Prop 8 comment (that is now a Prop 8 post)

October 20, 2008    By: Blake @ 4:59 pm   Category: Mormon Culture/Practices

The website Mormons for Marriage (which opposes the church in its support of Proposition 8) has failed (or refused) to post my response that I wrote to Morris Thurston, so I decided to post it here:

Mr. Thurston: I have read your document responding to the Church’s 12 points. Let me say that I appreciate your taking the time to write, but ultimately find it to be misleading. Let me elucidate. First, a little about my background. I have practiced in the areas of Constitutional litigation and education law for approximately 23 years. I have represented LDSFS in several cases, though I haven’t done so in the last 10 years. I believe that I can assess your arguments based on my experience and knowledge of these areas. Let’s take them one-by-one:

1. Teaching about same sex marriage. You claim that passage of proposition 8 will not require teachers to teach that “same sex marriage is ‘just as good as’ as traditional marriage.” However, your response is both misleading and uninformed. Given that SSM is legal, you are correct that it follows that teachers will teach that same sex marriage is lawful. It won’t and cannot stop there. Teachers will be prohibited from making any distinctions between traditional and SSM. It therefore follows that teachers will be barred from stating that the State, e.g., has a greater interest in protecting traditional heterosexual marriage than SSM. The problem as I see it is that no distinction can be made between SSM and traditional marriage. Any student who expressed opinions regarding the distinction, for instance that that homosexual conduct is sinful, could possibly be regarded by a school district as engaging in hate speech. What is to stop that kind of inference? Does the law mandate that it be so treated? Of course not — but it leaves such responses as an open possibility. The implication easily arises that SSM is just as important and on equal footing with traditional marriage in all respects and no student or teacher can teach that there are distinctions of value or that homosexuality even within a “marriage” is a sin. That was the Church’s point as I saw and to that extent it is accurate.

2. The tax exempt status of churches may be challenged. You state flatly that this is a “false consequence,” arguing that the argument is based on a New Jersey case. In fact, it is easy to see how the challenge can and will arise. As you are well aware, the concern is actually based on Bob Jones University v. United States, 461 U.S. 574 (1983). For those interested, here is a short link: http://en.wikipedia.org/wiki/Bob_Jones_University_v._United_States It is easy to see how Bob Jones could be extended in California to deny tax exempt status to the Church in many respects (education, social services,etc.) in California if Proposition 8 fails. Here is how: the Ca. Supreme Court held that the right to SSM is a “basic and fundamental right” that is on par in every respect with traditional marriage. Those who deny “fundamental rights” to others can be denied tax exempt status. Nor is the LDS Church the only organization to express such concerns. See e.g., http://en.wikipedia.org/wiki/National_Religious_Broadcasters I’m surprised that you didn’t discuss this possible extension of the rationale of the Bob Jones case.

3. There is no concern that religious organization might be denied the right to originate adoptions. You argue that the Church misleads because it states that Catholic Charities was forced to shut its doors. The Church doesn’t state that. Further, there is a legitimate concern here. The State of Mass. would not exempt Catholic Charities from the demand that it perform gay adoptions. The Church looked at the statutory framework and how the Mass. Supreme Court had interpreted and expressed extreme concern that it would lose a costly lawsuit — and the mere requirement to defend its religious position was prohibitive for it.

You are correct that there are difference between LDSFS (whom I have represented) and the Catholic Charities — primarily in the refusal of LDSFS to accept government support. However, as you well know, the courts often search far and wide to find a way to interpret any connection with federal or state funding as receipt of such funds — and the tentacles of the government are far reaching. This concern is very legitimate. No, the case against LDSFS would not be identical to the Catholic Charities case, but the distinctions that you point to are far from dispositive and there is a very real concern that California would interpret its law much like Mass. thus forcing a legal showdown. However, unlike Mass., California has interpreted its State Constitution to establish a fundamental right and thus the case would be much stronger in California that it would have been in Mass.

You suggest that California’s already existing broad civil unions statute means that passage of Proposition 8 would have no effect on the outcome of such a case. You miss the fact that a statutory protection of equality between traditional marriage and a State Constitutional provision that has been construed to create a fundamental right will be interpreted very differently. The case against LDSFS would be much stronger if Proposition 8 does not pass — and in fact the concern will likely evaporate if it does. Your response is thus very misleading and shortsighted in my opinion.

However, the recognition that California already has a very broad civil unions statute that guarantees all of the same contractual and visitation rights as a marriage demonstrates that the battle is not over treatment or rights of same sex couples. The real issue is whether the State will bless the union of same sex couples as being just as valuable and morally legitimate as heterosexual couples. I take is as at least arguable, and in my view obvious, that the State has a much greater interest in fostering and protecting heterosexual relations and natural reproduction (by that I mean that mean and women often have babies when they get together). Proposition 8 allows the State to recognize that much greater interest while the novel and current California Supreme Court reading of its state Constitution does not.

4. You suggest that passage of Proposition 8 would have no effect on university housing. This is your most misleading claim. The fact is that it is easy to see how the Yeshiva University precedent would be adopted and extended in California unless Proposition 8 passes. That it hasn’t been tested to date doesn’t entail that passage of Proposition 8 would have no effect as you misleadingly contend. Your argument is a simple non-sequitur, i.e, it hasn’t been ruled on yet so passage of Proposition 8 won’t have an effect if it is ruled upon. That is just non-sense. The fact that the issue may not arise with a religious school is beside the point when we speak of state sponsored institutions. It may well change the requirement that an LDS student will be required to house with someone of the opposite or same sex given the equal protection arguments of the California Supreme Court.

5. We are largely in agreement that ministers who teach that homosexual conduct is a sin will not be charged with hate crimes — but because these rights are well-established under the United States Constitution and California is powerless to change them.

6. I don’t know enough to comment on the financial effect, but I am highly dubious that the revenues from marriage will off-set the tax-payer burden for benefits for room-mates. Further, you miss the point. The issue isn’t cost with respect to net government revenues, but the cost to private litigants who disagree with SSM.

I believe that you are also incorrect about the effect of passage of Proposition 8 on the North Coast Women’s Care case. You are correct that it was decided under California’s very broad anti-discrimination statues. However, if Proposition 8 passes, these statutes are likely to be read in pari materia with Proposition 8 and therefore the outcome may well be different. Passage of a new law has an effect on interpretation of existing laws and you well know. This fact points to a serious defect in your legal analysis throughout your response. You assume that if a case is decided based on the existing laws that Proposition 8 will not have any effect. It is a basic failure to acknowledge the effect on interpretation of existing laws when a new law is passed. This is the kind of argument that I find used in your response repeatedly and it is misleading and quite incomplete.

For these reasons, your analysis critically misleads in many respects and fails to engage in the relevant analysis at several critical points. The chief failing is the refusal to address how the passage of Proposition 8 will affect statutory and Constitutional interpretation in the future — the effect would be profound.

Now let me be clear — nothing I have said ought to be interpreted as a suggestion that there is anything inherently wrong with a person who has homosexual tendencies. Nevertheless, the claim made on this site that no homosexuals have a choice about their orientation is just dead-wrong. The scientific evidence established quite conclusively that there is in fact a continuum and many who have such tendencies can swing either way. However, there are likely some who have no choice about whether they have tendencies. However, they do have choice about their actions — such a distinction is fundamental to the gospel of Jesus Christ and the failure of this site to even acknowledge that fact is deplorable in my view. Notwithstanding my support for Proposition 8, nothing should deter us from accepting those who may have same sex attraction tendencies in full fellowship, with affirmation of love and support for them. If they choose to sin, then I am not called to judge, (I have plenty of my own sins to deal with).

I support civil unions — and I support them for all state sponsored ceremonies that establish contractual protections for relationships. I do not support state sponsored marriage of any sort and I believe that it in a world where folks are properly informed the institution of marriage will be seen as solely a religious rite. It therefore violates the 1st Amendment Establishment Clause for the State to perform marriages on par with religious rites. Some day we’ll make such a distinction and the issue can be resolved in that way.

126 Comments »

  1. You are way out there on many claims here. First for #1 the schools do not teach sex ed or marriage to small children. They do teach acceptance of all families (defined loosely as any group the child lives with) as a diversity measure and to be honest they should. Can you imagine telling one kid in the class their parent or head of household is a sinner or is unacceptable while telling another child theirs is acceptable? Really that is all that the schools are doing. They do this regardless of SSM so your first claim is not only misleading it is somewhat irrelevant to the whole issue. This is happening regardless of whether the state has gay marriage. We should look at this as a teaching moment.

    I do support the passage of limiting marriage to 1 man and 1 woman. I am against polygamy and this would beneficial. Also the same sex couples should have legislation that supports their relationship for what it is. Child custody, separation of assets, legal rights in health care should all be dealt with. They could clean up the laws for all couples and include protections for all couples who decide toraise kids together regardless of marital status. The children should be protedted regardless of what the people who brought them into this word do.

    Other points here are similar, the intent and your heart may be in the right place but why link things in that not expicitly linked to the issue.

    The truth today at BYU and throughout the church homosexuals are there living in the dorms going on missions and serving in the church. Many are struggling with being married to opposite sex partners. They are allowed and welcomed as long as they are not sexually active outside of marriage as the church has defined. Much that you are afraid of has been with us for 20+ years and the only ones that I can see that were hurt are the poor women stuck married to these guys.

    Comment by Bob W — October 20, 2008 @ 6:02 pm

  2. Blake, it appears your post has cleared moderation and appears on that site now.

    Comment by Phouchg — October 20, 2008 @ 6:26 pm

  3. How interesting. I completely agree with your conclusion, that the government has no place in the marriage business and should solely be involved in civil unions. Let the religious folk, ourselves included, dole out “marriage” certificates as we deem fit.

    But since we’re not there yet, I see CA’s SSM as a step in the right direction. Here we obviously diverge.

    Comment by peetie — October 20, 2008 @ 6:57 pm

  4. Phouchg,
    Could you post the link to the article as posted on the Mormons for Marriage site? I’d like to see how people respond on there.

    Blake,
    Very good article! I am very much in need of material like this being at law school. The church members here stand alone, and are quite frightened to even speak.

    Comment by Craig Atkinson — October 20, 2008 @ 6:59 pm

  5. Blake,

    Well written. Thank you. The only other point I would add is that in addition creating a new fundamental right to gay marriage the CA supreme court has created a new constitutionally protected suspect class: sexual orientation. This is very problematic in that, as you point out, sexual orientation is much different than race or gender. There is a continuum.

    Armed with a new fundamental right, and the newly created suspect class of sexual orientation, the CA Education Code statutes allowing parents to opt their kids out, will likely fall to constitutional challenges. I don’t see the litigation stopping with marriage.

    This debate has never been about marriage, rights or the like. It is about societal acceptance.

    Thanks again for a great post.

    Comment by Guy Murray — October 20, 2008 @ 7:13 pm

  6. Here’s the link to the comment at mormonsformarriage
    http://mormonsformarriage.com/?p=45#comment-622

    Comment by Paula — October 20, 2008 @ 7:38 pm

  7. Blake,
    I totally agree that the State should only offer civil unions for all, and marriage should be out of their jurisdiction. With that, doesn’t it set a horrible precedent to define marriage AT ALL in our constitutions? That means Prop 8 in CA and 102 in AZ (and the one in FL) are steps in the *wrong* direction. Regardless of the moral position, they represent using the law for social engineering. That seems like a dangerous precedent to set for a people with a history of government-inflicted persecution. If prop 8 passes, let’s hope the FRC doesn’t turn its teeth on proxy work for the dead in limited-access temples next. After all, if you can get a majority to agree that something is unnatural and immoral, you apparently can use the law to teach them the error of their ways.

    Comment by Clay Whipkey — October 20, 2008 @ 8:06 pm

  8. Bob W. I admit that you just lost me because your comment seems to distort what I say so badly. Where did I claim that schools teach sex ed to “small children.”? Certainly you agree that schools teach sex ed don’t you? In Utah it is contrary to law to teach a homosexual lifestyle. I know that I don’t want my children in public schools of any age being taught that homosexual relationships are just as valuable as traditional marriages. I don’t want them taught that any configuration of humans where children are present is a family as you suggest. I don’t want room-mates to be family members.

    I’m certainly not advocating that anyone teach that another child’s parents are sinners. I never stated anything to suggest that I did. However, I don’t want my children to be taught that there are no immoral kinds of relationships or that anything at all goes as long as two mature people consent.

    Since I support civil unions, I would agree that homosexual couples ought to have all of the intestate and contractual protections of others.

    Let me also state that I view homosexuals as a very vulnerable group and that we ought to go out of our way to love and accept them and see them as infinitely valuable children of our Father in Heaven. It serves us to avoid judgment and to simply accept. That doesn’t mean that homosexual conduct is no sinful — it just means we’ve all got enough of our own sins to deal with before we can judge.

    I certainly abhor any suggestion that I am suggesting that we should not fully accept homosexual couples among us and give extra support to those who choose to remain celibate — just like the faithful single people throughout the Church. However, I have never seen anyone come close to elucidating a coherent standard of sexual conduct where it is fine for homosexuals to engage in sexual relations but not for heterosexuals. I recognize that for heterosexuals there is at least the theoretical possibility of marriage. However, it doesn’t make any pragmatic difference for those singles who would love to marry but for whatever reason just haven’t. There is not one standard of moral conduct for heterosexuals and another for homosexuals.

    Interesting issues are raised for homosexual couples who enter into civil unions. I’m not quite sure how to address all of these issue. I believe that perhaps the Church ought to accept those who enter into civil unions into fellowship in the sense that they are welcome as members and their civil union ought to be viewed as superior to rampant promiscuity that generally prevails in the gay community. If homosexual couples have entered a civil union, then I can see perhaps allowing them to remain in fellowship and to partake of the sacrament though not attend the temple. Perhaps we could give them calling with the recognition that we’re all afflicted by sin and we are no better in this respect than anyone else. I’m still unsure how to address such issues.

    Comment by Blake — October 20, 2008 @ 8:30 pm

  9. “It is easy to see how Bob Jones could be extended in California to deny tax exempt status to the Church in many respects (education, social services,etc.) in California if Proposition 8 fails. Here is how: the Ca. Supreme Court held that the right to SSM is a “basic and fundamental right” that is on par in every respect with traditional marriage. Those who deny “fundamental rights” to others can be denied tax exempt status.”

    a) The CA Supreme Court did *not* rule that SSM is a “basic and fundamental right.” It ruled that equal protection under the law is a basic and fundamental right as guaranteed by the California State Constitution, and that any rights extended to certain Californians had to be extended to all Californians, absent a compelling reason not to. The CA Supreme Court ruled that there was no compelling reason to deny same-sex couples the marriage rights currently enjoyed by heterosexuals. And so the CA Supreme Court ruled that, for California to be in compliance with its own state Constitution, California needed to offer marriage to all consenting, of-age couples, or to none of them. That’s not the same as ruling that SSM is a “basic and fundamental right”

    b) As to tax-exemption: the LDS Church currently refuses to conduct marriages between, say, Jews, in its temples, despite the fact that it’s illegal to discriminate against Jews in our nation. Has the LDS Church lost its tax-exempt status as a result? Of course not. Neither has the Catholic Church in our nation lost its tax-exempt status for refusing to conduct marriages between divorcees. Neither have Orthodox Jewish churches in our nation lost their tax-exempt statuses for refusing to conduct interfaith marriages. And neither, for that matter, has a single church in Massachusetts lost its tax-exempt status for refusing to conduct a same-sex marriage in the 5 years that it’s been legal there.

    Churches always have enjoyed 1st Amendment protections of a level surpassing those of other institutions in this nation, and that’ll continue regardless of the outcome of Prop 8. Your church’s tax-exempt status is not threatened.

    Now then, when it comes to faith-based institutions which receive public funding… yep, generally-speaking, if they’re gonna take government money (like Bob Jones University) they gotta adhere to the government’s non-discrimination rules. Those non-discrimination rules exist regardless of the legality or illegality of same-sex marriage. If you pass Prop 8, it won’t make discrimination against homosexuals suddenly more legal than it was before November 4th. All faith-based institutions have to do, if they wanna discriminate with impunity, is do like the Boy Scouts of America and refuse public funding.

    Patrick Meighan
    Culver City, CA

    Comment by Patrick Meighan — October 20, 2008 @ 8:45 pm

  10. Parick Meigham: You are wrong about the California holding. The first issue addressed by the California court was labeled: “the nature of the right to marry” (beginning on page 5 of the decision. Based on this unfounded assumption of “a right to marry,” the court went on to hold that the right is substantive. The court states: “we conclude that, under the state’s constitution, the constitutionally based right to marry properly must be understood to encompass the core of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.” (p. 6)

    So I believe that you have failed to read the case carefully. Indeed, it was only the finding of a basic substantive right to marry (created for the first time by any state in this decision) that allowed the California court to override a legislative process and democratic initiative process. That is the most disturbing aspect of this decision to me. For the first time, instead of marriage being a privilege that the legislature can define and decide which relationships the State has an interest in protecting, the right to marry is now a substantive right that cannot be redefined by either the people or the legislature. So you have just missed the most trenchant and salient feature of the court’s “rationale” and holding.

    I agree that the Church hasn’t lost tax protection though it doesn’t extend the right to a temple marriage to Jews — of course. But since marriage is now a fundamental right, the ability to make distinctions is problematic. BYU students receive government grants. Church members receive tax breaks for donations. These kinds of entanglements have been construed to be receipt by the institution of tax funds in Title IX cases and it isn’t hard to see that such reasoning could reach the Church to disqualify LDSFS. So your argument misses the point. I am saying that failure to pass Prop. 9 could result in such extensions, not that it inevitably must as you seem to want to pin on me. Refusing public funding is a lot more difficult than you seem to think in a world where any receipt that may in some way benefit the institution, no matter how tenuous, can be read as receipt by the institution.

