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

[Nofear]

Haven't been following the discussion but here is a tidbit specifically addressed to the question of whether or not governments should be in the business of marriage and procreation: http://online.wsj.com/article/SB10001424127887323375204578270053387770718.html

For the record, I am fine with the government providing incentives for procreation (but it crosses the line if it chooses to punish procreation or not-procreation).

[ALarson]

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.

I agree.

I lived in California during the Prop 8 campaign and passage. I saw the tremendous involvement of the members, the sacrifices and the emotions. I know of members who gave their life savings and others who also gave a great deal.

I also know of many who stopped attending at this time (or later) because of the church's involvement. It was very polarizing. Some estimated that the church lost "tens of thousands" of members at this time.

I believe the church will not ask members to do this again. I also believe they have to know that same sex marriage is going to pass in many (if not most) states eventually. Some wonder why the church became so involved in California if they knew this. Was it a test of obedience for the members? Was it to publicly take a stand even though they knew it would eventually be overturned?

[Buckeye]

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?

CB, the main thrust of the church's brief is that religious people who voted for Prop 8 had a rational basis for doing so and the court should recognize the people's right to decide this issue. It's meant to defend the good intentions of the churches and religious people who voted for Prop 8.

On the whole, I think it's a pretty good brief in what it says. But there are glaring holes in what it does not address. Specifically, the brief fails to recognize that LGBT citizens who want to marry the person they love have the same desires underpinning traditional marriage - to create intergenerational ties binding them to their ancestors and to their children. The church's brief sloppily assumes that supporters of traditional marriage want to create family bonds and rear children, but that gay citizens do not want those same things. It also assumes, without any explanation, that one cannot support both traditional marriage and gay marriage.

Beyond this, a very interesting statement is the church's proposed definition of "traditional marriage" as "a family headed by two married parents who are the biological mother and father of their children" (Brief at p.9). The brief describes this as the "optimal arrangement". (Id.) Does this mean that optimal marriages are those in which the mother is also a "head"? I know some members who think the Proclamation on the Family says otherwise. More importantly, what does this mean for adoptive families? Are they not "optimal"? And if so, why would the church actively finance and support one type of sub-optimal family (adopters) and actively fight against other types of sub-optimal families (gay families; polygamous families)?

A few other interesting tidbits about the brief:

1. The brief was written by the church's legal counsel - Kirton & McConkie - not just for the LDS church but other religious groups. In fact the LDS church is not even the first named amici for the brief. Whatever our disagreements may be about the merits of gay marriage, I think we can all agree that there is a positive aspect to this process in that the church is becoming increasingly accepted by other christian denominations.
   
2. The brief makes no reference to US v. Reynolds - the watershed Supreme Court decision that said the government could restrict marriage on the basis of numbers (ie, monogamy ok, polygamy not). One would think that a brief seeking to uphold "traditional" marriage would at least reference the most significant prior case address "untraditional marriage" - particularly considering the LDS church's position of being the impacted minority in that prior case.
   
3. The brief does not address the rationality of those citizens who support gay marriage. The implication of this is that supporters of gay marriage are also good intentioned and have a rational basis for their view.
   

By filing this brief, the church opened itself up the court requesting they come to oral argument and potentially answer these and other questions. If someone on the SCOTUS wants to do that, it would make for some big fireworks. Could you imagine an attorney representing the church being asked to opine on Reynolds?

Edited February 4, 2013 by Buckeye

[semlogo]

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

That's not quite accurate. They are prohibited from entering due to gender if the other party is of the same gender.

Would you prohibit two women from forming an LLP, but allow one man and one woman to do it?

[rockpond]

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

Ah yes, the argument that homosexuals can, of course, marry someone of the opposite gender. It's true - they can.

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

How does that apply here?

I actually don't believe that minors can enter into ANY legally binding contracts. But I don't know that for sure (I think I've been clear about my lack of legal credentials) and so I didn't want to state an absolute.

My position, that you were asking about, is simply that it's my impression that we have established precedence for restricting legally binding contracts to adults (humans, since you highlighted it) who are mentally capable of such an agreement. I know that in my career, if I had someone who was a minor, not mentally capable, or not human sign a contract it would be disregarded.

So I don't see those attributes really in dispute with respect to marriage contracts. Polygamy as a possible "next step", I agree with. I don't, however, see a big lobby of people wanting to marry relatives but I don't deny that court case could be out there.

