also questionable as a generalization for all gays.

It's already been clearly proven that gays are not denied any rights available to anyone else, yet you continue to simply ignore that clear fact. "Denying fundamental civil rights" is simply a false characterization of what's really going on here. No fundamental civil rights have been denied in this case; the fact that you have to resort to redefining meanings of phrases and words in order to make this claim indicates that special privilege would be a more accurate characterization of what's being demanded.

Heterosexual traits are already legally recognized. So it's not an exception, it's equality. I find Walker's argument much more compelling than yours.

Marriage was declared a fundamental civil right by SCOTUS (Loving v Virginia). That fundamental civil right is denied to a homosexual if you restrict it to someone of the opposite gender because they lack the ability to enter into a meaningful heterosexual relationship. I'm not sure why you would want to demean marriage by suggesting that a loveless marriage is somehow valid.

Edited February 16, 2013 by rockpond

[jwhitlock]

Heterosexual traits are already legally recognized. So it's not an exception, it's equality. I find Walker's argument much more compelling than yours.

Marriage was declared a fundamental civil right by SCOTUS (Loving v Virginia). That fundamental civil right is denied to a homosexual if you restrict it to someone of the opposite gender because they lack the ability to enter into a meaningful heterosexual relationship. I'm not sure why you would want to demean marriage by suggesting that a loveless marriage is somehow valid.

Try hard not to claim that I'm suggesting something, when I did nothing of the sort.

Well, at least you're being honest enough to recognize what the root of all this is. It's a demand that a specific trait be given some kind of recognized legal status (and your statement about heterosexual traits being legally recognized is odd, since I don't know of anything specifically stating that). It's basically social experimentation, to make an exception for a specific trait, while not making exceptions for other traits.

Walker's argument falls apart because of this trait / behavioral based reasoning. If he's going to be consistent, he has to carry it out to its logical ends. He doesn't, but simply makes a ruling for a special exception based on one trait. There's no compelling reason to make an exception, and he doesn't bother to look at the impact of his ruling, which will be to lead to a subordination of basic rights of others to this special exception status.

If you're into social experimentation without regard to what may happen down the road, then I'm sure you find Walker compelling. If you look at the clear evidence of where this is all headed, on the other hand, Walker's ruling was shallow and not well thought out - despite 138 pages of rationalizations justifying his decision.

[rockpond]

There's no compelling reason to make an exception, and he doesn't bother to look at the impact of his ruling, which will be to lead to a subordination of basic rights of others to this special exception status.

No compelling reason? I find this to be compelling:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

My belief in the 11th Article of Faith and D&C 134 are also my personal reasons for being in support of marriage equality.

How will this lead to the subordination of the basic rights of others?

[jwhitlock]

No compelling reason? I find this to be compelling:

My belief in the 11th Article of Faith and D&C 134 are also my personal reasons for being in support of marriage equality.

How will this lead to the subordination of the basic rights of others?

Your misinterpretation that the pursuit of happiness gives anyone the right to do anything they want is misplaced. The 11th AofC and Doctrine & Covenants 134 do not in any way condone social experimentation and special rights based on behavioral traits.

Since I've answered clearly and given the reasons why our rights will be subordinated, I'd suggest that you go back and read those posts again, rather than just asking this same question over and over and over and over again.

[rockpond]

Your misinterpretation that the pursuit of happiness gives anyone the right to do anything they want is misplaced. The 11th AofC and Doctrine & Covenants 134 do not in any way condone social experimentation and special rights based on behavioral traits.

Since I've answered clearly and given the reasons why our rights will be subordinated, I'd suggest that you go back and read those posts again, rather than just asking this same question over and over and over and over again.

Section 134 tells us that we should not impose our religious beliefs to "bind the consciences of men". Seems applicable to me.

I don't buy the loose "social experimentation" argument because you could go back and say that about every development our country has made. The growth of a nation and life itself are social experiments.

When you say "our rights will be subordinated" does the "our" refer to us as church members? I've read your case for that. My response to that argument continues to be that I don't see using fear of what might come to pass as an excuse to not do the right thing.

And what if the Prophet received a revelation that the Lord approves of same gender marriages and we are to welcome them into the church? Then what?

[jwhitlock]

Section 134 tells us that we should not impose our religious beliefs to "bind the consciences of men". Seems applicable to me.

I don't buy the loose "social experimentation" argument because you could go back and say that about every development our country has made. The growth of a nation and life itself are social experiments.

When you say "our rights will be subordinated" does the "our" refer to us as church members? I've read your case for that. My response to that argument continues to be that I don't see using fear of what might come to pass as an excuse to not do the right thing.

And what if the Prophet received a revelation that the Lord approves of same gender marriages and we are to welcome them into the church? Then what?

Since you keep tap dancing around the real issue, which is that this social experiment will impinge upon our (not only in our church, but others) religious rights and the rights of association, I'll note that your loose interpretation of "doing the right things" doesn't apply in this case. It is not the right thing to support SSM. It is not the will of the Lord. Your speculation about whether the Prophet will start receiving revelation from Satan is irrelevant. There are clear and real dangers associated with providing special privileges and rights based on behavioral traits. The government has and will enforce whatever agenda it feels is politically expedient for it to do so, without regard to religious or other exemptions.

The lame claim by SSM supporters that we are imposing our religious beliefs on others is a sham. Opening the door to SSM from a government licensing and recognition standpoint will eventually lead to government mandates concerning marriages by religious organizations. Enshrining homosexual behavior in our society as privileged and not subject to any discrimination of any sort - and that discrimination will be determined by the government and gay rights groups, thank you - will lead to economic, political, regulatory, and other types of sanctions against churches. There is a clear and real danger here, and simple denials of that agenda in the face of what's going on with the BSA, with government licensing, with past government sanctions against churches for purely religious beliefs that it didn't agree with, are disingenuous.

Social experimentation, while necessary, has its limits, and we are going to find that this particular social experiment is going to have some severe consequences, some intended, and some unintended.