    Comment by Blake — October 20, 2008 @ 9:09 pm

  11. BJU – a notorious case.

    Hey Blake, when I have the government hammering on me as a pastor in S.E. Idaho, may I hire you? ;)

    Comment by Todd Wood — October 20, 2008 @ 9:51 pm

  12. that allowed the California court to override a legislative process and democratic initiative process.

    This is not necessarily a bad thing. As a matter of fact, that’s what supreme courts do for a living. Reasonable minds can debate the merits of a particular decision, but the sky is not falling when the California Supreme Court does its job.

    Comment by Peter LLC — October 20, 2008 @ 11:40 pm

  13. Peter: What we have is simply the California Supreme Court creating a right ex nihilo without precedent and without any language in the document these judges pretend to be reading. In one move that has far reaching legal consequences, the California court made itself the legislature to determine the scope of “the right to marry” that had never before existed. There is nothing in the language of the California Constitution to suggest such a right. It is essentially a coup of the legislative and democratic process. You may not regard that as “all that bad,” but those of us who prefer judges to actually read the documents they interpret, to cite the cases they say provides a precedent, and to acknowledge the legislative branch of government have grave concerns.

    You may not see that as a bad thing — but what are the restraints on such unfettered power? It means that four judges think their opinions large social issues matter more than the electorate of the state of California. Such judicial arrogance vitiates the democratic nature of the American system of government. Their action is not only judicial activism at its most extreme, but flies in the face of longstanding jurisprudence regarding marriage as a state (legislative) defined privilege rather than a right. The courts of New York and Ohio demonstrated appropriate restraint by finding that marriage is not a right but a grant of protection to certain kinds of relationships that the State has an interest in protecting.

    Indeed, the California court went even further than finding a substantive right to marry. It also found a fundamental right to define a family as anything that one wants: “As past cases establish (here asserted without any citation to cases), the substantive right of two adults who share a loving relationship to join together to form an officially recognized family of their own — and if the couple choose, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.” (p. 7)

    That sounds good, except it is nonsense. It just isn’t true that any two adults who love each other can marry and form a family — California is about to have a lot of kissing cousins having children if this language means what it clearly says. Persons who have certain DNA and communicable diseases can be denied such a “fundamental right” under California law despite the Court’s political rhetoric masquerading as judicial reasoning. Further, there is no prior precedent for such a far reaching conclusion.

    So the California court wasn’t doing the job of a court, it has become a super legislature that usurps the democratic process. Proposition 8 is the proper response to such judicial arrogance.

    Comment by Blake — October 21, 2008 @ 6:04 am

  14. The fundamental right to marry was established in many previous US S.Ct. decisions. The CA S.Ct. used this well-understood federal mandate to decide that the Federal Fundamental Right exists in the CA constitution, and that it extends to all consenting adult couples under the CA Constitution in light of the legislature providing near equality with everything but the name. In other words, if the M word matters to you, then it should get to be used by others.

    The CA S.Ct. didn’t override the legislative process, the governor did! The CA legislature twice passed gender neutral marriage in three years, but the governator vetoed it. Now Arnold is against prop 8.[He has such high principles--NOT!] So the educated and considered will of the people through their legislative representatives was thwarted! I trust the legislature to protect rights more than a plebiscite. And while that’s technically un-democratic, America has always recognized the need for the minority to be protected from the tyranny of the majority. LDS should certainly embrace this, as the mob’s vote might take away your rights next, especially when a bigger international organization pours millions of dollars and scary lies into the mix. The weak argument defaults to the scare tactic of “Won’t someone please think of the children!” == Anita Bryant, Helen Lovejoy. That says something about what the pro-8 hierarchy thinks about it’s own arguments.

    Comment by Marc Luxe — October 21, 2008 @ 6:44 am

  15. Marc: Perhaps you could actually cite one or two of these supposed cases that establish marriage as a fundamental right for which legislatures cannot define the scope? You’re long on assertion and very, very short on anything to back your fallacious statement. Read the New York and Ohio cases for a lengthy discussion of these issues.

    Perhaps you missed the fact that the California legislature established an initiative referendum process and the people of California voted by a fairly large margin to establish a statute that defined marriage as consisting only between a man and a woman? It was that process that the court ignored — and it is a process fundamental to democracy as we know it.

    I recognize that truly fundamental rights enjoy protection no matter what the popular vote is (and that is how it ought to be). However, that is not what happened here. The California court created a new “fundamental right” out of nothing but its strongly held opinions that had never been recognized before so that it could hijack the public discussion of this very important social and moral issue.

    Comment by Blake — October 21, 2008 @ 7:09 am

  16. The reason why government involves itself in marriage, and not just in civil unions, is because traditional marriage has demonstrated itself to be useful to society. It has ensured permanence, continuity, and the ability to create the next generation and then transmit society’s mores to that generation successfully.

    Here with SSM, we have people insisting in giving equal recognition to a union that neither offers nor affords any quantifiable benefit to society. It only benefits those individuals involved in the relationship. Where is the benefit for society to equate SSM with traditional marriage? It isn’t there.

    As for sex education in schools at any age, the problem with it is it instructs in sex, but not in intimacy nor enduring relationships. Suddenly, we have a sex-crazed society, with groups that want to be equally recognized with traditional marriage. Whether it is SSM or other more extreme groups, like NAMBLA, we could choose to draw the line almost anywhere, and still there would be people screaming for “their rights.” But what value would there be for society to accept NAMBLA-like relationships? And so, given such an extreme, how far do we wish to move away from the standard that has worked for generations to promote and benefit society, and has scriptural foundation?
    I’m amazed that we live in such a society today that insists on having so many individual “rights” that do not benefit society as a whole. Medical prescriptions, medical insurance, social security, welfare, entitlements, etc., are all part and parcel of this same dread disease, which will lead us away from being principled people seeking to better the next generation, and only focus on “me.”

    Comment by Gerald Smith — October 21, 2008 @ 7:32 am

  17. Gerald: If gay couples are allowed to adopt, then it seems to me that the State has an interest in protecting and stabilizing such relationships. The purpose of recognizing marriage has always been fundamentally to protect spouses who may have relied for support on the other spouse and the children of such a union. While the state has a much greater interest in promoting heterosexual relations to insure the perpetuation of society, it seems to me that it has sufficient interest to want to protect gay relationships to the extent adoptions or children from previous heterosexual marriages are involved.

    Comment by Blake — October 21, 2008 @ 7:36 am

  18. I have looked into the background of Mr. Thurston. Either he or his supporters among the anti-8 lobby have misrepresented his credentials. He is not a professor at the BYU law school, only an adjunct professor, which means he may teach one class. This is a big difference, and should be borne in mind when considering his credibility.
    Mr. Thurston retired as a lawyer who specialized in intelectual property law with the law firm of Latham and Watkins in their Orange County Office.
    He does not have a background in family law, education law or any other subject along these lines that would make him qualified to comment on this debate.
    More importatntly in many ways he lacks a background in religious litigation law.
    Mr. Thurston has made major conclusions that are clearly colored by his experience as a corporate attorney and have no place when we are talking about non-profit religious organizations. Catholic Charities in Boston did not have the reserve to go after appeals on the issue of keeping up their adoption services. Mr. Thurston might as well compare the defense of OJ Simpson to that of your averge Joe and argue that OJ’s aquittal shows the system is fair for everyone.
    Mr. Thurston has also ignored the overwhelming anti-religious bias in the courts. He fails to understnad what Employment Division v. Smith has done to religious freedom, since he was not in that field and recieved his JD 20 years before the horrible decision was handed down.
    Mr. Thurston and his supporters try to present him as an expert on this subject, but he has no credentials.
    He does not understand how the law is a teacher, nor does he factor in what the opposition to proposition 8 by the California Teachers Association means.
    He also ignores the fact that most parents do not have law firms on their sides, they are not rich like his clients have normally been. To stop the use of the schools for direct propaganda in favor of same-gender marriage would require some recognized basis of objection. Since the California Supreme Court has unanimously held that a doctor can not refuse to perform artificial insemination to an unmarried women, and could not even when marrital status was not a undistinguishable category in California law, what will parents use to at least claim they should be notified before their children are taught about same-gender marriage.
    If Mr. Thurston was really aiming at getting balance and truth he would attack the unfounded claims about equal rights being at stake if Proposition 8 passes. Instead he has chosen to attack the Pro-proposition 8 campaign.
    I for one support the freedom of religioun of all groups. Just because Latter-day Saint activities may not be curtailed by Prop 8 initially, does not mean that I will sit back and let the government of California deney rights to Lutherans and other religious groups that run schools in California.

    Comment by John Pack Lambert — October 21, 2008 @ 9:13 am

  19. Blake,
    Your point about the schools interpreting what is not required by the law is well founded.
    We just need to turn to some of the cases of teachers suppressing religious expresion at schools in New Jersey to see how this happens. I am indeted to the Becket Fund for learning of this. At one point there was a gift exchange in a kindergarten or first grade class in New Jersey. One student was handing out candy canes that had messages along the lines of “Jesus loves you”. When the teacher realized this she proactively intervened to stop the handing out of messages.
    Thus, it is the view at least of some teachers that the schools have a duty to forcibly repress religious expression. This is a clear violation of the first admendment, however many teachers have misguided notions on what is and is not acceptable on the part of students.
    The pernicious doctrine that what students communicate in school is somehow endorsed by the school and thus the school had the right and duty to censor it is alive and well in this country. Despite the suprme court having stated that “students do not check their rights at the school house door”, this is not really believed in on the part of most teachers and administrators and instead they advocate a view that they should force all students to reflect the values and goals of the school in their in school speech.
    This is a situation that would easily lead to condemnation of a students saying “God only supports marriage between a man and a woman” as hate speech.
    What Blake understands but Mr. Thurston fails to grasp is that the implication of laws goes far beyound the words involved.
    The theories used to overturn Proposition 22 and the rhetoric of the pro-same-sex marriage movement in San Francisco indicate no halt to attacks on traditional morals until they have been classed as hate speech.
    If Mr. Thurston truly believed in truth, he would attack the anti-8 crowd for their representing the supporters of 8 as bigots.

    Comment by John Pack Lambert — October 21, 2008 @ 9:25 am

  20. It was that process that the court ignored — and it is a process fundamental to democracy as we know it.

    I disagree. With only 16 states having an initiative process by which to propose constitutional amendments, one can hardly speak of a process fundamental to democracy as we know it.

    Besides, the supreme court judges did not ignore the process–they responded to it. It’s not like your arrogant judges are trying to alter natural law or something. It just takes a token refundable deposit, some signatures and a “reasonable probability [that] the initiative measure will eventually be submitted to the voters” to put a measure on the ballot to change the California constitution. I won’t argue that Californians didn’t approve Prop. 22, but neither am I going to underestimate the power of the agenda-setter in influencing the outcome of a legislative process.

    Comment by Peter LLC — October 21, 2008 @ 9:30 am

  21. What Blake understands but Mr. Thurston fails to grasp is that the implication of laws goes far beyound the words involved.

    Unintended consequences cut both ways.

    Comment by Peter LLC — October 21, 2008 @ 9:31 am

  22. One argument that, frankly, mystifies me is the argument about teaching gay marriage in the schools. Years and years (and years) ago when I was a public schoolchild in California, I don’t recall marriage really ever coming up, especially not in any normative manner. But frankly, I don’t remember any descriptive uses of marriage, either. (I know, I know: my friends had parents. Some were together, some were divorced, presumably some were cohabitating unmarried. But my friends’ family situations weren’t relevant in my classes, unless one of them was having a birthday and a parent brought in cupcakes, in which case, that parent was definitely cool.) But seriously, in my 13 years in California public schools, no teacher ever commented positively or negatively on the fact that I had two opposite-sex married parents, and none encouraged me to or discouraged me from dating some of the opposite or same sex.

    At least, not until we started reading Shakespeare. And if rejecting Prop 8 is going to force schools to edit the Bard, well, there’s probably something more fundamentally wrong in the world than the definition of marriage.

    Comment by Sam B. — October 21, 2008 @ 9:38 am

  23. Blake, Thanks for this post. I am a bit confused on one point, however, and hope you will help me.

    Suppose you get your wish: the state refuses to recognize marriage at all and instead recognizes only civil unions (of all sorts). How does that not put religious adoption agencies in the same bind as Catholic Charities in Mass? I’m picturing an agency that currently only allows married couples to adopt; how would the state/courts view such a rule once the state is blind to the term “marriage”?

    Comment by BrianJ — October 21, 2008 @ 9:55 am

  24. Blake, I think I understand your point that because the California court fully articulated marriage as a substantive, fundamental right, Jewish, Catholic and Wiccan couples may now sue the LDS church with abandon, and that by passing Prop 8, we might at least stop gays and lesbians from doing so. What I don’t understand is how you see the court making that decision out of whole cloth. Beginning on page 49 and going at least 20 pages the court cites numerous past cases going back as far as 1948. I thought that the court provided a thoughtful, well reasoned case and provided substantial precedent for holding marriage as a fundamental right. So I’m interested in why you say that the California court created a new “fundamental right” out of nothing.

    Comment by Steven B — October 21, 2008 @ 10:12 am

  25. One student was handing out candy canes that had messages along the lines of “Jesus loves you”. When the teacher realized this she proactively intervened to stop the handing out of messages.

    If I had been that teacher, I probably would have intervened, too, especially if I had been aware that not all of the families with children in that class were Christian. This could be seen as an attempt to indoctrinate or proselytize, and might very well have been objected to by some of the parents when the candy canes reached the childrens’ homes.

    This is a situation that would easily lead to condemnation of a students saying “God only supports marriage between a man and a woman” as hate speech.

    Well, let’s think about this. In a taxpayer funded school, should there be an assumption made that A) there really is a Supreme Being who can be referred to as “God”, and B) Christian beliefs about God (which even differ between Christian denominations) are correct, while non-Christian concepts of a Supreme Being are not, and C) all of the childrens’ families who might be exposed to this idea subscribe to these Christian beliefs. This surely isn’t hate speech, but it sure contains a bunch of unstated assumptions. At the very least, the statement should be qualified by prefacing the statement with “Some religious believers are taught and believe that…”.

    Now, if you want to create a school not funded or supported by the taxpayers where teachings like “God only supports marriage between a man and a woman” would find complete support from all of the families whose children attend that school, that is your right. But you don’t have the right to insist that your religious viewpoint be taught in public schools.

    Comment by Mark N. — October 21, 2008 @ 10:20 am

  26. Now, if you want to create a school not funded or supported by the taxpayers where teachings like “God only supports marriage between a man and a woman” would find complete support from all of the families whose children attend that school, that is your right. But you don’t have the right to insist that your religious viewpoint be taught in public schools.

    Nor, apparently, would you have the right to withdraw your own tax contributions from those public schools in order to educate your own child as you saw fit.

    Comment by JimD — October 21, 2008 @ 10:34 am

  27. Blake, please forgive the snarky tone of my comment above, I really do value your opinion.

    Comment by Steven B — October 21, 2008 @ 10:44 am

  28. Dang, I meant to say “insight” rather than “opinion.” (I hate being “writing challenged.”)

    Comment by Steven B — October 21, 2008 @ 10:45 am

  29. Blake writes,

    Nevertheless, the claim made on this site that no homosexuals have a choice about their orientation is just dead-wrong. The scientific evidence established quite conclusively that there is in fact a continuum and many who have such tendencies can swing either way.

    Yes, and if you just ignore the contradictory scientific evidence, the claims are very conclusive. I suppose the question is, which studies do you favor?

    This is not a helpful argument to those like me who are already confused about “scientific” claims. When scientific results are coopted by society to support one claim or another, then the science that might legitimately have had some significance becomes just as meaningless as the roar of the crowd. My science cancels out your science.

    Blake:

    However, there are likely some who have no choice about whether they have tendencies. However, they do have choice about their actions — such a distinction is fundamental to the gospel of Jesus Christ and the failure of this site to even acknowledge that fact is deplorable in my view.

    That kind of argument is truly incontrovertible, and helpful to confused people like me who are trying to make up our minds on these issues.

    Comment by Jim Cobabe — October 21, 2008 @ 10:52 am

  30. Full disclosure: I am related to Morris Thurston.

    #18, said: “I have looked into the background of Mr. Thurston. Either he or his supporters among the anti-8 lobby have misrepresented his credentials. He is not a professor at the BYU law school, only an adjunct professor, which means he may teach one class. This is a big difference, and should be borne in mind when considering his credibility.”

    In Morris Thurston’s original “Response to Six Consequences” memo he represented himself as follows:

    “Morris Thurston received his undergraduate degree in political science from BYU and his law degree from Harvard Law School. He recently retired as a senior partner with a global law firm where he specialized in litigation and intellectual property law. He is a legal consultant to the Joseph Smith Papers Project and an adjunct professor at BYU Law School and co-author (with his wife) of the recently-published book “Breath Life into Your Life Story: How to Write a Story People Will Want to Read.” He is an active member of the LDS Church.”

    Morris has never represented himself as a “BYU Professor”. Unfortunately, both the pro-8 and anti-8 lobby has misrepresented him in various ways. He has worked diligently to correct the record on both sides, but once misinformation is “out there” it is difficult to reign in.

    To avoid further confusion, more than 10 days ago Morris had the sentance referencing his involvement with BYU as an adjunct professor and his work with the JSPP removed from the “Response to Six Consequences” memo (and websites that have published the memo) so it would not be used erroneously by either side.

    Politics is dirty business, and both sides are not immune to twisting information and “using” people to score points against the other. Some on the anti-8 side seem to want to position Morris as an “LDS Gay Marriage Crusader”, and some on the pro-8 side are attempting to write him off as a disgruntled apostate. Neither caricature is true.

    His goal from the beginning has been to address the legal arguments for and against Gay Marriage. He has never argued that there aren’t reasons to oppose Gay Marriage, nor has he lobbied for or against the amendment itself. And, contrary to the current press release making the rounds, Morris has never commented on the “Yes on 8 ads”. His public statements since the beginning have almost exclusively been directed towards the misleading legal arguments in the “Six Consequences” memo.

