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

[Ahab]

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

Why are you talking about contracts? I'm talking about marriage.

I'm fine with women entering into contracts with other women. I'm just against women marrying other women, because women should be marrying men. And yes, that is discrimination, and I am okay with that.

[RobertAC]

This is not a slam dunk for the liberals.

A breathtaking admission.

This is not a slam dunk for the liberals.

A breathtaking admission.

True. The court does look at the timing of its decisions. For example, Brown v. Board of Education did not end segregation. It was the tool that gradually brought it about. It took about four years for the the country to follow in step with an integrated society.

I expect the same to happen regarding gay marriage.

[cdowis]

What are those secular arguments?

Why do you think all societies has had only heterosexual marriages since recorded history. Even in societies which tolerated homosexual behaviour, such as ancient Greece.Perhaps they understood something that we have been unable to grasp. Anyway, awhile back I created a thread where I discussed secular reasons. Perhaps I wil look around and try to find it. It generated alot of discussion.

[cdowis]

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

OK, again this would not be an issue of discrimination -- each woman can enter a contract as long as it follows the law, but an issue of whether it is "reasonable" to have such a restriction on contracts. There are already age restrictions on contracts, as mentioned above. Does this pass the test of a "reasonable" restriction?

Edited February 4, 2013 by cdowis

[rockpond]

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.

I think my wife is happier with me subscribing to the view of marriage that I described. And I love it when I can make her happy so I will just continue to live in my ignorance of believing that marriage is synonymous with the covenant that I made to her and God.

[Ahab]

I think my wife is happier with me subscribing to the view of marriage that I described. And I love it when I can make her happy so I will just continue to live in my ignorance of believing that marriage is synonymous with the covenant that I made to her and God.

Just to be clear, I often use word "marriage" in that way too, just as I often use the word "church" to refer to a church building.

Technically, though, what you have is a marriage relationship, or a relationship involving marriage between you and your spouse, and that's what your wedding ceremony/ordinance was sanctioning by whatever rule of law was governing that type of relationship.

[smac97]

They're still restrictions on gender.

But the restrictions on gender apply to everyone, ergo, no discrimination.

That's one reason they don't pass legal scrutiny. Gender discrimination is gender discrimination.

That's not correct.

-Smac

[semlogo]

But the restrictions on gender apply to everyone, ergo, no discrimination.

That's not correct.

-Smac

Restrictions on mix-race marriage also once applied to everyone. That didn't save those restrictions from being overturned.

[semlogo]

OK, again this would not be an issue of discrimination -- each woman can enter a contract as long as it follows the law, but an issue of whether it is "reasonable" to have such a restriction on contracts. There are already age restrictions on contracts, as mentioned above. Does this pass the test of a "reasonable" restriction?

Age restrictions pass scrutiny due to issues of consent. Gender issues do not.

[Buckeye]

But the restrictions on gender apply to everyone, ergo, no discrimination.

Smac, would you consider any of these restrictions as "discrimination"? Assume they are applied to everyone.

• You can only marry someone of the same ethnicity
  
• You can only marry someone of a different ethnicity
  
• You can only marry someone who speaks the same language as you
  
• You can only marry someone who speaks a different language from you
  
• You can only marry someone born in the same calendar year as you
  
• You can only marry someone born in a different calendar year from you
  
• You can only marry someone with the same hair color as you
  
• You can only marry someone with a different hair color from you
  

As has been said 1000 times, the issue isn't whether a gay person is allowed to marry, but whether they can marry the person they love. If the law said "you can only marry someone born in the same calendar year as you", I would have millions of marriage options, but none of them would be the person I fell in love with.

Edited February 4, 2013 by Buckeye

[Ahab]

Age restrictions pass scrutiny due to issues of consent. Gender issues do not.

It's still discrimination against people because of their age, though, even if it applies to everyone who is that age.

What if you weren't considered to be "old" enough to marry the person you wanted to marry? How would you feel?

[Zeta-Flux]

The Grimace,

You wrote:

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.

As you've admitted, gender and physical attributes are two separate things. With current technology there is no way to transition from male to female. One can only approximate physical characteristics.

That said, I admit that any rule will have loopholes. We have rules on bathrooms. How do we similarly deal with "transgendered" people in those situations. This is an ongoing public policy debate.

