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

[california boy]

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.

So I take it you agree that the only argument the church could come up with is that gay marriage is against the churches personal religious beliefs. Do you really think the Supreme Court will uphold prop 8 simply because of religious beliefs?

[Zeta-Flux]

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.

Try reading the brief they filed. I'm sure it amounts to more than "it doesn't match our religious beliefs".

[changed]

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....

A rose by any other name.... China calls itself a people's republic, but is it? The dishonest use of a name is a great tool to confuse and trample over institutions. Isa 5:20.

http://www.lds.org/ensign/2013/02/balancing-truth-and-tolerance?lang=eng&query=legislating+morality

"Third, believers should not be deterred by the familiar charge that they are trying to legislate morality. Many areas of the law are based on Judeo-Christian morality and have been for centuries. Western civilization is based on morality and cannot exist without it. As the second U.S. president, John Adams, declared: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”^9"

Edited February 4, 2013 by changed

[california boy]

I couldn't find any legal argument to support prop 8 other than religious belief. Can you? Rather than all of these specious arguments that people like to bring up, it would be much more productive talking about actual legal arguments that will be used before the Supreme Court.

[Zeta-Flux]

I couldn't find any legal argument to support prop 8 other than religious belief. Can you? Rather than all of these specious arguments that people like to bring up, it would be much more productive talking about actual legal arguments that will be used before the Supreme Court.

That was my recommendation to you. Actually read the brief. ;-)

If you want I can post a few arguments from it.

[Darren10]

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.

Not if those means or its conclusion (the banning homosexual marriage) are declared unconstitutional.

[california boy]

That was my recommendation to you. Actually read the brief. ;-)

If you want I can post a few arguments from it.

I would love that. Thanks.

[rockpond]

Call me crazy (and I'm sure some here do) but in favor of providing some equality to our gay brothers and sisters, I'm willing to make the leap and take the risk that the Supreme Court will not allow a blind dog the privilege of marrying a lawyer who did not pass the bar exam.

[Damien the Leper]

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.

I agree. The government is in place to allow for religions to practice so long as no ones rights are being violated. Religion can have its opinion but the line must be drawn when religion wants to politically lobby.

[Damien the Leper]

Maybe the government can hand out marriage licenses to those who have a civil marriage. If someone wants a religious marriage, then the government is not obligated to hand out licenses.

[The Grimace]

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.

Fine - age, relationship, citizenship - all those are important. But save relationship, none are important to procreation. And if I'm not mistaken, relationship is important to protect the health of potential offspring and not to ensure that offspring are produced.

Let's talk gender. You have rightly separated gender from genitalia - I hoped someone would do that. What does that mean for the following:

1. A transitioning male-to-female or female-to-male?

2. A transitioned male-to-female or female-to-male?

3. A human being with male genitalia who does not identify with either male or female genders?

4. A human being with female genitalia, on hormones, but identifies as a male?

Now that you've introduced gender as the bar to hurdle, you've introduced a lot of gray area. I'm sure we can find many more examples, but let's see how these are handled and then figure out why marriage betwixt two men or betwixt two ladies ought to be barred.

[cdowis]

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.

So if the state denied a black person a driver's license because he is black (discrimination), he has not recourse to the court.

This is truly a silly argument.

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.

An alcoholic is not a protected class of citizens.

Yet another silly argument.

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

Not sure what that means. If the blind person is denied a driver's license, what exactly is his due process of law? Please remember, the state is NOT denying a marriage license based on his protected class, but because of the requirements of state law. Mixed vs same gender is not a protected class. The marriage license can be granted based on race, sexual orientation, etc etc, as long as the person is creating a qualified relationship == e.g. mixed gender, not closely blood related, etc.

Once again your argument falls flat on its face.

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

Read what I said above. Sexual preference is protected. A gay person ******************CAN********************************

apply for a marriage and it will be granted to them as long as the relationship qualifies under law -- no close blood relationship, mixed genders, etc.

You really don't get it, do you. Perhaps you are under more than one protected class.

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

Read Point 1.

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.

Now you are preaching to me??? Read what I wrote above. The issue is not about whether to grant a license to someone in a protected class, but the association requirements -- not closely blood related, mixed gender, etc.

Are you able to wrap your mind around that?

Edited February 4, 2013 by cdowis

[cdowis]

Now that you've introduced gender as the bar to hurdle, you've introduced a lot of gray area. I'm sure we can find many more examples, but let's see how these are handled and then figure out why marriage betwixt two men or betwixt two ladies ought to be barred.

Gender based on self-identification. Not a perfect solution but IMO the only practical one. One person must identify themselves as male and the other as female. Perhaps this will offer a resolution to the issue -- neither side likes the solution, but it is workable.

[smac97]

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...

Two quickie comments:

1. I think the quote from the Church's brief is a drafting error. I believe they intended to say something like this: "Proposition 8 is a measured response to the California Supreme Court's decision declaring the statutory definition of traditional male-female marriage unconstitutional as a matter of State law."

2. I think your Establishment Clause argument fails in virtually every respect.

Thanks,

-Smac

[The Grimace]

Gender based on self-identification. Not a perfect solution but IMO the only practical one. One person must identify themselves as male and the other as female. Perhaps this will offer a resolution to the issue -- neither side likes the solution, but it is workable.

Sounds like progress through loopholes, but hey, if it works, work it.

[smac97]

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.

The Church is already on record for its reasons for supporting traditional marriage.

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.