    I credit Blake for having the class to respond to Thurston’s arguments, and not attacking the person.

    Comment by Matt Thurston — October 21, 2008 @ 11:21 am

  31. Mark,
    The state does not have the right to intervene to proactively stop religious expression.
    This is a violation of both the free exercise and the free speech statutes of the First Admendment.
    By intervening and making a statement that expressions of Christian views are not allowed the state has set itself up as the enemy of religion, which is not allowed.
    The state can not take the right to ban expressions based on their nature in a public forum. That is a violation of the basic principals of the first admendment.
    To quote Justice Rehnquist “you do not have a right against being bothered in a public forum”. If you dislike the statements and expressions of others that is your problem, but if they are being done by private individuals your disliking them can not be used as grounds to suppress them.
    Your views convince me more than ever that Blake is right and we do not want to see what will happen if Proposition 8 fails.

    Comment by John Pack Lambert — October 21, 2008 @ 11:49 am

  32. Matt,
    As I have said from the beganning, if Mr. Thurston does not in fact want to be an opponanent of Proposition 8 and to see it defeated than why has he solely attacked the logic and issues brought up by the Pro-8 lobby?
    He has definantly not put his full effort and resources behind the pro-8 campaign, and despite his insistence that there are legitimate resasons to support 8, and legal consequences to its failure to pass, I have yet to see him explain such.
    If he wants to be percieved as more than a destructive critic who is a close ally of Gavin Newsom he will have to actually put out a piece that explains what he views are the pluses to Proposition 8 and why the church supports it instead of spending his time attacking those who are trying to support it.
    I still stand by my view that he does not understand the situation that religious institutions are in.
    I will state some ideas more forcefully. If the state disbands your activity then they disband your activity. You do not have to appeal it to any court, let alone to every court for the state to have done so. The fact that you were able to carry on an activity with state support for decades and now have the state banning you from doing so means that things are changing, and when it is the end of an adoption service, it means things are changing for the bad.
    I also think it is disengenous of Mr. Thurston to fail to consider that the reason Catholic Charities did not appeal is that their lawyers knew the judicial attitudes in Massachusetts enough to know they had almost no chance of winning.
    I have yet to see any evidence that Mr. Thurston understand the effects of Employment Division v. Smith on all aspects of law dealing with religious issues, or even that he understands that while businesses have an ok record of winning when they take government agencies to court, religious organizations almost always loose, and attempts to invoke religious freedom have a long history of being defeated.
    Pornographic businesses have fared far better in the courts than have religious organizations, and this fact should cause people to pause and consider what types of litigation an action will lead to before they do it.
    Although it is true that the case of the doctor in California did not directly flow from the California Supreme Court’s ruling on same-gender marriage, it did indicate that the court has no judicial restraint.
    It is time for the people of California to reassert their power and pass Proposition 8.
    On the court’s precedents citied, they erred because all the precepdents really dealt with equal treatment based on race. This is a doctrine that was enshrined in the United States constitution by the 14th admendment.
    The problem with interracial marriage is not that it limits a persons ability to marry but that it makes governmental treatement decisions based on race, which is not allowed under the 14th ademendment.

    Comment by John Pack Lambert — October 21, 2008 @ 12:06 pm

  33. Blake, can you explain more precisely what you mean by the right to marry being “created ex nihilo” in In Re Marriage Cases? In Perez v. Sharp, a case that struck down anti-miscegenation laws (this was many years before SCTOUS’ Loving), the CA Sup Court also held that marriage was a fundamental right. In fact, In Re Marriage was explicitly based heavily on Perez. Here is a quote from Perez:

    Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means.

    Maybe I’m misunderstanding precisely what you are claiming when you say they newly declared marriage to be a fundamental right.

    Comment by sister blah 2 — October 21, 2008 @ 4:39 pm

  34. John #32, I really can’t speak for Morris. I was surprised and saddened by your presumptuous attempt to professionally discredit him in #18, so I tried to set the record straight on at least one of your assertions. Responding point-by-point to your other assumptions in #18 would just legitimize them. Instead, I’ll simply point out the obvious: You cannot possibly know anything about Morris’s legal background, legal areas of expertise, or career at Latham & Watkins, nor can you know how much research and peer review (by both LDS and non-LDS lawyers and scholars) went into the writing of his “Response to Six Consequences”. The document, as well as his two published responses to critiques of his Response (i.e. the Kearl and Duncan critiques) must stand on their own merit. Morris Thurston is not on trial, the legal arguments for and against Prop 8 are on trial. Blake has engaged the arguments, you have engaged the person.

    Comment by Matt Thurston — October 21, 2008 @ 4:44 pm

  35. Steven B. “So I’m interested in why you say that the California court created a new “fundamental right” out of nothing.”

    I didn’t take your comment as snarky, but as a legitimate question. None of the precedents cited by the California court treat marriage as a fundamental substantive right that the legislature cannot define. The prior cases, without exception, recognized that the legislature could choose which relationships the State wants to protect and then on equal protection grounds held that similar protections could not be denied. In the In Re Marriage Cases, however, the Court for the first time recognized a substantive right that the legislature could not modify or define otherwise. Moreover, there is nothing in the language of the California Constitution itself to suggest such a substantive and fundamental right. Thus, it was created ex nihilo without textual support and without any real precedent. Interracial marriage cases (that are cited by the court) are not a legitimate precedent because the scope of marriage always remained up to the legislature and protected traditional purposes for marriage to protect children, a supported spouse and to reject a denial of equal protection under the Federal Constitution.

    Brian J. “Suppose you get your wish: the state refuses to recognize marriage at all and instead recognizes only civil unions (of all sorts). How does that not put religious adoption agencies in the same bind as Catholic Charities in Mass?”

    Another really good question. In my view the State can only recognize religious rites for the pragmatic benefit to the state as a civil union. Thus, the religious marriages will be enforced and recognized only as civil unions by the State. In reality, how could the State do anything more? Thus, religious marriages will simply be equivalent to civil unions for the State and will be treated equally.

    I would add that such a view brings civil marriage into alignment with Joseph Smith’s views. Neither the civil government nor other religious bodies can perform a marriage ceremony that is binding. They have no real force as far as the kingdom of God is concerned. They are mere ceremonies — a mere form of godliness.

    That brings up another issue. What do homosexual couples really gain by going thru a marriage ceremony that they didn’t already have with civil unions? Answer: absolutely nothing except the blessing and approval of the State of California. But they “enjoyed” all of the benefits of a sexual relationship(s) without marriage and also without civil unions because they don’t care what the state thinks. The sole purpose of this “marriage” designation is psychological and sociological. They want their unions to be blessed by the State as being morally equivalent in the eyes of the State to heterosexual marriages. I just don’t see that as a legitimate role for government. I also don’t see it as true. The State clearly has a much greater interest in fostering and protecting heterosexual relationships than homosexual relations.

    Frankly, the touting of Mr. Thurston’s bona fides as a Latter-day Saint simply engages in the logical fallacy of appeal to authority. If he actually had experience in Constitutional litigation and how courts interpret statutes in relation to constitutional language I would assess this issue differently because his experience would count for something. However, his presentation seems to me to be thoughtful, informed and presented to engage in good faith dialogue. To that extent, Mr. Thurston’s response ought to be credited.

    Comment by Blake — October 21, 2008 @ 4:53 pm

  36. One more thought…

    John #32 said, “If he wants to be percieved as more than a destructive critic who is a close ally of Gavin Newsom he will have to actually put out a piece that explains what he views are the pluses to Proposition 8 and why the church supports it instead of spending his time attacking those who are trying to support it.”

    You seem eager to push people into good and evil camps — either you are on Thomas Monson’s side, or you are on Gavin Newsom’s side, and you must make your views and allegiances patently clear. For many people (and many Mormons), the arguments for and against Gay Marriage are not so clear cut. The same can be said about both the LDS and non-LDS legal community.

    The church has been unambiguous about its position on Prop 8, but it has also been careful to frame this as a political issue, not an obedience, statement-of-faith, or loyalty-to-the-Church issue.

    Many loyal Mormons are greatly conflicted about Prop 8. Same with Mormon Lawyers. That more have not spoken publicly about their feelings of conflict or opposition to Prop 8 says more about their fear of Scarlet-Letter-like stigmatization from family, friends, and community than their lack of feeling or confidence in their personal, professional, or spiritual views.

    Comment by Matt Thurston — October 21, 2008 @ 5:08 pm

  37. Matt Thurston: “That more have not spoken publicly about their feelings of conflict or opposition to Prop 8 says more about their fear of Scarlet-Letter-like stigmatization from family, friends, and community than their lack of feeling or confidence in their personal, professional, or spiritual views.”

    How do you know that?

    Comment by Blake — October 21, 2008 @ 5:10 pm

  38. Sister Blah: See # 35. Perez v.Sharp was an equal protection case. The legislature had already defined the scope of marriage and the court held that equal protection (the real fundamental right that was discussed) barred different treatment for different races. The traditional purposes of marriages and the State’s ability to recognize which relationships were in the interest of the state to protect remained in the legislative arena.

    In In Re Marriage cases, in contrast, the fundamental right is to marry any other adult that one loves. That clearly was not the holding of Perez v. Sharp. Of course the holding of In Re Marriage Cases is also nonsense since I clearly cannot marry my sister even if I love her and want to marry her. Or can I in California now? I suppose Caligula would have loved such laws.

    Comment by Blake — October 21, 2008 @ 5:18 pm

  39. #37, Personal experience. Most Mormons I’ve spoken to in person and online (numbering in the hundreds) who oppose or are conflicted about Prop 8 self-report such fear. But, hey, maybe its just a coincendence, and all other Mormons who oppose and/or are conflicted about Prop 8 feel no such fear.

    This is largely being framed in many local Calif wards like the “War in Heaven” — either you are on the Lord’s side or you are on Lucifer’s side. In such an environment most Mormons with opposing views on Gay Marriage will remain quiet or mute.

    The same could be said of any minority or unorthodox position.

    Comment by Matt Thurston — October 21, 2008 @ 5:35 pm

  40. Matt: I agree that one can disagree with the Church’s stand on Proposition 8 and ought not fear regarding their fellowship. Undoubtedly, issues of trust and loyalty will be defined inter-personally.

    I would add that the kind of hate speech that I see being addressed to loyal members who support the Church in its stand on Prop. 8 is truly deplorable to me. The Church is being called dishonest and those who support and contribute are being called liars, bigots, homophobes and so forth. I suppose it goes both ways. However, I believe that it is imperative to focus on the issues and not the person.

    I do want to say something about the argument that the church ought not impose its views on others. The Church has a vital interest at stake. The issues unquestionably involves issues of morality and particular interests of families and religious organizations in general. When arguments are made that the church ought not be allowed to advocate for such matters, what I believe is really being said is: I want to silence those who disagree with me. The Church has every right and even an obligation to critique society and social mores and prevailing norms and attitudes. Its members have every right to have their voices heard and to have direction and guidance from the church on such issues. The efforts at Mormons for Marriage seem to me to fall beyond the bounds of the kingdom because they call the Church leaders liars, homophobes and disingenuous. They demand that the Church stay our of public life and public issues. Of course they don’t complain when the Church opposes the MX missile or speaks out to protect the environment. I conclude that there is a real concern that the real god of many such folks may well be their own liberal political views.

    One last thing: I haven’t seen any of those who oppose the church’s push on Prop. 8 to actually be willing to say or agree that homosexual conduct is a sin — within a civil union or marriage or not. Yet it seems to me to be the particular role of the Prophet and Church to say what is displeasing to God and will lead to unhappiness and ultimately death and captivity. Perhaps my exposure to such opponents of Prop. 8 is limited. Where do you stand on that particular issue?

    Comment by Blake — October 21, 2008 @ 5:55 pm

  41. Blake –

    First, with respect to tax exempt status, can you point to any precedent or legal authority that challenged the LDS Church’s tax exempt status during the decades after the enactment of the laws against racial discrimination and Loving v. Virginia when the LDS Church continued to refuse to extend full membership to blacks and barred them from marrying in LDS temples? If you could point to any case law on this issue, it would certainly lend credence to your argument that the Church’s tax exemption would be jeopardized if the Church refused to marry same-sex couples.

    Second, did you know that Catholic Charities in Massachusetts had already placed over a dozen children with gay couples before Catholic Charities declined to renew their contract with the state Department of Social Services in 2006? If Catholic Charities refused to place children with gay couples as part of their contract with DSS, Catholic Charities would have violated state anti-discrimination laws regardless of the 2003 Goodridge decision. The news reports and interviews with people affiliated with Catholic Charities clearly indicate that Catholic Charities refused to participate in Massachusetts adoptions as a political statement against gay marriage.

    Turning to Proposition 8 – Prop 8. will not change the reality that state actors in California cannot discriminate against people because of their sexual orientation. Thus, Prop 8 supporters should be attacking these anti-discrimination laws, not whether couples of the same gender can share the same language to describe their committed relationships as heterosexual couples.

    Although the effects of Prop 8 may be uncertain, the events occuring after the the enactment of the civil rights laws and interracial marriage, however, indicate that fears of the “mongrelization” of the races soon blew over and were revealed to be racist propaganda. Likewise, it might take some of us longer than others to accept gay marriage, but considering the U.S. Supreme Court protects the marriage rights of convicted murderers while incarcerated for their crimes and deadbeat parents who divorce and remarry every couple of years and refuse to take care of children they already have, it’s difficult to effectively argue that two consenting adults who happen to share the same gender should be forbidden from making a marriage commitment.

    Comment by ECS — October 21, 2008 @ 6:43 pm

  42. I am not opposed to prop 8 but I certainly do not feel nearly as passionate as most LDS that it is necessary. I have a problem telling children that their family “In not as good” which is the message that will be sent if we require teachers to distinguish between types of families. Currently I do not believe schools have any such mandate and this should be reason enough to get parents to volunteer in their kids classrooms. Currently most of the argument for prohibiting same sex marriages are focused on kids in schools. I do think this is a bit of a stretch. This prop does nothing to change the way the kids are taught. There are a lot more arguments on this posting but exposure of children to homosexuality is the key focus of the opposition of SSM. Is there any other issue the church actually speaks out on at this level? Even abortion doesn’t bring out this level of panic in church leadership. Of course there is also no other issue that they have handled as poorly over the last couple of decades either.

    Comment by Bob W — October 21, 2008 @ 7:03 pm

  43. ECS — I don’t have to point to anything regarding tax status since holding the LDS priesthood is not deemed to be a fundamental and substantive constitutional right in California and this could not be deemed a basis for denying tax exempt status. However, I have explained how the Bob Jones case could easily be extended in light of SSM which is deemed to be a fundamental constitutional right in California. If you don’t grasp that distinction, then you’ll miss my argument. Really, it isn’t at all far fetched.

    2. The Catholic Charities was not merely protesting gay marriage. That is just so much political rhetoric on your part and those who spout it. Catholic Charities had previously placed children by placing them with other agencies who placed them with gay couples. It ceased to operate in Mass. because it had to follow the dictates of the Mass. Sup. Court about placing children with gay couples — which it deemed to be inconsistent with its religious mission. Opponents of Prop. 8 consistently downplay the serious consequences of a State dictating to a religious agency what kinds of relationships it must deem to be equivalent to heterosexual marriage and who they can and cannot place children with. It is a very serious issue and it is clear that because having children is also deemed to be a fundamental right for any two people who love each other in California that denial of this so called “right” is a basis for denying licensing just as California did in the North Coast Womens’ Care case. The case is very troubling because the writing is more or less on the wall with respect to this issue — I deem it to be quite likely that California will deny licensing to any adoption agency or service that denies adoptions to same sex couples — and that includes LDSFS.

    You are simply misinformed about the effect of Proposition 8. If it passes, the very broad California anti-discrimination laws will have to be read in a light that makes them consistent with Prop. 8 and not the other way around as you assume. Thus, it will have a profound effect.

    Comment by Blake — October 21, 2008 @ 7:28 pm

  44. Blake,
    I appreciate the thoughtful analysis that you have given this issue, and I hope that we can resume the fruitful conversation we had back at FPR (http://faithpromotingrumor.wordpress.com/2008/08/13/children-and-ssm-an-analysis-of-the-divine-institution-of-marriage/). I have read the Thurston piece as well as yours. The summary of my comments below is that you don’t seem to grapple with the fundamental claim that Thurston is making, namely, that the legal consequences described are actually the result of status quo non-discrimination laws, and SSM does nothing to change that. Additionally, Thurston’s piece suggests the extreme unlikelihood of these sorts of consequences. Your analysis only ever points to such things as lie within a realm of possibility, but not probability. Yes, these arguments could be made, but you don’t analyze the counter-arguments, such as free-exercize and other historical protections given to religious groups. Without this analysis, your scenarios remain in the same place that Thurston left them, as improbable.
    I emphasize that I really am willing to understand this issue, and I hope that we can have a productive discussion as your time permits.

    1. “Any student who expressed opinions regarding the distinction, for instance that that homosexual conduct is sinful, could possibly be regarded by a school district as engaging in hate speech. What is to stop that kind of inference? Does the law mandate that it be so treated? Of course not — but it leaves such responses as an open possibility.”

    Again, it seems that since homosexual conduct is legal in the status quo, the expression of opinions about its moral value are already subject to the kind of legal scrutiny that you have described. Personally, I have a problem with teachers being given the latitude to make moral judgments about any kind of marital or sexual relationship, and I don’t believe that this is permitted in the status quo anyway. For instance, even abstinence education is based on secular arguments about STDs and pregnancy, not because it is morally superior. It is not clear to me from your analysis that when teachers are “prohibited” from making moral distinctions between the different kinds of sexual and marital relationships of their students’ parents would be decided on the basis of SSM legalization. Rather, it seems to follow from status quo hate-speech laws, as you yourself suggest. Why do you see SSM as altering existing hate speech laws that are designed protect homosexual students or the children of homosexuals in high schools? Finally, why would this be uniquely the case under SSM as opposed to the domestic partnerships that would continue to exist in CA if Prop 8 passed?