But it can be a mistake to focus so much on the rare circumstances that we lose sight of the main goal. (Of course, what I think is a rare and perverse desire some judge might say is a civil right that the taxpayers have to pay for!)

[Ahab]

We have rules on bathrooms. How do we similarly deal with "transgendered" people in those situations. This is an ongoing public policy debate.

I deal with it by going into a stall, so that I'll at least have a little privacy. Or better yet, I'll just wait until I get home, if I can.

[Zeta-Flux]

Smac, would you consider any of these restrictions as "discrimination"? Assume they are applied to everyone.

• You can only marry someone of the same ethnicity
  
• You can only marry someone of a different ethnicity
  
• You can only marry someone who speaks the same language as you
  
• You can only marry someone who speaks a different language from you
  
• You can only marry someone born in the same calendar year as you
  
• You can only marry someone born in a different calendar year from you
  
• You can only marry someone with the same hair color as you
  
• You can only marry someone with a different hair color from you
  

As has been said 1000 times, the issue isn't whether a gay person is allowed to marry, but whether they can marry the person they love. If the law said "you can only marry someone born in the same calendar year as you", I would have millions of marriage options, but none of them would be the person I fell in love with.

Buckeye, you raise an interesting point. Of course all of those are discrimination. The question is whether they are illogical discrimination. After we, as a society, decided that discriminating on the basis of skin color is wrong, they made categories of how strictly they look at the type of discrimination.

For example, when it is a matter of race strict scrutiny is applied.

When it is a matter of sexual preference, rational basis was applied (until some recent rulings, which I think the Supreme Court is likely to pull back on that basis).

So, the legal question becomes: Is it rational to limit the definition of marriage to opposite gender couples?

In my opinion (admittedly, not as a lawyer, but as someone who has followed this case quite a bit) my impression is that if the judges follow precedent, and use rational basis review, Prop. 8 will stand. If, on the other hand, they decide that sexual orientation deserves strict scrutiny, Prop. 8 will be overturned.

So, to sum up, of course the rule is discriminatory, in the sense that it differentiates the two groups. The question is whether this is a rational grouping, or whether it is made out of bigotry or hatred. Whether marriage really is intricately linked to creating a culture of childbearing, getting men to make strong bonds with women and vice versa, etc... or whether it is simply about giving social benefits two two people who love each other.

[Ahab]

The question is whether this is a rational grouping, or whether it is made out of bigotry or hatred.

Of what? People can hate the sin but love the sinner. I hate (want to get rid of) ss sexual relations in this world because I know it is an evil act which prevents people from developing to their full potential and experiencing a fulness of joy in their own lives. I don't hate the sinner, though. Heck, I even used to think the sin was okay.

Whether marriage really is intricately linked to creating a culture of childbearing, getting men to make strong bonds with women and vice versa, etc... or whether it is simply about giving social benefits two two people who love each other.

As Forrest Gump said, maybe both are happening at the same time? Men with strong bonds with women, as spouses, are getting social benefits to each other who they love along with all of their posterity.

You have been removed for preaching.

[Buckeye]

Zeta-Flux, I am a lawyer and I can't say I have any more idea than you want SCOTUS will do. I do think we are in the process of homosexual discrimination becoming strict scrutiny, but we're not there yet (at least until May when the Court rules). That said, when we look back on this issue 30 years from now, we will see that the path to strict scrutiny for homosexual discrimination took much less time than the path for strict scrutiny for racial and sexual discrimination.

If you really need a prognostication, here's the best I can do: SCOTUS will uphold states' right to define marriage to exclude homosexuals, but will strike down Prop 8 on some other ground and will strike down DOMA in its entirety. There will not be majority agreement for anything but those three conclusions. In all, there will be at least three different opinions by the Court disagreeing on the appropriate standard to review.

Edited February 4, 2013 by Buckeye

[Zeta-Flux]

california boy,

The full brief is available here

From the table of contents, here are some of the things they argue.

1. Proposition 8 is a rational choice, rather than made out of prejudice or irrationality.

-It was a measured response.

-The debate is ongoing about what constitutes marriage, and this was a rational position to take as the debate continues.

2. The fact that religious voters went for Prop. 8 does not invalidate it.

-Values based judgements are not, a priori, unconstitutional.