[wayfarer]

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

absolutely. my ancestors suffered immensely as a result of edmunds-tucker, and the supreme court in 1890 intermixed a majority religious definition on marriage on a minority religion that believed that polygamy was a requirement to entry into the highest heaven. it was wrong then, and it is wrong today.

you haven't answered the question i asked and you quoted: please first explain how granting a marriage license to a gay couple denies any rights from a heterosexual couple who desire to marry.

Edited February 4, 2013 by wayfarer

[Ahab]

It would also be good for the Church to try to set the record straight on what "marriage" actually is, at the outset. I know many people who think they know what marriage is but they're not quite there yet and need some enlightenment, from somebody.

It wouldn't necessarily need to be a lengthy discourse about it, though. All they'd have to say is something about how marriage is the sexual act itself of 2 people coming together sexually, with the wedding being the act that sanctions that marriage of 2 people.

Some people think marriage implies a life long commitment, or love, or devotion, or things of that nature, but those things aren't really at the heart of what marriage actually is. It's just that a marriage should include and involve all of those other elements to make it a good and righteous marriage.

[rockpond]

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."

Hmmm... I've made my share of mistakes but a drafting error on a brief sent to the highest court in the land? That's big.

[rockpond]

It would also be good for the Church to try to set the record straight on what "marriage" actually is, at the outset. I know many people who think they know what marriage is but they're not quite there yet and need some enlightenment, from somebody.

It wouldn't necessarily need to be a lengthy discourse about it, though. All they'd have to say is something about how marriage is the sexual act itself of 2 people coming together sexually, with the wedding being the act that sanctions that marriage of 2 people.

Some people think marriage implies a life long commitment, or love, or devotion, or things of that nature, but those things aren't really at the heart of what marriage actually is. It's just that a marriage should include and involve all of those other elements to make it a good and righteous marriage.

I've always been taught, and believe, that marriage is an eternal covenant between my wife, myself, and God. I didn't think it was just about sanctioning sex.

[smac97]

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.

Well, that's speculation that might be correct. Or not. Hence the lack of clarity I referenced.

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.

But since we don't know that, my comment about the reasons for the non-opposition being "unclear" appears more appropriate than speculation.

Having said that, submitting a brief, in this case at least because the work was done pro bono, is free.

I don't think Kirton McConkie works for free.

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.

Opponents of the Church would likewise trumpet the Church's silence as a tacit concession of defeat. I don't think the Church can take its cues from its opponents in this way.

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.

Agreed. But there are plenty of secular reasons for opposing same-sex marriage as well.

Thanks,

-Smac

[Ahab]

I've always been taught, and believe, that marriage is an eternal covenant between my wife, myself, and God. I didn't think it was just about sanctioning sex.

No, marriage isn't a covenant, actually. The word marriage is used in Plumbing, too, and it's not talking about any kind of a covenant. A marriage is a coming together of 2 things into one thing, like how a male plumbing part can join with a female plumbing part to form one part of a Plumbing pipe system. That's what a marriage is all about.

From God we're told that we should have a covenant with the one we marry and that we should be chaste with and devoted to our own spouses, and love and courtesy and service also a part of a good marriage relationship, but the marriage itself is the act of coming together of 2 things into one thing, and that act should be preceded by an ordinance/ceremony which sanctions that marriage relationship.

See, even you didn't have the right idea about what a marriage is, if you equated it to a covenant. Now I hope you know better.

[sethpayne]

I don't think Kirton McConkie works for free.

In this case they did.

States it in the brief.

[smac97]

That's not quite accurate.

It's quite accurate.

They are prohibited from entering due to gender if the other party is of the same gender.

Note what I wrote: "Nobody is prohibited from entering into a legal contract because of their gender. Homosexuals are entitled to enter into heterosexual marriages."

Nobody is being treated differently under the law. The restrictions on marriage apply to everyone, regardless of sexual orientation.

-Smac

[Calm]

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.

At the very least, I doubt they will insist the government subsidise the relationship. (I was going to add "just wouldn't be fair to the dog" but then I remembered I don't enjoy lawyer jokes all that much.) Edited February 4, 2013 by calmoriah

[Ahab]

It's quite accurate.

Note what I wrote: "Nobody is prohibited from entering into a legal contract because of their gender. Homosexuals are entitled to enter into heterosexual marriages."