    2. You cite Bob Jones as evidence that if the church doesn’t perform SSM they may lose their tax status. I have two questions that carry over from our previous discussion. First, why should I value my church’s tax status over the happiness of homosexual couples? What is the moral calculus here that should make me decide that the tax status of my church is more important than the legal and social benefits of marriage for homosexual couples and their families? Second, even if your analysis is correct on the possibility of such a case being made, I wonder if you think it is likely? That is, given that such a case would have to be leveled against most of the religious denominations, including the Catholic Church, do you really see such a case a realistically passing? Third, why isn’t the church subject to these laws in the status quo? We are allowed to deny marriage to anyone who doesn’t meet the moral requirements that we have established now, including people who have engaged in the perfectly legal behavior of pre-marital groping. Why isn’t this considered a denial of a “fundamental right”? Shouldn’t these heterosexuals be able to sue under the Bob Jones logic for discrimination? What about Catholics who won’t marry divorced people? It seems to me that the long standing freedom of religions has been to set the standards for what kind of marriages it performs in its private religious spaces and ceremonies. You suggest that denying marriage to someone is a denial of a fundamental right, but we get to deny heterosexual marriages, as do all religious groups, all the time.

    3. You suggest that religious groups might be “denied the right to originate adoptions.” On what basis is this a “right”? There is nothing at all in our scriptures that suggests that performing adoptions is necessary to our religion so that it would be considered a part of free exercise. Again, while I think that the scenario in which religious groups who want to discriminate against homosexuals is possible, I don’t find it likely, Catholic Charities notwithstanding. You say “there is a very real concern that California would interpret its law much like Mass. thus forcing a legal showdown,” but there is no Mass. interpretation since this case didn’t go to court, nor was a suit ever even filed. The truth is that no one really knows why they chose to leave MA. Perhaps there will be a legal case in the future, but as it stands there is only speculation about what the courts would decide, not facts. My suspicion is that there are lots of strong reasons why LDSFS would be allowed to continue to perform adoptions, not least because they don’t actual discriminate on the basis of sexual orientation, but on the basis of Church membership. Further, I am not sure of the legal reasoning that you are offering. In cases where homosexual individuals are allowed to adopt, the basis for such a state of affairs is in fact equal protection. You assert that the equal protection case would be stronger under SSM. but I don’t see why. First of all, because the discrimination taking place is on the basis of sexual orientation, not marriage, so I don’t see why marriage changes that. Second, why doesn’t the domestic partnership laws before SSM was legalized in CA create the exact same equal protection problem?

    Nevertheless, I don’t see why you see this “right” to perform adoptions as being more fundamental that the “right” to marry. If you are going to suggest that marriage is not actually a “fundamental right,” I think you have a lot of theorizing to do to explain why performing adoptions is.

    In the midst of this discussion, you claim “the State has a much greater interest in fostering and protecting heterosexual relations and natural reproduction.” As per our previous discussion, can you please explain why these two kinds of marriage are in competition, such that when the state legalizes one kind of marriage that it necessarily constitutes a diminishing of another kind? Currently, it is legal for pedophiles, murderers, old people, and December-May couples to marry, but I don’t see the state’s legalization of such relationships to constitute a decreased interest in marriages such as my own. Of course the state has an interest in the kinds of marriages you describe, but these aren’t the only marriages it allows in the status quo, nor does its support of marriages that don’t meet this standard form a discouragement of marriages that do.

    4. Your fourth point about university housing suffers from the same weakness of analysis as the previous points. That is, while you demonstrate that it is not outside of the realm of possibility, you offer no evidence for its probability, and you fail to acknowledge evidence that counters your claim. Since BYU can deny housing to all kinds of law-abiding people who nevertheless do not meet certain religious requirements, it is not clear why that would change just because SSM is legal.

    5. Fine.

    6. You suggest that there will be a “tax-payer burden for benefits for room-mates.” Well, we all know that heterosexual “roommate” marriages do occur in the status quo, and I am not aware that they constitute a significant tax burden. Ultimately, I think this is a non-issue. SSM is legal in plenty of places and we can look to those places for empirical evidence to determine if roommates are abusing the system. There doesn’t seem to be any evidence that such a problem is even a minimal concern in any place, and certainly not a financial burden on tax payers.

    Can you explain what your analysis of homosexual tendencies has to do with anything relevant to the legal or moral issues at stake here? Even if you are right that choice is at the heart of homosexual behavior, why should individuals who can legally chose to engage in homosexual relationships be denied the choice to marry those whom the choose?

    Finally, you offer a third alternative to the status quo choice between Prop 8 and SSM: “in a world where folks are properly informed the institution of marriage will be seen as solely a religious rite.” Since this isn’t actually real choice available to us, and isn’t likely to be a politically viable one any time soon, let’s focus the analysis on the actual options we have before us.

    Comment by TT — October 21, 2008 @ 7:29 pm

  45. TT: “the legal consequences described are actually the result of status quo non-discrimination laws, and SSM does nothing to change that.”

    You must not have read carefully what I have explained. The fact that Prop. 8 passes has a profound effect because the anti-discrimination laws will have to be read to be consistent with Prop. 8 and not the other way around. Being a change to the State constitution, it is a more fundamental law than any of these statutes. In fact, this is just the most egregious mistake in Thurston’s analysis — and now in yours.

    TT: “First, why should I value my church’s tax status over the happiness of homosexual couples?”

    What makes you think that SSM makes homosexuals happy? More importantly, I don’t want my Church’s stance to become second class speech or regulated in any way by the State. Further, it furthers the kingdom to have agencies and congtributions that are tax exempt. The cost to the Church from losing tax exempt status would be enormous. Now you may believe that we are not taxed enough — to that I say I vehemently disagree.

    So let me ask: why should my Church have to give us tax exempt status so that homosexuals can have the state bless their union? Why should the state bless their union? Why would marriage even make a difference to them given the protections they already had under existing laws?

    TT: “but there is no Mass. interpretation since this case didn’t go to court, nor was a suit ever even filed.”

    You’re just mistaken about this. There was no case, but the state of Mass. interpreted its laws and applied them such that Catholic charities either had to grant adoptions equally to all gay couples or shut down. That is quite an interpretation and what ultimately forced the shut down.

    TT: “Nevertheless, I don’t see why you see this “right” to perform adoptions as being more fundamental that the “right” to marry.”

    Because there is no right to marry that wasn’t just made up by the CA court. Further, it is not merely the right to marry, but the right of homosexuals to marry one another that is at issue. Why should the state grant such a right? In my view, the CA court is asking the wrong question and addressing the wrong issue. The real issue is: Does the state have an interest in protecting and fostering these kinds of relationships in the same way that it has for heterosexual relationships. I say definitely not.

    TT: “our fourth point about university housing suffers from the same weakness of analysis as the previous points. That is, while you demonstrate that it is not outside of the realm of possibility, you offer no evidence for its probability, and you fail to acknowledge evidence that counters your claim. Since BYU can deny housing to all kinds of law-abiding people who nevertheless do not meet certain religious requirements, it is not clear why that would change just because SSM is legal.”

    Well, perhaps you missed that BYU isn’t in CA? Further, you must have missed my discussion. I stated that the issue isn’t religious schools but the kinds of relationships that students in housing at state sponsored university must agree to. Presently men and women and heterosexual and homosexuals are all housed together. Will Prop. 8 change that? I don’t know — but the fact is that universities cannot discriminate based on gender or orientation, including housing arrangements, in CA and that would likely change if Prop. 8 passes because these statutes will be read in light of Prop. 8.

    Finally, you just missed issue 6. The issue is the significant cost to litigants who must defend their practices if Prop. 8 doesn’t pass. That has nothing to do with phony same sex marriages — tho I add that there won’t be any phony same sex marriages if Prop. 8.

    TT: “an you explain what your analysis of homosexual tendencies has to do with anything relevant to the legal or moral issues at stake here? Even if you are right that choice is at the heart of homosexual behavior, why should individuals who can legally chose to engage in homosexual relationships be denied the choice to marry those whom the choose?”

    I’m of course responding to an argument: since homosexuals have no choice but to be homosexual, we should allow them to marry. That isn’t true for all who have same sex attraction issues and we cannot assume a one size fits all mentality with respect to such issues. So I’m ppointing out that such an argument made at the Mormons for Marriage web site is bogus. That is what it has to do with it.

    TT: “Finally, you offer a third alternative to the status quo choice between Prop 8 and SSM: “in a world where folks are properly informed the institution of marriage will be seen as solely a religious rite.” Since this isn’t actually real choice available to us, and isn’t likely to be a politically viable one any time soon, let’s focus the analysis on the actual options we have before us.”

    BS. Two wrongs don’t make one right. Let’s get the analysis correct now and we won’t get into deeper doo doo later when the issue gets addressed. It is an important alternative plan to solve the issue that actually resolves it fairly, avoids the obvious entanglement of government in mimicking religious rites and it just happens to neatly solve the problem altogether. I say let’s focus on it.

    So a few questions for you: what additional protections are given to homosexuals that they didn’t already have?

    Do you see it as a legitimate role of government to give its blessing to SSM as equivalent to heterosexual marriages?

    Do you believe that the state has as much interest in protecting and promoting SSM as it does heterosexual marriages?

    Do you believe that prophetic warnings just may point us to problems that we didn’t foresee?

    Do you believe that homosexual conduct is a sin or displeasing to God?

    Comment by Blake — October 21, 2008 @ 8:32 pm

  46. Blake,

    What prophetic warning?

    Comment by Bob W — October 21, 2008 @ 8:51 pm

  47. “We warn that individuals who violate covenants of chastity, who abuse spouse or offspring, or who fail to fulfill family responsibilities will one day stand accountable before God. Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.”

    Comment by Kent (MC) — October 21, 2008 @ 8:55 pm

  48. Blake please do not just refer to the weak statement on LDS.org. The statement doesn’t even come close to saying anything of any value for what would happen if gay marriages occur.

    Comment by Bob W — October 21, 2008 @ 9:05 pm

  49. Bob W. I didn’t write # 47. However, I disagree with you. It addresses it clearly. Let those who have ears listen with them.

    Comment by Blake — October 21, 2008 @ 9:17 pm

  50. Sorry Kent, but SSM has nothing to do with the disintegration of the family. I know that many people like to scapegoat gays and lesbians for the problems that modern society faces, but honestly, SSM strengthens families. It helps provide legal protections and stability to families.

    Comment by Steven B — October 21, 2008 @ 9:21 pm

  51. Blake, what activity is the “homosexual conduct” that you refer to as a sin within a marriage of a same sex pair in jurisdictions where they are legally married (e.g., California)?

    I’m asking you because you observed, “I haven’t seen any of those who oppose the church’s push on Prop. 8 to actually be willing to say or agree that homosexual conduct is a sin — within a civil union or marriage or not.” So, where do you come by your understanding of what homosexual activity is and that whatever homosexual conduct is, it is a sin?

    Can you conceive of a heterosexual marriage where the spouses do not engage in any of the “homosexual or heterosexual activity” you have in mind? How about a same-sex “marriage” between a couple that doesn’t engage in “homosexual conduct?” Would your position about the extension of marriage change in such an instance?

    Are you saying that marriage must be by definition heterosexual or is it somehow related to the notion of “activity”?

    Thanks.

    Comment by Walt — October 21, 2008 @ 10:04 pm

  52. I served as a state trial judge for 22+ years. I have carefully read the statements of Thurston and Blake concerning the six consequences of the Prop. 8 question. If I was a client with a constitutional question or faced litigation on a case involving a constitution question of the law there is no doubt that I would go to Blake. Thurston is basically giving his personal prophecy of the future. Blake gives a very articulated risk assessment based on legal precedence.

    In reading the “comments” on this site and others that have addressed this controversy I am convinced that most do not understand what Blake says or choose not to understand because they don’t agree. If Thurston had not identified himself as counsel for a Mormon Church project, as an adjunct professor at BYU Law School and as an active member of the LDS Church, his statement would not have drawn the attention of the anti-Prop 8 crowd. There are others out there that have better legal scholarship on his side of the controversy. His “brief” tells me that he doesn’t agree with his Church leaders but he doesn’t announce that position. You know where Blake is coming from. From my stand point Blake has the better legal argument. But alas, this matter is primarily being decided on an emotion basis not necessarily on legal logic.

    Comment by Paul — October 21, 2008 @ 10:33 pm

  53. Walt: I’m saying that I think the real difference between those LDS who oppose Prop. 8 and support SSM and those who support Prop. 8 and oppose SSM is twofold: (1) we see the risk of SSM differently. For example, I believe that it is very likely that LDSFS will not be licensed given the fundamental nature of the supposed right to have children and define a family any way two people want to in CA. It is a simple analysis that LDSFS will violate that right, that it depends on licensing from the State and any organization that will not treat gay marriage equally will not be licensed. (2) Those who oppose Prop. 8 and the Church’s stance also have a religious difference. They don’t believe that prophets when they say homosexual conduct (not mere orientation or tendencies) is sinful and contrary to God’s will. The fact that homosexual activity is sinful doesn’t change merely because the state sanctions it.

    Not once when I have asked those who oppose Prop. 8 whether they believe that homosexual conduct is a sin has anyone affirmed that it is. This consideration has no place in the legal analysis of whether Prop. 8 should be passed. However, it does have a great deal to do with why some members don’t support the church’s position on it. They don’t accept the Church’s position that homosexual conduct is sinful or contrary to God’s will.

    Having said that, I believe that stable gay relationships are morally superior to promiscuous ones. Will SSM stabilize such relationships more than they otherwise would be. I cannot see any reason to believe that. There is no evidence that I have seen to support — tho I would like to believe that a ceremony somehow makes a difference.

    Why do homosexual couples want the designation of marriage in addition to civil unions? I suggest once again that it is because they want the State to sanction and bless their relationship as being as valuable to the perpetuation of the state as heterosexual relationships and morally on par with them. I don’t believe that either is the case. I don’t see that being a legitimate role of government.

    Let me emphasize again, however, that we have a duty to go out of our way to accept and support those who have same sex attractions and who have chosen to live in homosexual relationships. We have a sacred duty to love them as we love ourselves, to accept them and recognize their inherent worth and dignity. They are just as much children of God, just as entitled to human dignity and respect as heterosexuals. That doesn’t entail that active homosexual relations are not sinful. Nevertheless, we all sin. It is not an excuse to judge.

    Comment by Blake — October 21, 2008 @ 11:00 pm

  54. Walt: “How about a same-sex “marriage” between a couple that doesn’t engage in “homosexual conduct?” Would your position about the extension of marriage change in such an instance?”

    If a same sex “couple” does not engage in sexual activity, but merely share a common dwelling, then I don’t see how they are different than room mates. Let’s say that they love and support each other. How are they still anything more than sharing a common dwelling and caring for each other? Are they then engaging in sinful conduct? Of course not. Engaging in homosexual sex is the conduct at issue. However, I don’t see any reason that my analysis of SSM would change. Marriage is a sacred religious rite performed by religions. The state has no authority to do anything more than a civil ceremony to create a civil union for either a heterosexual or homosexual couple in my view. The state may call such a civil union a “marriage,” but it ain’t. It remains merely a civil union because states can only perform civil ceremonies having a civil function and authority. Calling it marriage doesn’t change what it is given that the fact that the state simply doesn’t have the authority to do anything more than a civil ceremony. You can call a VW bug a Ferrari if you want — but it will not be a Ferrari. So what is gained if we insist that we have a VW bug but we want it to be called a Ferrari because we believe our car is as sexy and fast and powerful as a Ferrari? That is like what is happening here. SSM is just a civil union although the state of California will now insist on calling it a marriage. There are no additional rights, no additional protections — but we then open Pandora’s box with the downside of recognizing a fundamental right to count such unions as being a marriage in the eyes of the state.

    Comment by Blake — October 21, 2008 @ 11:16 pm

  55. Blake: I think that your rhetorical slope is slick. Your argument is one of mostly wordsmithing semantics that ultimately leads to the detriment of a certain class of couples. If you support civil unions outside of marriage for any couple, but the term “marriage” should only be conferred by a house of worship, then it seems like the wrong proposition is on the ballot for you. There should be a proposition to end the state sponsorship of marriage while seperately retaining civil-union rights. However the way the proposition is written the rights of certain couples to marriage AND their civil-union rights (since there isnt an alternative establishment of civil-union rights in CA) are eradicated.

    The solution to ending the state’s right to grant a marriage (of any kind) is not to single out SSM for exclusion. In effect, this proposition only serves to limit the rights of homosexuals. It doesn’t make sense to punish SSM because the concept of state-sanctioned marriages is flawed in your eyes.

    While you seem to have a fairly enlightened view of homosexuals, it is clear that many of the proponents of Propostion 8 have an anti-gay agenda.

    Comment by Jeremy — October 22, 2008 @ 12:59 am

  56. Blake, “Mr. Thurston: I have read your document responding to the Church’s 12 points.”

    Where is this document available?

    The only document of Mr. Thurston’s I am aware of is the 8 page “A Commentory on the Document ‘Six Consequences … if Proposition 8 Fails’”.

    In that document Mr. Thurston attacks ‘an anonymously authored document titled ‘Six Consequences…’ I am unaware of any document by Mr. Thurston where he attacks any document produced and distributed by the Church through the authorized channels. I would very much like to read this document you reference about the Church’s 12 points.

    Thanks.