The reasons for the lack of opposition remain unclear. Nevertheless, I believe this was the result of a decision made by the Brethren after due consideration and prayer. The Church cannot be accused of apathy on this topic, so the lack of opposition in Washington State has to be attributed to something else.

Revelation, perhaps.

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.

I don't think a legal brief, one of dozens filed by other groups, will have an adverse effect on the Church.

Thanks,

-Smac

[smac97]

@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.

Legally, a gay person has the same ability to marry a person of the opposite sex as a non-gay person. I think you are wrong to suggest otherwise. A gay person may not have the desire to marry a person of the opposite sex, but that doesn't mean they do not have the right to do so.

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.

This is legally irrelevant.

And to deny an individual the right of marriage

You are missing the point. There is a question as to whether there exists a "right" to same-sex marriage. You cannot presuppose the very issue in dispute in order to dismiss arguments about that issue.

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.

By that reasoning, so are polygamists. So are participants in incestuous marriages, incestuous marriages, group marriages, etc.

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

Not true. There is no prohibition against conducting whatever religious rite you like. The point at issue is whether the state is obligated to recognize the relationship arising out of that rite.

Many countries do not recognize LDS sealings as civilly binding, which is why Mormons in such countries have a civil marriage along with their LDS sealing. Nobody is being deprived of their rights.

And by your reasoning, polygamists have a constitutional right to plural marriage. Do you concede that?

Thanks,

-Smac

[smac97]

Can you support this assertion?

Yes. There's plenty of case law about that. I'll provide it later.

How do you know the government holds this opinion?

I've read judicial opinions about it.

Are governments in the dog licensing business because it has an interest in procreation amongst the dog population?

No. Perhaps you could educate yourself about the topic a bit more before resorting to snarky non sequiturs.

Thanks,

-Smac

[smac97]

Currently, the requirement for a marriage licence in all states is based on genitalia. That's it.

That is not correct. Marriage has additional criteria, which I reviewed in the OP. Here they are again: 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).

Thanks,

-Smac

[smac97]

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.

Have you actually read the Church's brief? Here it is.

Have you read anything else that the Church has published about its position?

If you haven't, then educate yourself before trying to participate in a discussion about which you are uninformed.

If you have, then don't ask absurd questions when the answer is readily available.

Thanks,

-Smac

[smac97]

My thought was just that we can't legally prevent someone from entering into a legal contract because of their gender.

Nobody is prohibited from entering into a legal contract because of their gender. Homosexuals are entitled to enter into heterosexual marriages.

Whereas, for example, a minor cannot enter into many legal contracts because they are not a consenting legal adult.

So minors can enter into some types of contracts, but not others. Got it.

How does that apply here?

-Smac

[DavidB]

As I understand it, the Church has not been involved in a ssm issue since Prop 8. What the Church has done since prop 8 is demonstrate more outward compassion toward the gay community and taken a more direct stance on the members doing likewise.

The issue of "born this way" is entirely relevant to the a legal challenge against anti-gay legislation.

[sethpayne]

The Church is already on record for its reasons for supporting traditional marriage.

True.

The reasons for the lack of opposition remain unclear. Nevertheless, I believe this was the result of a decision made by the Brethren after due consideration and prayer. The Church cannot be accused of apathy on this topic, so the lack of opposition in Washington State has to be attributed to something else.

I don't think the reasons are unclear, they are simply nonexistent. Politically, California made strategic sense -- just as Hawaii made sense in the 90's. Victory in California *could* slow the tide. In this case, it may have accelerated the activity of activists in Iowa, Connecticut, and every other state that has made SSM legal since Prop 8.

I think, given general popular support for SSM in those states that the Church made a wise and prudent decision not to spend funds to beat legislation that was bound to pass.

Having said that, submitting a brief, in this case at least because the work was done pro bono, is free. As is sending letters to congregations encouraging them to vote one way or another on a given proposition.

Revelation, perhaps.

Sure. Or, political savviness. Perhaps a bit of both.

I don't think a legal brief, one of dozens filed by other groups, will have an adverse effect on the Church.

I somewhat disagree. It is true that a single brief, in isolation, would have no impact. However, this isn't just any legal brief. Plus, it just gives fuel to Church critics who want to paint it as homophobic. This isn't accurate, IMO, as I believe the systematic theology behind the Church's position on SSM is not based on "hatred" or "fear" of gays but rather, presents a rationale based on an eschatology which, if people took the time to learn, clearly shows that the Mormon position is completely rational within the framework of Mormon theological assumptions.

[Ahab]

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.

I haven't heard all the details yet but I hope they're going to be going at in from multiple angles instead of picking only one reason while trying to win it on only that reason.

As it is now I think they're going at it by saying it's reasonable for the State to insist on certain qualifications being met before a person has the right to marry, with opposite sex being required before people can marry.

They could also go at it based on the harm/loss from not being able to have their own children together, since it takes both a male and a female to create offspring.

And there are probably a few more reasons they could use to show why it isn't "good" for people of the same sex to marry. We need to get our best and brightest people going at this before this gets any more ridiculous.

[DavidB]

Have you actually read the Church's brief? Here it is.

Have you read anything else that the Church has published about its position?

If you haven't, then educate yourself before trying to participate in a discussion about which you are uninformed.

If you have, then don't ask absurd questions when the answer is readily available.

Thanks,

-Smac

The Church does not address the merits of the evidence offered, so reading the Church brief does not answer what the Church argument is against prop 8.

At most, the only argument made against prop 8 by the Church is "the will of the people", but the will of people must be over ruled when that will is out of line with the Constitution.