Nobody is being treated differently under the law. The restrictions on marriage apply to everyone, regardless of sexual orientation.

-Smac

How about the angle that discrimination is okay in some cases? Some people act as if discrimination is always a bad thing, but I don't see it that way. Do you think there might be some benefit in explaining how it's okay to discriminate in some cases, as long as you upheld the same standards in all cases like that?

That's pretty much what we're saying here, I think. Men shouldn't marry other men. That is discrimination,and that is okay.

Trouble is, there are things like the protected class status, which kinda throws a wrench into the whole system.

[Calm]

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.

Age is important to provide for the health of both child and mother, too young of a mother can cause health issues as well as problems with ability to care for the child...again affecting health and longevity. If a child dies young or becomes dependant on the State as an adult, the purpose of procreation for the State is not achieved...all the rules are there to produce a productive citizen, they are all tied together.

The purpose of the government getting involved in procreation is to produce a future revenue producing citizenship. Someone has to be procreating these children as well as caring for them....relationship matters for both.

Edited February 4, 2013 by calmoriah

[Buzzard]

It would the height of irony if the court did use the Reynolds case to uphold Prop 8. Don't think it will come up, but President Woodruff would have a nice Spirit World chuckle if they did.

[Ahab]

The purpose of the government getting involved in procreation is to produce a future revenue producing citizenship. Someone has to be procreating these children as well as caring for them....relationship matters for both.

For governments of this world, yes, it probably does or would have a lot to do with producing revenue, but for kingdom's following God's government it's more about making it possible to receive a fulness of joy, or more joy than the married people would otherwise have without any children or the means to produce their own children.

Not only can married people (of the opposite sex) have more people in their own families, but with God's government they can also have more resources, both "human resources" and all of the resouces that can be produced by those people.

Money actually slows things down in this world, as far as both people producing resources and the resources people produce. In this world it takes money to get people to work and have access to the resources. In heaven money won't get in the way.

Edited February 4, 2013 by Ahab

[Calm]

The Church supports adoption because it is a more beneficial relationship for the child than the alternative...the parents abandoning the child completely or being unable to fulfill its basic needs as well as the at times crippling effect on the parents themselves if they are still children themselves emotionally, if not physically.

[Calm]

For governments of this world, yes, it probably does or would have a lot to do with producing revenue, but for kingdom's following God's government it's more about making it possible to receive a fulness of joy, or more joy than the married people would otherwise have without any children or the means to produce their own children.

not sure what this has to do with this thread which is very much about a government of this world.

[semlogo]

It's quite accurate.

Note what I wrote: "Nobody is prohibited from entering into a legal contract because of their gender. Homosexuals are entitled to enter into heterosexual marriages."

Nobody is being treated differently under the law. The restrictions on marriage apply to everyone, regardless of sexual orientation.

-Smac

They're still restrictions on gender. That's one reason they don't pass legal scrutiny. Gender discrimination is gender discrimination.

[semlogo]

How about the angle that discrimination is okay in some cases? Some people act as if discrimination is always a bad thing, but I don't see it that way. Do you think there might be some benefit in explaining how it's okay to discriminate in some cases, as long as you upheld the same standards in all cases like that?

That's pretty much what we're saying here, I think. Men shouldn't marry other men. That is discrimination,and that is okay.

Trouble is, there are things like the protected class status, which kinda throws a wrench into the whole system.

Women shouldn't enter into contracts with other women. Is that discrimination okay?

[california boy]

Have you actually read the Church's brief?

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

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

I have. I still haven't found any rational reason the church is using to support prop 8 except that it disagrees with it's religious beliefs and we have always done it that way. They do mention that opposite sex marriages are ideal in some peoples opinion for children but do not say that marriage should be limited to that kind of marriage, only that some think it is optimal.

Tradition does not seem like a valid argument when it comes to supreme court decisions. There are lots of traditions that we have abandoned in this country for the better. Segregration being just one.

Love to have you share what you found to be compelling in the actual brief. Perhaps you saw something I missed.

[Rivers]

Agreed. But there are plenty of secular reasons for opposing same-sex marriage as well.

Thanks,

-Smac

What are those secular arguments?

[Ahab]

not sure what this has to do with this thread which is very much about a government of this world.

You seem to be thinking one is exclusive of the other, as if this world can't be governed by God and his laws.

I don't see it that way, and part of my goal in life is to help facilitate God's will being done on this Earth as it is in heaven.