    Comment by sunnankar — October 22, 2008 @ 3:00 am

  57. Paul,
    If this is so, can we scrounge up a good counter argument to Blake? I kind of feel that we don’t have a solid argument against Prop 8 so we can see both sides equally. Even though Blake keeps more emotion out, it is clear where his ‘allegiance’ lies. There are a lot of faithful saints on both sides of the issue that don’t have all this stuff as clear as Paul seems to have it. I haven’t been only ankle deep in all of this and my head is spinning.
    I do feel that I have to thank everyone on both sides that attempt to understand and attempt to clarify.

    Comment by dallske — October 22, 2008 @ 4:15 am

  58. Paul,

    In your “comment” you opine that “Thurston is basically giving his personal prophecy of the future” and then proceed to describe your own alternate reality:

    If Thurston had not identified himself as counsel for a Mormon Church project, as an adjunct professor at BYU Law School and as an active member of the LDS Church, his statement would not have drawn the attention of the anti-Prop 8 crowd.

    I wonder what I would have thought about your prophecies had you not identified yourself as a “a state trial judge for 22+ years.”

    Comment by Peter LLC — October 22, 2008 @ 4:49 am

  59. To sister blah 2,
    You ignore the fact that Perez v. Sharp, the case you sight, relies on the 14th admendment. There is no equivalent admendment that bans distinctions based on gender, so there is no grounds for finding such distinctions in violation of the constitution.

    Comment by John Pack Lambert — October 22, 2008 @ 5:11 am

  60. To Matt,
    I can know what Mr. Thurston did in Orange County because it is posted that he dealt with property law.
    I am a firm believer in the usefulness and efficacy of intelectual history. People reflect their background and experiences in their writting, and so we seek to find out their background and experiences to better understand their writting.
    Mr. Thurston has been put forward as an expert witness against Proposition 8, so it is material if he has any experience in issues of education law, family law or religious freedom issues.
    In fact, you misidentify the burden. It is him and his supporters who have to prove that he has any background in these fields, and I have yet to see one shred of evidence that he has adequate experience in any of these fields or any understanding of what the effects of Employment Division v. Smith are.
    On the other hand Brother Ostler is a constitutional lawyer who has in fact done work for LDS Family Services, so he has credentials in related fields, something that I still have not seen any indication that Mr. Thurston has.

    Comment by John Pack Lambert — October 22, 2008 @ 5:16 am

  61. To ECS,
    Your Loving v. Virginia analogy is based on ill-reasoned allusions. Loving v. Virginia banned laws against inter-racial marriage, but since the church policies on people of African-descent marrying in the temple were not at all influenced by the race of their spouse, the issue was not brought to the fore.
    On the issue of “mongrelization of the races” I think you misinterpret the events of the last 40 years.
    If you view people having mixed African, Native American, Asian, Latin American, Pacific Islander and European ancestries as a bad thing, which I do not but some admitedly do, than the mongrelization of the races is a process happening.
    I served in a ward on my mission in Las Vegas where there were about five couples where the husband was of African descent and the wife was of European descent. Unfortunantly in only two of these cases was the husband a member of the church. In my stake here in Michigan one of the members of our high council is a man of African descent whose wife is of European descent. My favorite example is Sister Wozniak, who is of African descent but whose last name betrays her husband’s Polish ancestry. There are at least three more couples in my stake and was another one that moved to Tennessee, plus the case of our stake president’s daughter and her husband who is as yet not a member of the church. I can think of at least three people of such mixed heritage I knew at BYU.
    If we take racists at face value, we would also have to speak of the many marriages with people of Asians descent, and I probably could think of at least three times as many people I have known who illustrate that issue.
    To Matt,
    If you want to speak out against the teachings of the prophet do not expect us to sit by and say nothing. I will not apologize for speaking strongly on the issue. The First Presidency asked us to put forward our best efforts, and this in no way indicates to me that they feel this is an uninportant issue.
    Marriage between a man and a woman is ordained of God. If we do not promote good values and follow the commandement we bring upon ourselves the judgements of God.

    Comment by John Pack Lambert — October 22, 2008 @ 5:39 am

  62. Blake –

    Bob Jones held that college and universities could not refuse admission to interracial couples. Under any reasonable (and most unreasonable) interpretation, Bob Jones is distinguishable from the case of _churches_ refusing admission to their sacred spaces based on sexual orientation. If Bob Jones provided such a slippery slope, why haven’t non-LDS plaintiffs successfully sued for the LDS Church to perform their marriages in the LDS temple?

    I think your interpretation of the Catholic Charities experience in Massachusetts is misleading and factually incorrect.

    But, most importantly, let’s turn to Zablocki and Turner. These are the U.S. Supreme Court cases I alluded to in my previous comment which struck down legislative prohibitions in Wisconsin and Missouri preventing deadbeat parents and incarcerated criminals from marrying. If you were sitting on the bench, how would you distinguish legislative restrictions on prisoners and deadbeat parents marrying from legislative restrictions on same-sex couples from marrying?

    In other words, why is sexual orientation a complete bar to marriage whereas being convicted of and incarcerated for a violent crime is not?

    Comment by ECS — October 22, 2008 @ 5:44 am

  63. To TT,
    I think your argument about the happiness of homosexual couples needs to be placed in the context of the real situation in California.
    If Proposition 8 passes, homosexuals can still enter into civil unions. So there is no obvious reason that their happiness will decrease.
    However, if you are a Latter-day Saint, I think you need to spend more time reading the scriptures and less time elsewhere, for you do not understand them.
    Wickedness never was happiness, and homosexuals will not find happiness in either civil unions or same-sex marriage. Homosexual actions are wicked and will never lead to happiness.

    Comment by John Pack Lambert — October 22, 2008 @ 5:47 am

  64. To Walt,
    To any believing Latter-day Saint who understands the law of chastity, homosexual activity is sinful whether it has the cloak of law or not.
    Only sexual relitions between a man and a woman legally and lawfully wedded are allowed by the Lord. Anything else is a violation of the law of chastity.
    Unless you start from this premise, you are not discussing the issue from a Latter-day Saint prospective, and all protestations of being an active Latter-day Saint are meaningless, while those of being a temple recomend holder are even less wise.

    Comment by John Pack Lambert — October 22, 2008 @ 5:59 am

  65. ECS: I have explained how the Bob Jones precedent is easily extended to protect the fundamental right recognized in CA at present for homosexuals to marry each other. Further, you just refuse to engage my argument. I argued that Bob Jones would extended, not that it is square on with SSM cases. However, it is not at all difficult to see how the reasoning could be adopted, and in fact likely will urged, to deny tax exemption to LDSFS because it will not treat gay adoption the same as straight adoptions. Time to focus on the argument rather than merely state the obvious, i.e., Bob Jones hasn’t yet been extended.

    ECS: “In other words, why is sexual orientation a complete bar to marriage whereas being convicted of and incarcerated for a violent crime is not? ”

    For one thing, many violent criminals have already fostered children the good old fashioned way and we want to protect those children the best that we can. Moreover, our system doesn’t permanently sentence criminals but seeks to reform — yes, even for violent criminals (and especially for them) we are still aiming at changing behavior and making them productive members of society. However, SSM marriage is not the same at all. The question is the interest of the state in fostering and protecting such relationships. That can be done just as well thru civil unions.

    Now just one person explain to me what rights and privileges homosexuals will gain if they are allowed to marry that they didn’t have under the broad CA civil union statutes. Really, this is getting beyond ridiculous. I ask and ask and all of you supporters of SSM just ignore this most vital question. Come on ECS, explain it to me.

    Comment by Blake — October 22, 2008 @ 6:12 am

  66. Now just one person explain to me what rights and privileges homosexuals will gain if they are allowed to marry that they didn’t have under the broad CA civil union statutes. Really, this is getting beyond ridiculous. I ask and ask and all of you supporters of SSM just ignore this most vital question.

    Unless you can identify anything concrete, I believe that we have a very strong argument that what is really at issue is an attempt to get the State to bless, promote and condone homosexual unions. That isn’t a proper role for the courts, for the government or for states as I see it. In fact, even suggesting that what is at issue is really just a change of name from “civil union” to “marriage” (as the CA Supreme Court seems to acknowledge!) shows that there is nothing real lost when Proposition 8 passes and a great deal to be gained because we can avoid the kinds of legal entanglements and problems that arise with recognizing same sex “marriage” as a fundamental constitutional right.

    Comment by Blake — October 22, 2008 @ 6:28 am

  67. To ECS,
    Actually, a homosexual man has just as much right to marry as a man who is in prison on an armed robber charge.
    The law does not in any way deal with the sexual orientation or sexual activity of the person entering the marriage, it merely requires the two people getting married to be of different genders. No one is barred from marrying because of sexual orientation.
    You can argue this is hypothetical, and it will be hard for practicing homosexuals to find woman who will marry them. However, I suspect having a criminal record also decreases someones chances of marriage.
    Whatever marriage is, it is only recognized and not forced by the state, so anyone who is of age and mentally competent can marry. In fact, it is not entirely clear how strictly enforced the latter is, but that is not the issue.
    This debate is not about who can marry but about what a marriage is. As such it is about what the state will give its proactive approval to.

    Comment by John Pack Lambert — October 22, 2008 @ 6:40 am

  68. Blake – I’m still not convinced that the legalization of gay marriage rather than anti-discrimination laws jeopardizes the tax exemption. Of course, parties may cite to Bob Jones in support of their arguments, but Bob Jones doesn’t do the work here that you think it does.

    I disagree with your analysis of Turner. First, the state’s interest in protecting children from repeat offenders who are child rapists should certainly outweigh the child rapist’s right to associate with his or her children. Should the child rapist be given the benefit of the doubt – and the opportunity to abuse his children – simply because his children were conceived within a marital relationship?

    Second, the U.S. Supreme Court, however, did not distinguish between child rapists and, say, carjackers, or between repeat offenders and prisoners who are fully rehabilitated. Perhaps child rapists should have been granted the right to form civil unions instead of the right to marry, but, thanks to Turner, that ship has already sailed, my friend.

    Your final question is a good one, and has been answered succinctly by a commentator on the recent Connecticut decision legalizing same-sex marriage:

    In order to argue that Connecticut’s civil union law did not discriminate against gays and lesbians, lawyers for the defendants were forced to contend that civil unions are basically the same as marriage. The majority opinion summarized their argument this way: “[T]hey asserted that the plaintiffs had failed to demonstrate that they have suffered any harm as a result of the statutory bar against same sex marriage because, under the civil union law, gay persons are entitled to all of the rights that married couples enjoy.” Logic like this puts gay marriage opponents in the odd position of devaluing the institution of marriage. Marriage, they end up arguing, is nothing so special that it can’t be replicated by a parallel institution–in this case, civil unions. Yet the entire point of creating civil unions is to preserve what is allegedly special about the institution of marriage. There is a pretty blatant contradiction here. Either there is something special about the label “marriage” or there isn’t.

    Likewise, it make no sense to argue, on the one hand, that civil unions are indistinguishable from marriage, and then to argue, on the other hand, that the word “marriage” signifies a unique relationship from which homosexuals should be excluded.

    Comment by ECS — October 22, 2008 @ 7:14 am

  69. Blake,
    I understand that you are agitated by perceived questions to your self-described authority on these issues, and I get why you are impatient. Personally, I only chose to engage you again because I saw you as a relatively reasonable interlocutor (with a few minor lapses). If my continued discussion with you brings out your rude side as it seems to have in your response to me in 45, then let’s both just drop it. In a good faith effort, I would like to continue the discussion, however.

    I think that we can perhaps agree to disagree on a few key issues. First, I just don’t think that there is any reason that religious organizations would be forced to perform SSM. The closest you come to proving this claims is Bob Jones, which has been pointed out time and time again is not a religious institution and was subject to laws that differ from religious institutions. For some reason you see SSM as providing the pivotal threat to religious liberty in a way that equal protection does not. In my view the complete absence of any actual evidence that religious institutions are threatened in places where SSM is allowed is enough to convince me that your hypothetical is essentially without merit. It is obvious that we just disagree here.

    Second, I think we just disagree SSM will somehow affect equal protection statutory interpretations. You have asserted this, but I still don’t see the legal reasoning. Again, you present it as a remote possibility, but I am not convinced by your legal arguments that such is the case. If I were a judge and you were presenting the case for how SSM gives more equal protection than is already granted, I think you would lose.

    Let us focus instead on areas where we can perhaps still come to some mutual understanding, if not agreement.

    TT: “First, why should I value my church’s tax status over the happiness of homosexual couples?”

    What makes you think that SSM makes homosexuals happy?

    Seriously? What makes you think that it doesn’t?

    More importantly, I don’t want my Church’s stance to become second class speech or regulated in any way by the State. Further, it furthers the kingdom to have agencies and congtributions that are tax exempt. The cost to the Church from losing tax exempt status would be enormous. Now you may believe that we are not taxed enough — to that I say I vehemently disagree.

    Fair enough, but the expression of what you want doesn’t actually qualify as a theoretical background for why what you want should outweigh the wants of others. Why should individuals pay more taxes instead of institutions that want to discriminate? One could make the argument that like a polution tax, it seems that the institutions that want to violate social norms should have to pay for the costs of such actions.
    LET ME BE VERY CLEAR: I don’t think that there is any chance at all that the church will be denied tax-exempt status. Rather, I am suggesting that we investigate the reasons that we value this at the expense of homosexuals. It seems that on face we don’t accept that financial costs are a legitimate reason to discriminate. If we are making an ethical decision here, rather than one of self-interest, the church’s financial status shouldn’t get to enter into the calculation.

    TT: “but there is no Mass. interpretation since this case didn’t go to court, nor was a suit ever even filed.”

    You’re just mistaken about this. There was no case, but the state of Mass. interpreted its laws and applied them such that Catholic charities either had to grant adoptions equally to all gay couples or shut down. That is quite an interpretation and what ultimately forced the shut down.

    Blake, you have zero evidence for this assertion besides your personal claim to have talked to someone who knew someone in CC. Your belief contradicts the public statements of both the State as well as CC in the Boston Globe. I repeat, there is NO Mass interpretation! Even if you are right that the state prosecutors wanted to force CC to do something which it had been doing for decades already, since the case didn’t go to trial, there is NO legal precedent here. Period.

    TT: “Nevertheless, I don’t see why you see this “right” to perform adoptions as being more fundamental that the “right” to marry.”

    Because there is no right to marry that wasn’t just made up by the CA court. Further, it is not merely the right to marry, but the right of homosexuals to marry one another that is at issue. Why should the state grant such a right? In my view, the CA court is asking the wrong question and addressing the wrong issue. The real issue is: Does the state have an interest in protecting and fostering these kinds of relationships in the same way that it has for heterosexual relationships. I say definitely not.

    I don’t see how you have answered the question. You have suggested that you don’t believe that there is a right to marry. Granting that for the moment, how do you arrive at the conclusion that there is a right to perform adoptions? What is your theory of rights that allows you to come to such a conclusion? What other rights do you consider to be fictional?

    As for the rhetorical questions you ask, you act as if the burden of proof is against those who want to marry. It seems that this is an unreasonable burden for any marriage, that one needs to demonstrate to the state why their relationship is in the interest of the state. Since we don’t require this for heterosexuals, why should homosexuals have to meet this burden?

    Besides, we went over this again and again in our previous conversation. There, you couldn’t provide a single reason why a homosexual marriage is different from a geriatric marriage. In contrast, I suggested that the fact that homosexuals do have children is enough to meet the burden of proof you ask for: it is in the state’s interest to provide secure, stable environmnents for the children, regardless of the sexual orientation of the parents. Why do you see this as meeting your new burden that needs to be met before anyone can marry?

    Honestly, most of your other responses strike me as somewhat incoherent. All your accusations of what I supposedly missed seem to be non-sequitors, so I’ll just move on to the meatier issues.

    I’m of course responding to an argument: since homosexuals have no choice but to be homosexual, we should allow them to marry. That isn’t true for all who have same sex attraction issues and we cannot assume a one size fits all mentality with respect to such issues. So I’m ppointing out that such an argument made at the Mormons for Marriage web site is bogus. That is what it has to do with it.

    Again, granting this argument, I am not sure what conclusions follow from it:
    A. Some people can choose to be homosexual or heterosexual
    B. We should prevent people from making the choice to be homosexual
    C. If SSM is allowed, more people will choose to be homosexual (?)
    D. Therefore, people who can choose to be either homosexual or heterosexual shouldn’t be able to make that choice (?)

    Is this what you are saying?

    Now, to your questions:

    what additional protections are given to homosexuals that they didn’t already have?

    You are the one arguing that people won’t be able to discriminate against homosexuals if SSM passes. I suppose one could say that you would lose your ability to legally discriminate. So, if there is no legal difference between domestic partnerships and SSM, how can you possibly claim ANY of the harms that you are trotting out? Actually, I accept your general premise here that there is no legal difference between SSM and domestic partnerships, which is why I reject the legal implications that you see as stemming from two supposedly identical legal institutions. This is Thurstons argument, that SSM does nothing to alter the legal landscape, yet here you are admitting it!

    Do you see it as a legitimate role of government to give its blessing to SSM as equivalent to heterosexual marriages?

    I don’t think that the government gives “blessings” to heterosexual marriages. What are these blessings? Of course, it is a fact that the government controls the legal regulation of marriage, so in that sense I see it as “legitimate.” I don’t see the regulation of marriage as either implicitly or explicitly “blessing” that action, just as much as the legalization of homosexual acts, adultery, pre-marital sex, and prostitution (in certain states) constitutes a state blessing of any of these activities. Further, I don’t think that people derive their morality from legality. There are many people who want to protect the right to have an abortion who reject it as an ugly practice. Frankly, you seem to offer an underdeveloped notion of the relationship between moral judgments and legality.

    Do you believe that the state has as much interest in protecting and promoting SSM as it does heterosexual marriages?

    To be honest, I don’t know. So far the only reasons you have offered for the state’s interest in heterosexual marriages is because of children and procreation. But, I have argued that this principle does not hold when applied to heterosexuals, so there is no reason why it should hold for homosexuals. Further, since homosexuals procreate and have children, and the state has an interest in relations that procreate and have children, the state should protect these relationships. There is simply no difference between homosexual and heterosexual relationships with respect to children.