3. Prop. 8 satisfies equal protection for reasons the 9th circuit did not consider.

-Rational basis is the correct level of review.

-Prop 8 recovers a definition of marriage more likely to sustain the institution

-Prop 8 protects the substantial expectation and reliance interests of married couples.

[i recommend the arguments starting on p. 17. They are quite cogent.]

Edited February 4, 2013 by Zeta-Flux

[Zeta-Flux]

Of what? People can hate the sin but love the sinner. I hate (want to get rid of) ss sexual relations in this world because I know it is an evil act which prevents people from developing to their full potential and experiencing a fulness of joy in their own lives. I don't hate the sinner, though. Heck, I even used to think the sin was okay.

That is the question. The two rulings given so far have ruled that the people of California were irrational in their decision to adopt Prop. 8. That it was a hateful act motivated out of bigotry, and not a rational decision. I don't agree with the judges, but that is what they have said.

As Forrest Gump said, maybe both are happening at the same time? Men with strong bonds with women, as spouses, are getting social benefits to each other who they love along with all of their posterity.

Yes, both can happen at once. But if we make the institution overly broad, and primarily about our own desires and the benefits we can accrue, suddenly the focus turns inward (what are my rights, how does marriage benefit me) rather than outward (how can I help my wife and children). Edited February 4, 2013 by Zeta-Flux

[Zeta-Flux]

Buckeye,

I hope we aren't on a path where the judiciary decides strict scrutiny applies. Especially as gay marriage has so many negative consequences on the institution of marriage in general, and on the well being of children in particular.

[Ahab]

That is the question. The two rulings given so far have ruled that the people of California were irrational in their decision to adopt Prop. 8. That it was a hateful act motivated out of bigotry, and not a rational decision. I don't agree with the judges, but that is what they have said.

And now I suppose we'll hear what some other judges will say.

Later we'll see what our Ultimate Judge has to say about their decision.

Yes, both can happen at once. But if we make the institution overly broad, and primarily about our own desires and the benefits we can accrue, suddenly the focus turns inward (what are my rights, how does marriage benefit me) rather than outward (how can I help my wife and children).

It should be both inward and outward, as we do it for us and for them.

[Buckeye]

Buckeye,

I hope we aren't on a path where the judiciary decides strict scrutiny applies. Especially as gay marriage has so many negative consequences on the institution of marriage in general, and on the well being of children in particular.

Long term I think it will come down to children. While the church is slow to acknowledge it (see Elder Oak's conference reference that we should "assume" gay families harm children), the reality is that we're starting to have a good data set to look at as to children raised in gay families. And they're doing just as well as kids in hetro families. If that trend continues, the courts will not have any option but to apply strict scrutiny and the church will continue to fall more and more out of touch.

[Zeta-Flux]

Long term I think it will come down to children. While the church is slow to acknowledge it (see Elder Oak's conference reference that we should "assume" gay families harm children), the reality is that we're starting to have a good data set to look at as to children raised in gay families. And they're doing just as well as kids in hetro families. If that trend continues, the courts will not have any option but to apply strict scrutiny and the church will continue to fall more and more out of touch.

I disagree. The latest data shows that the previous studies had self-selected skewed samples that are too small. In general, children fare much worse in homes with gay/lesbian parents. For one example see the New Family Structure Study (and the follow-up study). Or see Dr. Loren Marks' study.

Further, the data coming out of countries which have legalized SSM is nearly all negative. (In the beginning, some seemed to be positive, but again those sample sizes were too small and they didn't allow enough time for the negatives to appear, such as increased divorce rates among gays/lesbians, etc...)

[california boy]

Why do you think all societies has had only heterosexual marriages since recorded history. Even in societies which tolerated homosexual behaviour, such as ancient Greece.Perhaps they understood something that we have been unable to grasp. Anyway, awhile back I created a thread where I discussed secular reasons. Perhaps I wil look around and try to find it. It generated alot of discussion.

So you think that the best secular argument against gay marriage is that "we have always done it that way"? Hummm.

[bu11fr0g]

The problems are tricky:

There are several albeit rare disorders of sexual differentiation were the genitalia are ambiguous and/or the chromosomal and sexual phenotype are discordant. Historically the church allowed people to choose their sex.

[bu11fr0g]

You also need to have a reason why adopted sibs cannot marry each other.