    Do you believe that prophetic warnings just may point us to problems that we didn’t foresee?

    Yes, but I am not arguing about the unforeseen, I am arguing about the foreseeable. If someone wants to argue that we simply do not know why we should reject SSM, that is a valid argument. However, when one offers reasons for why, those reasons are subject to scrutiny.

    Do you believe that homosexual conduct is a sin or displeasing to God?

    Relevance? I don’t get what you see as important in this litmus test. Is that those who believe that homosexuality is a sin should oppose SSM? Why? Why shouldn’t they just oppose homosexuality and bring back anti-sodomy laws, or the Levitical punishment? Again, the premise of this question seems to rely on a undeveloped idea of the relationship between sin and civil society. Unless you are suggesting that a Shariah society is the model for modern western states, I don’t see what the category of “sin” adds to this discussion.

    Comment by TT — October 22, 2008 @ 8:04 am

  70. Now just one person explain to me what rights and privileges homosexuals will gain if they are allowed to marry that they didn’t have under the broad CA civil union statutes. Really, this is getting beyond ridiculous. I ask and ask and all of you supporters of SSM just ignore this most vital question.

    Unless you can identify anything concrete, I believe that we have a very strong argument that what is really at issue is an attempt to get the State to bless, promote and condone homosexual unions. That isn’t a proper role for the courts, for the government or for states as I see it. In fact, even suggesting that what is at issue is really just a change of name from “civil union” to “marriage” (as the CA Supreme Court seems to acknowledge!) shows that there is nothing real lost when Proposition 8 passes and a great deal to be gained because we can avoid the kinds of legal entanglements and problems that arise with recognizing same sex “marriage” as a fundamental constitutional right.

    Blake, we tell you and we tell you that you can’t say this and at the same time maintain that SSM leads to “legal entanglements.” If there is no legal difference b/t SSM and domestic partnerships, and therefore all of you “harms” of SSM are either fictional or inevitable regarless of SSM.

    Comment by TT — October 22, 2008 @ 8:14 am

  71. What’s with all the insecure lawyers? This is becoming a lawyer ______ measuring contest to see whose more qualified to comment. This thread has become a good old fashioned “lawyer off.”

    Because you don’t agree with someone doesn’t mean they are unqualified to write on a subject.

    Comment by Dan Rogers — October 22, 2008 @ 9:37 am

  72. I’m the Pasha of Precedent. Y’all are unqualified.

    Comment by Adam Greenwood — October 22, 2008 @ 10:03 am

  73. Blake, #35:

    Thanks for answering part of my question in #23. I say “part” because I’m still unclear what you think would happen to adoption agencies in a “civil union only” country. This is the focus of your #3 concern (and relates to some of your other points as well).

    As far as a religious adoption agency saying, “We do not work with gay couples,” how is it any different whether we have a “civil union” society or a “same-sex and opposite-sex marriage” society? Either way, wouldn’t we expect that (to quote your post), “The State of Mass. would not exempt Catholic Charities from the demand that it perform gay adoptions.”

    Comment by BrianJ — October 22, 2008 @ 10:13 am

  74. Following up with TT’s excellent analysis, let’s not lose sight of the fact that Lawrence v. Texas clearly heralds the end of morals-based legislation, much to Justice Scalia’s chagrin.

    If you include “homosexuality is a sin” in your legal brief as the primary justification to prohibit same-sex marriage, you’re gonna lose your case.

    Comment by ECS — October 22, 2008 @ 10:18 am

  75. TT: “If my continued discussion with you brings out your rude side as it seems to have in your response to me in 45, then let’s both just drop it. In a good faith effort, I would like to continue the discussion, however.”

    TT- I view your response above as accusing and hypersensitive. I’m not sure why you regard it as rude.

    TT: “First, I just don’t think that there is any reason that religious organizations would be forced to perform SSM. ”

    No one has ever claimed, and I certainly haven’t, that any religious organization could be forced to perform SSM. The very notion is ludicrous and I don’t know why you bring it up. So why is it brought up at all?

    TT: “Why should individuals pay more taxes instead of institutions that want to discriminate?”

    Your framing of this issue is something that I reject out of hand. The Church isn’t discriminating if it supports Prop. 8 — it merely doesn’t want the California courts to create fundamental rights without a breath of any language in the Constitution to support such interpretation. It doesn’t want to be made a second class citizen so that homosexuals can have the State bless their union. It doesn’t want to be subjected to the risk of loss of tax benefits and licensing for some of its essential programs so that homosexuals can have their relationship blessed as legally on par with the foundational heterosexual relationship that are truly necessary to perpetuate society. That isn’t discrimination. So when you begin by assuming that such a position is discrimination, I will simply reject your assumption as ill founded.

    TT: You have no evidence to support assertions about Catholic Charities. Well, I have my personal knowledge of conversations with their lawyers — and that is a very significant source. You are being obstinate to deny the obvious: http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp
    http://www.boston.com/news/local/massachusetts/articles/2006/03/10/catholic_charities_to_halt_adoptions_over_issue_involving_gays/

    Frankly, even a modicum of research on your part would have demonstrated that what I am saying is well grounded in fact and that your charge is simply repeating the rhetoric of various gay propaganda about the matter.

    TT: “LET ME BE VERY CLEAR: I don’t think that there is any chance at all that the church will be denied tax-exempt status.”

    I have given an analysis showing how it could easily happen. Nothing you say even responds to that. Your opinion is noted, but without any relevant reasoning to back it up I see no reason to respond further.

    TT: “This is Thurstons argument, that SSM does nothing to alter the legal landscape, yet here you are admitting it!”

    You have misconstrued and twisted my argument. The fact is that passing Prop 8 will not deny homosexual couples any protections. You admit that much. We agree and that is very significant. However, the potential downside that I described remains. So if there is no loss of significant protections if Prop. 8 passes and there is a potential for a significant downside, then it is fairly clear that passage of Prop. 8 is the only rational course of action.

    SSM does alter the landscape significantly, but only for those who oppose SSM. It endangers tax and licensing status and requires the state to engage in adopting a fundamental right that must be protected. It will have a very important impact on how licensing and other statutes are read in CA in the future. That is a very significant impact.

    TT: “I don’t see the regulation of marriage as either implicitly or explicitly “blessing” that action, just as much as the legalization of homosexual acts, adultery, pre-marital sex, and prostitution (in certain states) constitutes a state blessing of any of these activities. Further, I don’t think that people derive their morality from legality. There are many people who want to protect the right to have an abortion who reject it as an ugly practice. Frankly, you seem to offer an underdeveloped notion of the relationship between moral judgments and legality.”

    Let’s see. If marriage is not a blessing of that that union by the state, and it offers no additional protections as you admit, then why do homosexuals want it so badly? I believe that you are just missing the obvious — the only benefit to homosexuals from the CA court’s ruling is that it grants the State’s legal recognition of their relationship as a basic constitutional right. I must have missed the part where prostitution, adultery and pre-marital sex were legalized and protected by the state. What the heck are you talking about?

    TT: “So far the only reasons you have offered for the state’s interest in heterosexual marriages is because of children and procreation. But, I have argued that this principle does not hold when applied to heterosexuals, so there is no reason why it should hold for homosexuals.”

    It is obvious on its face that there is a great interest in fostering and protecting heterosexual marriage because children are generated by such relationships. Generation of children is fundamental to continuation of our social order. Children are not generated by homosexual relationships. The distinction is so obvious that every court to comment (except CA) recognized this fundamental difference. That you fail to acknowledge this clear distinction is astounding.

    Now you have responded that such a rationale doesn’t justify state interest in marriages that cannot generate children like geriatric marriages or infertile marriages. First, infertility often isn’t discovered until well into a marriage. It can often be corrected. So such marriages are not an exception at all. The state really doesn’t have an interest in geriatric marriages. But they don’t present any real problems so why not?

    I also knew that you would refuse to answer the question about whether you regard homosexuality as a sin. It isn’t important to the legal issues per se except that I think we can agree that the State ought not promote and foster immoral conduct. Immoral conduct ought not be presented as morally equal to moral conduct.

    Comment by Blake — October 22, 2008 @ 11:30 am

  76. TT: “Blake, we tell you and we tell you that you can’t say this and at the same time maintain that SSM leads to “legal entanglements.” If there is no legal difference b/t SSM and domestic partnerships, and therefore all of you “harms” of SSM are either fictional or inevitable regarless of SSM.”

    NOTE: you agree that SSM gives no benefit beyond the already existent civil relationship statute. You have admitted that there is no difference and no benefit to SSM beyond civil unions. That is the admission I was looking for because it is true — and it is extremely significant.

    Once again: There is a legal difference if Prop. 8 isn’t passed for those who refuse to treat homosexual unions as a marriage, but not for homosexuals! Note carefully: the difference is that religions that will not perform same sex adoptions may lose their licensing in the state of CA, the charitable exemption from taxation may be revoked for certain activities for such religious groups and same sex marriages will be regarded as equally valuable in the law for the state when in fact they are not. There is a fairly substantial downside to not passing Prop. 8 but no upside for homosexuals if it passes beyond the implicit sociological fact that the state recognizes their civil unions by the name “marriage”. I don’t see that as a legitimate role for government.

    Comment by Blake — October 22, 2008 @ 11:39 am

  77. Blake, (75)

    No one has ever claimed, and I certainly haven’t, that any religious organization could be forced to perform SSM. The very notion is ludicrous and I don’t know why you bring it up.

    Blake, (76)

    Note carefully: the difference is that religions that will not perform same sex adoptions may lose their licensing in the state of CA,

    LOLOLOL!

    Blake, on this thread you have referred to your interlocuters’ arguments as both “BS” and “deep doo-doo”. Which of those finely-tuned legal terms would you apply to your own statements I have quoted here? They cannot possibly both be true.

    Comment by Mark Brown — October 22, 2008 @ 11:59 am

  78. Blake,

    As I understand your argument the taxation and adoption side of Prop 8 will be forced by Same Sex activists to force all groups to accept and recognize them as equals right? None of what you are saying will happen without a complaint from someone. Won’t the men only in the priesthood also be jeopardy if someone complains and files suit? Is there any of our religious beliefs safe from court action? Or is it only when the charities take money from the state that the state antidiscrimination standards go into play?

    The problem I see is that all of the briefs used to promote civil unions as being as good as or similar to marriage will likely be used to force the same issues regardless of which legal term is applied to same sex unions. There will need to a lot more regulation if Prop 8 passes and it is to have the affect the proponents expect.

    Blake you have taken a lot time here and have a lot of well thought out arguments thanks for sharing. I especially like your arguments on the role of government.

    Comment by Bob W — October 22, 2008 @ 12:01 pm

  79. Mark: Do you have a hard time distinguishing between the fact that no religion will be forced to conduct a same sex marriage ceremony and that religious adoptions agencies may be denied licensing? I would just use the fine tuned term from Sesame Street for you: one of these things is not like the other. Not only can both be true, they are.

    Comment by Blake — October 22, 2008 @ 12:03 pm

  80. Bob W. Once again — there is not a fundamental constitutional right in CA for any person to hold the priesthood. So no one can complain if the church doesn’t grant the priesthood and that decision is protected by the 1st Amendment of the US constitution and CA can’t touch it. However, there is now a fundamental right to have one’s same sex relationship treated the same as a heterosexual marriage and those organizations that will not do so are in jeopardy of losing licensing and tax benefits.

    Comment by Blake — October 22, 2008 @ 12:07 pm

  81. ECS: It is my view that the Conn. court just muddled the issue terribly. The issue states ought to be asking is: are there compelling reasons for the state to protect these kinds of relationships?

    Instead, the Conn. court forced the opponents of SSM in Conn. to argue that there is no difference between between SSM and merely civil unions and if a difference cannot be established, then by default the state is required to grant marital rights and status to homosexuals. That is just a non-sequitur. It doesn’t follow that if there is no gain for homosexuals because they already civil union status that therefore the state must grant marital status to them. The Conn. court’s decision is just screwed up in my view.

    Comment by Blake — October 22, 2008 @ 12:16 pm

  82. Blake,

    No one has ever claimed, and I certainly haven’t, that any religious organization could be forced to perform SSM. The very notion is ludicrous and I don’t know why you bring it up.

    Blake, have you even read the church’s position paper, available on our official web site? Here is the verbatim quote:

    Other advocates of same-sex marriage are suggesting that tax exemptions and benefits be withdrawn from any religious organization that does not embrace same-sex unions. [17] Public accommodation laws are already being used as leverage in an attempt to force religious organizations to allow marriage celebrations or receptions in religious facilities that are otherwise open to the public.

    Comment by Mark Brown — October 22, 2008 @ 12:28 pm

  83. Blake – it has been interesting discussing this issue with you. I guess I was originally attracted to this discussion because of your strongly worded disagreement with Mr. Thurston, including characterizing Mr. Thurston’s arguments as “misleading” and “uninformed”.

    After reading your comments, however, it’s clear that you and Mr. Thurston merely share a difference of opinion with respect to the effects of Prop 8, and that you can point to no authority that privileges your interpretation of the law over Mr. Thurston’s. Therefore, in the spirit of maintaining a civil discourse on this controversial topic, may I suggest that you refrain from mischaracterizing Mr. Thurston’s arguments as “misleading” and “uninformed”?

    Comment by ECS — October 22, 2008 @ 12:36 pm

  84. Mark Brown: The Church’s statements are true. They are also consistent with what I said. No religious organization can be forced to perform or recognize a same sex marriage. However, that is different than use of religious organizations facilities for same sex marriages. I got this from another website:

    • In 2006, a Methodist group in New Jersey that rented out its boardwalk to the public for weddings lost tax exemptions after refusing to allow a same-sex commitment ceremony.

    • In April, a New Mexico human rights commission charged a wedding photographer in Albuquerque thousands of dollars in legal fees after she refused, based on her Christian beliefs, a request to shoot a commitment ceremony.

    Can you see that there is a clear difference between requiring a religion to perform or recognize a same sex marriage ceremony and denying it tax exempt status for use of a wedding pavilion if it won’t allow its facilities to be used for a wedding?

    Comment by Blake — October 22, 2008 @ 1:00 pm

  85. Blake, IANAL so help me out–is it possible that the state could start revoking adoption agency licenses if organizations won’t adopt to Domestic Partnership gay couples? (as you argue they would for married gay couples) Thanks.

    Comment by sister blah 2 — October 22, 2008 @ 1:00 pm

  86. Sister Blah: It is possible but much, much less likely because a civil union is simply the extension of benefits to a group without the implication of fundamental rights being involved. However, both the Mass. and Conn. courts held that if the state grants civil union status to homosexuals, then they must be treated equal to marriage. So there is a possible downside that derives from an equal protection analysis.

    What does IANAL mean?

    Comment by Blake — October 22, 2008 @ 1:40 pm

  87. Blake (84),
    What tax exemption did the Methodist group lose? (And, for that matter, is it a church or some other type of group?) I doubt it lost any federal tax exemption, so maybe its NJ tax exemption? And to what extent did it lose its NJ (or whatever) tax exemption? Period, or just on income derived from renting out its boardwalk?

    I’m with ECS–it would take a significant stretch to use Bob Jones to deny the Church its tax exemption for not performing gay marriages. I could see it costing BYU its tax exemption, but I doubt that would have anything to do the legality of marriage between gays.

    As for your litmus test, I’m with the Church on the fact that homosexuality is not a sin. I also agree that, if the prophet says homosexual sex is a sin, then it is. But that has nothing to do with my (undeclared) views on whether California’s Prop. 8 or 9 or whatever should pass. (I don’t live anywhere near CA, so frankly, my view on that is pretty much moot anyway.)

    Comment by Sam B. — October 22, 2008 @ 1:53 pm

  88. Okay, I may have answered my own questions. According to this NPR story, the pavillion is owned by the Ocean Grove Camp Meeting Association (which appears to be a Methodist group, though probably not the Methodist church, administered by a Reverend). The group had its New Jersey tax exemption for the pavillion revoked by the state. It is currently appealing.

    I have no idea how the appeals will turn out, but, given that (a) this was a religious organization, not a church, (b) the revocation came from a state administrative agency, not a court, and (c) they lost their exemption apparently just for income from the pavillion, I think it’s a little hysterical to use this as an example of the impending Armeggedon.

    Comment by Sam B. — October 22, 2008 @ 2:02 pm

  89. IANAL is internet shorthand for the disclaimer, “I am not a lawyer.”

    I asked because I’m wondering if revoking licenses of organizations that wrong you is, itself, a “benefit.” In other words, if the state would take official state action (revoking a license of an adoption agency) on behalf of married people, but not on behalf of domestic-partnered people, then marriage and DP are not the same in terms of benefits provided by the state.

    So that leads me to believe that there is a very real possibility that even if Prop 8 passes, LDSFS could lose its license. (!!!)

    But again, IANAL. :-)

    Comment by sister blah 2 — October 22, 2008 @ 2:05 pm

  90. (Last thing–I should add that I don’t think Blake is being hysterical, because he just pulled it off a website. On its face, the way it was displayed on that site, chances are it’s pretty scary. But whoever first passed this case around as an example of the impending doom, unless its the group wrapped up in litigation itself, is pretty hysterical.)

    Comment by Sam B. — October 22, 2008 @ 2:06 pm

  91. Blake 75,
    I think my wording was a little imprecise on the issues about which I said we probably just have a disagreement, and you rightly picked up on that. I have admitted that your legal reasoning is “possible” as in not logically inconsistent, but I still don’t see these cases as providing probable precedent for removing tax exemption OR adoption privileges since none of these cases involve issues of religious freedom for religious institutions. But, I promised I would move on, so I will since we are not likely to come to an agreement on the issue of the likelihood of the scenarios you outline. I will just repeat that I think that the great weight of precedent protecting religious institutions is sufficient to prevent the kinds of legal ramifications you describe as happening to non-religious institutions like Bob Jones and CC.

    In spite of all of this, I think that we have actually made some significant progress here.

    You say: “NOTE: you agree that SSM gives no benefit beyond the already existent civil relationship statute. You have admitted that there is no difference and no benefit to SSM beyond civil unions. That is the admission I was looking for because it is true — and it is extremely significant.”

    This is funny, because I have been trying to get you to admit the same thing! The reason why is that it shifts the burden to you to prove that there is a negative result from one of these two otherwise equal options. It also shifts the burden to you to demonstrate that domestic partnerships don’t “encourage” long-term homosexual relationships in the same way as SSM. If you can’t prove that there is a unique disadvantage, then there is no reason not to do it. You clarify your argument somewhat a bit later:

    “there is now a fundamental right to have one’s same sex relationship treated the same as a heterosexual marriage and those organizations that will not do so are in jeopardy of losing licensing and tax benefits.” [what are the ways that religious organizations treat heterosexual marriages besides performing them, which of course they don't have to do?]

    Here, you admit that there is a huge difference between DP’s and SSM in that one enjoys the status of a right and the legal implications that follow from that, and the other does not. I think that it is precisely this inequality that is the key issue for both sides. You say that if marriage is considered a” right” (sometimes I can’t tell if you mean all marriages or just homosexual marriages) that it will prevent organizations from being able to discriminate against homosexuals (which is already illegal for non-religious organizations, and religious organizations are already protected against these kinds of equal protection requirements). Again, leaving aside the issue which we have agreed to disagree on about whether or not such legal action against private religious institutions is likely to transpire, this very issue of marriage protected as a right is exactly what is at stake for opponents of Prop 8. You admit as much: “the only benefit to homosexuals from the CA court’s ruling is that it grants the State’s legal recognition of their relationship as a basic constitutional right.”

    If domestic partnerships are not protected as a right, they are subject to future limitations at the whim of the legislature and the public. The very point that you are making about it not being considered a right so that people can discriminate against homosexuals is exactly why they want it to be protected as a right. In this scenario, domestic partnerships are not equal to marriage at all, since they are always contingent and have the potential to be restricted or even reversed. The kind of “social legitimacy” that homosexuals are seeking is not the “promotion” you keep asserting (without ever defining “promotion” and “blessing” despite my numerous requests that you do so), but the protection that “rights” offer beyond mere benefits or privileges. In this sense, it is not the laundry list of marriage benefits like rights to property, hospital visits, tax benefits, etc, that makes SSM important, but its status as a legal right which secures these benefits as a matter of constitutional law, not simply the beneficence of whoever the “majority” happens to be and how strong their homosexual prejudices are. This is the difference between SSM and domestic partnerships that matters.

    What you are still lacking, again in spite of my frequent requests, is a coherent theory of rights. How are they determined? How are various rights weighed in cases where they are in competition? Etc. I ask because you seem to take it as self evident that homosexual marriage is not a right, but heterosexual marriage, providing adoptions and receiving tax benefits are rights. On what basis are you making this assumption? I don’t see how you are making the case that homosexual marriage is not a right, but heterosexual marriage is. I am curious not only about your political philosophy here, but also your theology. If we as LDS believe that marriage is the basis of our entire cosmology, why should we not consider marriage a fundamental right?

    I am going to skip over your other arguments which in my view you haven’t offered substantive analysis to satisfy a reasonable reader, but if there is something really important there that you think I am missing and need to address, I am happy to do so. Hopefully, I think, we have boiled this down to the essential point.

    Comment by TT — October 22, 2008 @ 5:12 pm

  92. TT: “I ask because you seem to take it as self evident that homosexual marriage is not a right, but heterosexual marriage, providing adoptions and receiving tax benefits are rights.”

    I’m not quite clear where you think I claim that heterosexual marriage is a right. I have never claimed that marriage of any sort is a right … so you either misread me or I have not been clear enough (tho I thought I had discussed this explicitly many times). The issue is what kinds of relationships the state has an interest in protecting. No one has a right to marry. How does the state provide such a right if there just isn’t anyone there to marry — is CA going to force someone to marry you? Of course not. Yet a right is something I have a right to — and clearly marriage is not among such rights. Further, even tho CA says that I have a right to marry any adult that I love, it is clear that the court is just muddle-headed. I don’t have a right to marry my sister. So the state has to define the relationships that will be entitled to protection. The CA court equated SSM with heterosexual marriage as a basic right and extended the right to marry any person of adult age that one loves. That is just stupid on its face. The CA court just can’t mean what it clearly says because only a lunkhead would fail to recognize that certain relationships will be not granted the right of marriage despite love.

    A right is an interest that will be protected by the state against the popular will and against the government interest lacking a compelling reason. It’s not difficult. Rights are inalienable. They aren’t granted by government but are inherent in human dignity. Deriving just which interests are rights by this standard is not easy as a matter of philosophical analysis — in fact, it is largely a matter of intuition and just gut knowing in my view. However, in a constitutional government such rights are generally spelled out in that document. The CA court just missed that basic fact.

    Comment by Blake — October 22, 2008 @ 8:50 pm

  93. Blake,
    At the outset, I again want to thank you for an excellent discussion of this issue. You singlehandedly manage to restore my confidence in the ability of my fellow latter-day saints to speak intelligently and civilly about this important issue of our day.

    I do think that in this last exchange, we have made some significant progress is focusing on the central issues and revealing some of the key assumptions that are at stake here.

    Ultimately, I think that you are profoundly and even dangerously wrong on the issue of whether or not marriage is a right, and whether the burden lies on the individuals being married to demonstrate to the state that their marriage is worthy of the benefits that the state gives. I think that you are wrong on these issues jurisprudentially, philosophically, and theologically.

    I think that you are wrong jurisprudentially in saying that marriage is not a right. Of course, you can read the 20 pages of precedent offered in the CA decision in making their conclusion that it is a right. I want to emphasize specifically the anti-slavery movement and the civil rights movement as those perhaps most responsible for raising marriage to the level of a right. One of the defining characteristics of slavery was the denial of the right to marriage. The view that marriage is a right is put forth in the Universal Declaration of Human Rights, to which the US is a signature and one of the principle authors of the document:

    Article 16.

    (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

    (2) Marriage shall be entered into only with the free and full consent of the intending spouses.

    (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

    I hope that it is clear to the readers here that you are taking an radical, and extremely minority position by advocating the idea that no marriage is entered into as a right. Though this view serves your purpose here to deny homosexuals the ability to marry and expect “protection by society and State” in those relationships, the jurisprudential premise required to arrive at that conclusion is likely to be unpersuasive in any court in this country. As I have said, the notion that marriage between two consenting adults is a right is at the heart of the challenge to miscegination laws. To roll that back is to completely undo the project of civil rights. This is nothing short of jurisprudentially wreckless.

    Philosophically, I think that you are wrong for a number of reasons. While you admit that your theory of rights is underdeveloped, in that you are working from a “gut” and “intuition” rather than a well-thought out tradition of human rights discourse, I think that such admissions should be cause for some further theorization on this issue.

    First, I would characterize your view of marriage as incredibly statist. By saying that marriage is not a right, but something which the state can grant or take away from individuals according to its own interests, I think that you put the state as the most important unit in society, and individuals and families as only instrumental to it. Now, this is certainly a coherent position, but one that I find objectionable. Personally, I think that it gets it backwards. The state is there to serve the interests of individuals and families. My view shifts your burden of proof for families “what kinds of relationships the state has an interest in protecting” of of the families to demonstrate to the state their worth and onto the state to demonstrate that it must have a compelling reason to deny such marriages.

    Second, the standard that you have offered for a particular marriage meeting the state’s burden of proof is procreation or at least a good faith presumption of procreation. This strikes me as you making a normative statement about how marriages should be evaluated rather than how they actually are in the present. Leaving aside the evident fact that this not how things are, I think that this standard fails as a normative statement of how things should be for many reasons that I have already laid out. First, a significant portion of heterosexual marriages fail to meet this standard, such as geriatric marriages. Second, your view entails that once procreation is complete in any particular marriage, or before procreation has occurred, the state has no interest in acknowledging such relationships.

    Additionally, as a matter of undeniable fact, homosexual couples engage in procreation and raising children through a number means identical to heterosexual counterparts, including having children from previous heterosexual relationships, adoption, and the use of reproductive technology. That is to say, homosexuals actually meet the standard that you want to impose normatively on marriages in order to meet the state’s criteria.

    On another philosophical note, you have argued that marriage cannot be a right, and that courts cannot logically conclude this, for two reasons: 1) The ontological argument:
    A. The state limits marriage options through incest laws
    B. A right is something which the state cannot limit
    C. Therefore, marriage is not a right

    2)
    1. The state cannot guarantee that any individual will be married
    2. A right is something which the state can guarantee
    3. Therefore, marriage is not a right.

    I think that your logic is flawed here because the assumptions in both 1B and 2B are false assumptions. Consider the right to free speech and the right to bear arms. Neither of these meet the definition of a “right” that you offer in 1B since both can be limited where there is significant public (not necessarily state) interest in doing so. In this way, the right of marriage can still exclude certain things like incest because there is significant reasons why such relationships are not in the public interest, (even though they meet your notion of the state’s interest because such relationships can be reproductive. That is to say, even using your statist understanding of marriage doesn’t work to exclude incestuous marriages since they on face meet the standard of reproduction that the state would require in your framework.)

    As for your definition of a right in 2B, we can again use the right to bear arms. When we think of this right, we do not say that the government must actually guarantee that we have arms, but merely guarantee the possibility for us to have them, should certain conditions be met, such as we can afford to pay for it. To say that marriage is a right is not to say that the government must guarantee that we actually are married, but only that we have the option to marry should certain conditions be met, such as we find a willing partner (not necessarily even someone who we love and who loves us).

    The final reason that I think that your notion of marriage is philosophically suspect is related to the jurisprudential reasons offered above. The problem with a statist view of marriage is that it makes minority populations subject to the “interests” of the state. If, for example, the government decided that it was in its interest to adopt a eugenic program for marriage and reproduction, preventing certain segments of the population from marrying and reproducing because such relationships could not be construed to fit the state’s interest, your position leaves no philosophical or legal grounds on which to object to such a program. This is the primary reason that gay couples are seeking to have their marriages considered as rights, rather than benefits granted at the will of the state. It is not for social acceptance or approval so much as legal protection against future curtailments of their benefits. I have to say that I for one want my relationship to be protected as a right so that the state can never legitimately terminate my marriage on the basis of popular vote.

    A final philosophical note is that I am still completely at a loss for how you have determined that tax exemption and performing adoptions are “inalienable” rights “inherent in human dignity,” but that marriage between two consenting adults is not. I admit at complete bafflment here. When you define a right as “an interest that will be protected by the state against the popular will and against the government interest lacking a compelling reason” that seems to perfectly describe marriage, but not adoptions or tax exemption. Can you please explain? The reason that I think that this is important is because it raises the issue of how we evaluate competing claims. If in fact the right to perform adoptions is more fundamental that the right to marry, than it is easy to make a moral decision when the two become mutually exclusive. If, however, both are rights, the calculus that we use to evaluate how to weigh these competing interests becomes more complex. Now, again, I don’t see these two rights as in conflict at all and I don’t think that we have any reason to fear that SSM will infringe on our rights to tax exemption or adoptions and I find the assumptions that must be made in order to suggest that they are in conflict completely unpersuasive. But that is not my point of inquiry. Rather, if they were to conflict, I must admit that I think that marriages are much fundamental than performing adoptions or being tax exempt, so for me the decision calculus actually leans the other way, that I would want to protect the right of marriage above those other rights.

    Finally, I have suggested that I think that your notion of marriage as not a fundamental right is extremely problematic theologically. Though I am sure that I could find dozens of quotes from generations of GA’s that in fact do say that marriage is a fundamental right, the easiest place being from our defense of polygamy in the past, I have in mind something more substantial that showing that your view is contradicted by GA statements. Rather, I want to suggest that your view leads to such a devaluing of marriage that it is simply theologically unacceptable for LDSs. To say that marriage, which we take to be the foundation of the entire cosmos, is so unimportant that it needs to meet government approval without which it should not be able to exist, contradicts the entire notion of LDS doctrine. The position that you have advanced here denies the central tenent of the Proclamation on the Family, that “The family is ordained of God.” You have suggested that this isn’t true at all, but that the “Family is ordained of the State” and may only exist at its will. I don’t know how any LDS could accept such an impoverished view of marriage. If what we believe is most fundamental to society and to our eternal salvation and to our very notion of our religion and indeed our very notion of God’s divine design should not be protected as a right, as you have argued here, I think that your view is significantly in tension with what rights we believe to be given by God himself.

    While I think that your view that marriage is not a right is in the radical extreme jurisprudentially, incoherent and dangerous philosophically, and in direct opposition to the most fundamental teachings of the LDS church, that is not to say that there are no good arguments against SSM. Rather, it is my sincere hope that no one rely on these arguments that you have set forth in coming to their conclusion to oppose SSM.

    Comment by TT — October 23, 2008 @ 8:17 am

  94. TT: “I hope that it is clear to the readers here that you are taking an radical, and extremely minority position by advocating the idea that no marriage is entered into as a right.”

    My view that a State has nothing more than civil authority is hardly new or radical. Further, the view that marriage as a religious rite is not a constitutional right is obvious on its face. I make a distinction between the civil authority of governments and the authority to mimic religious rites — which I believe states don’t have. I don’t know anyone who does.

    It is widely recognized that heterosexual marriage is a basic right — though not under state constitutions. Further, it has never before been been held that the legislature and a citizen’s referendum vote could not define the scope of marriage. However, it is recognized everywhere except California that this right is fundamental or established with respect to heterosexual couples but not to same sex couples because there is a rational distinction based on biology and not invidious discrimination. I’m clearly not radical there either.

    Your comparison of homosexual marriage to miscegination laws has repeatedly been rejected by courts. Your charge that I am being “jurisprudentially reckless” because I am rolling back a fundamental right recognized as basic in miscegination laws is mere rhetoric that has no sound basis in fact and is itself a failure to recognize that courts have long recognized that same sex marriage is not like miscegination. Here is the New York court’s analysis showing that there are distinctions between race and sexual orientation because the distinction is based on biology and not invidious discrimination: http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf

    Further, I am very critical when someone attributes to me an argument that I don’t make. You do so here to set up a straw man. It is very bad form on your part. You say that I argue:

    A. The state limits marriage options through incest laws
    B. A right is something which the state cannot limit
    C. Therefore, marriage is not a right.

    Your framing of this argument is not only mistaken but uncharitable. In fact what I argue is:

    A. The CA court held that: ““As past cases establish (here asserted without any citation to cases), the substantive right of two adults who share a loving relationship to join together to form an officially recognized family of their own — and if the couple choose, to raise children within that family — constitutes a vitally important attribute of the fundamental interest in liberty and personal autonomy that the California Constitution secures to all persons for the benefit of both the individual and society.” (p. 7)

    B. A entails that any two adults who love each other have a right to marry each other.

    C. Brothers may love their sisters and yet cannot marry them.

    D. B is inconsistent with C and therefore the supposed right established by CA for two people to marry if they love each other is too broad.

    I also concluded that the legislature must define which loving relationships will be recognized as entitled to marriage because it is not the role of courts to make these distinctions if no fundamental right is violated. It is therefore not a fundamental right for any two people who love each other to marry as the argument for same sex marriage must assume. That argument is logically valid and I believe sound.

    Your jurisprudence argument won’t hold water. No state is legally bound by the Universal Declaration of Human Rights. It doesn’t have the force of law. No one would cite it as precedent unless they were desperate.

    TT: “Additionally, as a matter of undeniable fact, homosexual couples engage in procreation and raising children through a number means identical to heterosexual counterparts, including having children from previous heterosexual relationships, adoption, and the use of reproductive technology.”

    Not only is i deniable that “homosexual couples engage in procreation,” it is obviously false on its face. That a single person have same sex attraction may sire another is true – but only in a heterosexual relation or through medical intervention. That homosexuals who have had children divorce and then form couples is true and I have stated that such situations justifies the state in granting protections of civil unions. Homosexual relations do not generate children. The difference is based on simple biological fact and not invidious discrimination.

    Finally, I am completely at a loss for where you believe I state that tax exemptions and adoptions are inalienable rights. I have never said anything to remotely support that view and I don’t believe it. So your rant is last 2 penultimate paragraphs of # 93 way off base. You continue to attribute to me things that I don’t say and attempt to foist positions that I don’t support. From now on I suggest that you quote directly and let me speak for myself.

    Theologically I think that you miss my point — again. There is a fundamental right to participate in a religious rite to marry if one chooses. There is no fundamental right to have a religious organization approve the marriage. There is no right to have a “religious rite” performed and marriage is a religious rite as I see it. The government has only civil power. It can only perform civil ceremonies. It cannot mimic or attempt to perform a religious rite without violating the establishment clause.

    My view leads to a valuing of religious rites and a recognition of the limitations of governmental authority. What is ordained of God is a ceremony performed by religious authority. It was a limitation recognized by Joseph Smith and I believe that he was right. With respect to polygamy, I believe that the law can and ought to be that only the first marriage will be recognized as a civil marriage, and any other marriage has no civil authority and won’t be recognized but it could be recognized by a religious organization as valid. Anything else violates the Constitution as I read it.

    Finally, you assert that I have “suggested that” the family is not ordained of God. Will you never cease to misstate, misconstrue and attempt disembowel strawmen? You know I have never suggested anything remotely of that sort. The state can define which relationships it chooses to protect. That means, for instance, that the state need not protect second and third marriages while the first remains undissolved. Such a fact does not entail or imply that the Church may not have a different view of what constitutes a family. The Church may not recognize a civil divorce for instance.

    TT, let me say that I have rarely seen a post as recklessly misleading and misstating another person’s position as your # 93. That has not been my experience of you in prior discussions. What is up?

    Comment by Blake — October 23, 2008 @ 9:51 am

  95. Thanks to Blake, TT and the rest of the participants on this thread. It is certainly the best thread I’ve read on Prop 8 and civil SSM. Thanks for the time and effort you’ve all expended to articulate your insights and positions.

    Comment by Steven B — October 23, 2008 @ 10:29 am

  96. Blake,
    I certainly did not mean to mischaracterize your argument in any way, and I think that you do provide some further clarification in your follow up post. For the most part, I believe that my 93 is a accurate critique of what you said in 92:

    “I’m not quite clear where you think I claim that heterosexual marriage is a right. I have never claimed that marriage of any sort is a right … so you either misread me or I have not been clear enough (tho I thought I had discussed this explicitly many times)….No one has a right to marry.”

    As I said, I find this assertion incredibly problematic. When I cited the UNDHR, I didn’t mean to imply that it was legally binding for the US, only to illustrate that your assertion that “No one has a right to marry” is rejected on principle by pretty much every nation in the world. That’s all.

    As for the miscegenation example, I think that you are responding to a different argument. I did not suggest that SSM should be protected because it is analogous to miscegenation. Rather, I said that the only basis on which miscegenation can be objected to is if marriage is considered to be a right. In your construction, you eviscerate this defense against miscegenation laws by saying that marriage is not a right.

    One last minor issue of clarification, you speak of “the right to originate adoptions” in the original post. Your right that I couldn’t find an instance in which you suggested that it was a right of the church to have tax exemption, though you did speak of the loss of this status as making you a “second class citizen.” I understood that to mean that you felt it to be a denial of a right, which I may have misunderstood.

    I think that if there is any confusion about what you mean, it likely arises from the fact that you are using two contradictory definitions of marriage.

    A. “instead of marriage being a privilege that the legislature can define and decide which relationships the State has an interest in protecting, the right to marry is now a substantive right that cannot be redefined by either the people or the legislature.”

    B. “There is no right to have a “religious rite” performed and marriage is a religious rite as I see it. The government has only civil power. It can only perform civil ceremonies. It cannot mimic or attempt to perform a religious rite without violating the establishment clause.”

    While the first says that marriage is a privilege that belongs to the legislature to grant, the second says that the State has no authority over marriage whatsoever. You seem to move between these two definitions to make different kinds of arguments, though it is obvious that they directly contradict each other.

    The problem of confusion about your position is that both these definitions are mythical, in the sense that they are your own normative creations rather than descriptions of any actual state of affairs. Neither says anything about what marriage IS, only what it OUGHT to be. The first definition, the statist definition, is subject to the critiques that I offered above. The second definition, the ecclesiarchical definition, is even more fantastical. You confuse the genus of marriage with one species of marriage, namely, a religious rite, but this mistakes the part for the whole both legally and logically. Further, it does nothing to prevent SSM because there are numerous Christian churches and non-Christian religions that are theologically committed to performing such marriages.

    “There is no fundamental right to have a religious organization approve the marriage.”

    Exactly. No one believes that there is, and no advocate of SSM would or could ever mount a convincing legal argument for why this would be the case. Thus the legal argument for why SSM will never have any negative legal effect on the Church. I’ve been trying to get you to say that forever!

    Okay, I really really need to focus on other stuff right now. Thanks again for the great conversation. I’ll give you the last word.

    Steven, it is nice to know someone is reading!

    Comment by TT — October 23, 2008 @ 12:40 pm

  97. This has been an interesting and enlightening discussion. I thank all who are participating in a substantive way. Leaving me without thanks, in that regard.

    Comment by BHodges — October 23, 2008 @ 5:32 pm

  98. Blake, I think you are missing the point of TT’s argument on jurisprudential, philosophical and theological grounds.

    The applicable rule statement from the President of the Church is: “The third important principle pertains to the source of basic human rights. Rights are either God-given as part of the divine plan, or they are granted by government as part of the political plan. If we accept the premise that human rights are granted by government, then we must be willing to accept the corollary that they can be denied by government. … Since God created people with certain inalienable rights, and they, in turn, created government to help secure and safeguard those rights, it follows that the people are superior to the creature they created.” (Benson, The Constitution A Heavenly Banner, 1986, available at speeches.byu.edu)

    Also, can you please answer my question in #56.

    Comment by sunnankar — October 24, 2008 @ 12:18 am

  99. Sunnaker: Just how you think that the notion that God gives basic rights and not the state is inconsistent with my response to TT is beyond me. I agree with this statement by Pres. Benson (tho I disagree with many other statements he made).d

    TT: “I think that if there is any confusion about what you mean, it likely arises from the fact that you are using two contradictory definitions of marriage.
    A. “instead of marriage being a privilege that the legislature can define and decide which relationships the State has an interest in protecting, the right to marry is now a substantive right that cannot be redefined by either the people or the legislature.”
    B. “There is no right to have a “religious rite” performed and marriage is a religious rite as I see it. The government has only civil power. It can only perform civil ceremonies. It cannot mimic or attempt to perform a religious rite without violating the establishment clause.”

    TT, this statement shows that you have simply vastly misunderstood what I am saying. These two statements are not contradictions. The first quote from me is a statement that CA has now recognized same sex marriage as a fundamental right. It is true that that is what the CA court did. The second is a statement about the proper role of government in relation to marriage. Government can only perform civil ceremonies. Now not only are these statements not contradictory, they are both quite obviously true.

    Here is what you concluded from these two statements: “While the first says that marriage is a privilege that belongs to the legislature to grant, the second says that the State has no authority over marriage whatsoever. You seem to move between these two definitions to make different kinds of arguments, though it is obvious that they directly contradict each other.”

    No, the first says that CA has held that the CA legislature cannot define the scope of the right to marry. So you don’t understand the statement or misconstrue it. The second doesn’t say that no state has any authority to do marriages at all, but only that any marriage is in reality merely a civil ceremony and it cannot be the same thing as a religious rite which is what marriage is in the context of a religious marriage. The State obviously cannot become entangled in mimicking religious rites or performing them. Thus, the name “marriage” is a mis-nomer. So in the first statement I describe a fact: the holding of the CA court. In the second, I argue that states cannot be doing the same thing as religious organizations and thus ought not insist on the name “marriage” for any ceremony it does. It ought to call every state sanctioned ceremony merely a “civil union.”

    These two statement couldn’t possibly contradict each other because they don’t even address the same issue. They certainly don’t assert logically contrary propositions.

    Comment by Blake — October 24, 2008 @ 7:10 am

  100. It is not illegal to be gay in California. It is against the State and Federal constitution to deny any minority group equal protection under the law. Prop 8 is an attempt to deny equality to homosexuals by eliminating the opportunity for civil ceremony to gays and lesbians.

    Why? Because supporters of Prop 8 believe homosexuality is a choice. If homosexuality is accepted by society than more people may choose an alternate lifestyle. They believe the way you prevent homosexuality is with bigotry and hate.

    Comment by Dan H — October 24, 2008 @ 11:06 pm

  101. Dan: Your ad hominem attack is contrary to the very spirit of equality you urge. Further, you are simply mistaken. California already had a civil unions statute that provides full equality and the state provided basis for civil ceremonies — the only thing that changes is that the very same bundle of protections and rights for gays will be called marriage. Further, you are similarly mistaken that all persons with same sex attraction have not choice. There is a continuum of commitment to one orientations or another — with a substantial plurality quite oriented toward choosing either way. Finally, distinctions between homosexual marriage and gay marriage are not based on bigotry but on biology.

    The only thing that changes with passage of Prop. 8 is that those who don’t believe in same sex marriage will not be threatened with denial of licensing for their programs and tax exemptions for certain activities.

    Further, there is nothing wrong with have a sexual orientation. Everyone has one. It is the choices that we make that have moral consequences — including the choice to engage in sexual relations.

    Comment by Blake — October 25, 2008 @ 10:34 am

  102. I was a bit behind Blake at BYU and the U of U Law School. In quickly reading the 100 comments, I believe that I am the only California family lawyer posting here. While allowing gay marriage would increase the divorces that I would handle, personally I am against it, but I realize the legality has not been truly discussed.

    There are several issues which are missing in the discussion. With sodomy being legal in California, under the Right to Privacy that Ronald Regan signed into law in 1972, there is no legal bar to same sex marriage under the law. I believe that even if Prop 8 passes, it will be oveturned in court (by the same 4 of 7 Justices). I still have a Yes on 8 sign in my yard, but I personally believe that under the law, legal conduct will be allowed to have equal protection.

    Now if we could get rid of Regan’s blind right to privacy that was used to allow abortion back in 1972, then we could change things.

    Comment by gamerjohn — October 25, 2008 @ 7:18 pm

  103. 102: “I believe that even if Prop 8 passes, it will be oveturned in court (by the same 4 of 7 Justices).”

    I have been saying this for quite some time now, but the argument against me usually goes like this: “The Supreme Court can’t do judicial review for constitutional amendments, therefore it can’t be overturned.”

    Could you please respond to that, gamerjohn?

    Comment by Mark N. — October 25, 2008 @ 7:39 pm

  104. Oops, wanted to respond to one more thing.

    Gamerjohn, it’s your contention then that same-sex marriage is an unforeseen result of something that Governor Reagan did back in 1972?

    Oh, the irony: the patron saint of conservatism brought us same-sex marriage.

    Wow.

    Comment by Mark N. — October 25, 2008 @ 7:42 pm

  105. Here’s a quasi-legal question for either side of the debate.

    Given the LDS Church’s position on chastity (i.e. members of the Church shall have no sexual relations, except with their husbands or wives with whom they are legally and lawfully married), if Prop 8 fails, and unions between two men or two women are considered marriages, legal and lawful, will that not eventually create a situation wherein homosexual intercourse will have to be recognized as acceptable under the covenant of chastity, as long as the partners are married? In other words, will what is now considered a sin have to be accepted? If not, how do you think the Church will respond to this?

    Comment by Trenton — October 26, 2008 @ 12:50 am

  106. 105: “will what is now considered a sin have to be accepted? If not, how do you think the Church will respond to this?”

    No, they’ll simply tighten up the Church’s definition of what constitutes a “marriage”, which is the direction they should have originally taken, IMO. Who cares how the state wants to go about defining marriage, anyways? Why should the Church be dependent on the unstable definitions of worldly organizations and authorities?

    Comment by Mark N. — October 26, 2008 @ 8:52 am

  107. If same sex marriage is allowed in California, here is what can happen you your family:

    http://link.brightcove.com/services/player/bcpid1815820715?bctid=1822459319

    Comment by Lucy Stern — October 27, 2008 @ 8:13 pm

  108. I recently read an article by Robin Fretwell Wilson, “A Matter of Conviction: Moral Clashes over Same-Sex Adoption,” in BYU’s Journal of Public Law that addresses some of the issues mentioned in Blake’s initial article and the subsequent string of comments. Professor Wilson teaches at Washington & Lee law school. Her article discusses how states–including CA–might prevent the potential problems that Blake has outlined. The article mentions a few of the cases and news stories that have garned some attention on this web page. I recommend to all that have read this far down the page to check out the article. It is available online at http://www.law2.byu.edu/jpl/Vol22.2/Wilson.pdf

    Comment by Jon — October 27, 2008 @ 10:21 pm

  109. No.22 “Sam B” says “

    One argument that, frankly, mystifies me is the argument about teaching gay marriage in the schools. Years and years (and years) ago when I was a public schoolchild in California, I don’t recall marriage really ever coming up, especially not in any normative manner.

    Luckily for you, there are others who have had more recent experience with California public schools.

    My daughter’s school has planned a field trip to the San Francisco City Courthouse (50 miles away) for a “learning experience” about SSM, in the run up to the election. Since this is being pushed by the PTA president (lesbian vocal anti-8 crusader), I assume there will be some sort of stance taken on the normalcy of SSM and homosexuality in the “learning experience.” *The whole school* has planned to go on this activity. They are taking almost a full day of instruction to do it.

    Did I mention it’s an elementary school, and my daughter is in 4th grade? It seems the SSM proponents want the K-5 kids onboard. They must be a valuable voting block; or maybe they just need credulous kids to support them, and want to make up the kids’ minds as early as possible.

    Comment by N. — October 28, 2008 @ 10:38 am

  110. Blake, awesome job! Bob W, the first response to Blake’s comment, I will direct to the following website, http://www.marketwatch.com/news/story/yes-8-campaign-slams-new/story.aspx?guid={108BC8D7-7655-48A8-A5AD-E071FA74B37F}&dist=hppr
    Your claim that schools don’t teach about marriage is erroneous and misleading. While you are only 4% true, 96% of schools in California are required to teach sex education and with that course comes the topic of marriage. Don’t drink the O’Connell Koolaid!

    Comment by Erik M — October 28, 2008 @ 1:39 pm

  111. Same-sex marriage is not an issue of sex education – it’s about family education. My children are taught things at their school every day that I disagree with, and when it comes up, I let them know I disagree. You are all far too scared. Your children will be alright. There are thousands of children that WILL NOT be alright if prop 8 passes, however, because they’ll languish in State care rather than be raised by a loving, same-sex family.

    Comment by Frank Sampedro — October 30, 2008 @ 6:11 pm

  112. Now wait a minute Frank. There will be a lot of kids who’s parents will suddenly no longer be married, but Prop 8 won’t have any effect on adoptions, will it?

    Comment by Steven B — October 30, 2008 @ 9:15 pm

  113. N., can’t you opt out of your child attending the marriage in question, which wasn’t attendance, but meeting afterwards, right?, and teach your child, in the privacy of your home in how evil the action is? I am sure many things—coffee, cigarettes, divorce, parents not married in the temple, single parent families, alcohol—that you also disagree with. Yet, do you think they should be disallowed by a change in the constitution? Why this one?

    The school at issue is an arts charter school, well known for their liberal bias. Perhaps you could send your child to a different, more conservative school, perhaps full of children of those other yes on 8 supporters that are quite vocal on their disdain for the Mormon religion, homeschool,l…. many solutions that don’t require such a drastic measure. Besides, I fail to see how prop. 8 will affect this particular issue, since the teacher in question could still get married, although without the blessings of the state, and parents could still arrange for children to attend.

    Comment by djinn — October 31, 2008 @ 8:31 am

  114. For the Record: while I accept, know, and esteem many people who are homosexually active or same sex attracted, I think the benefits and incentives associated with marriage are meant primarily as a protection for the natural and normal process of having children rather than adoption, insemenation, or otherwise. While we can accept these different processes, we can not normalize them, nor do I think it is in our best interest to do so. I think esteeming sexual preference as such an important difference says we think physical attraction is the most important attribute of relationships, and that frankly bothers me. I think this because I feel that men and women are intellectually and emotionally equivilant. A man who is attracted to other men should be able to find a woman who is intellectually and emotionally equivilant to what they are interested in and be able to have just as solid a relationship with a person of the opposite sex, with all the added benefits such as the potential for sexual reproduction, etc that are otherwise not available. Thus Gay Civil Unions are not equivilant to Marriage, because by their very nature they lack certain potential capabilities. Not only do I think they should remain seperate, but I think incentives should be in place so society encourages heterosexual marriage rather than other relationships (tax benefits, etc.)

    [edited for clarity]

    Comment by Matt W. — October 31, 2008 @ 12:15 pm

  115. Matt W:
    For the Record: while I accept, know, and esteem many people who are homosexually active or same sex attracted [Relevance?], I think the benefits and incentives associated with marriage are meant primarily as a protection for the natural and normal process of having children [Do you mean sexual intercourse that results in pregnancy and birth?] (rather than adoption, insemenation, or otherwise) While we can accept these [And the antecedent to “these” is?] differences, we can not normalize them [Again, normalize what], nor do I think it is in our [Our as in LDS? Society? Everyone?] best interest to do so. I think esteeming as a legitimate important difference sexual preference says we think physical attraction is the most important attribute of relationships [If we esteem sexual preference we somehow think it is the most important attribute of relationships? Can you explain how you logically get from “esteeming” sexual preference to making physical attraction the most important? I don’t understand that.], and that frankly bothers me. I think this because I feel the men and women are intellectually and emotionally equivilant [Does this stem from what the Proclamation on the Family says?]. A man who is attracted to other men should be able to find a woman who is intellectually and emotionally equivilant to a man [Didn’t you say men and women are intellectually and emotionally equivalent? Why would a person have to even search to find a match then?] and be able to have just as solid a relationship with a person of the opposite sex [Is their some empirical data, some scripture, or other authority outside of your own opinion for believing this?], with all the added benefits such as the potential for sexual reproduction, etc that are otherwise not available. Thus Gay Civil Unions are not equivilant to Marriage, because by their very nature they lack certain potential capabilities [Don’t many hetero marriages also by their very nature lack these same potential capabilities?]. Not only do I think they should remain seperate, but I think incentives should be in place so society encourages heterosexual marriage rather than other relationships (tax benefits, etc.)

    Could you provide some clarification?

    :-)

    Comment by we — October 31, 2008 @ 3:11 pm

  116. To answer your questions:
    Obvious answer, don’t be silly.
    Yes.
    The antecedent isn’t relevant to the point.
    them of course.
    yes yes and yes.
    sorry I didn’t word that well,but you know what I meant. [I edited my other comment for clarity]
    no.
    yes I did. Everyone does, we aren’t born in couples you know.
    Just my personal experience.
    hetero marriage by definition does not lack the potential capability. It’s intrinsic to the concept thereof. Think Schroedinger’s Cat.

    Yes.

    Comment by Matt W. — November 1, 2008 @ 7:48 am

  117. The argument that marraige is not taught in school is a smokescreen by the NO ON PROP 8 campaign. What the secularists are really wanting to do is to have children taught that gay marraige and homosexual sex is OK. That way, they silence their critics by having the State legislate morality. Since the traditional religions mostly condemn Gay Marraige, they seem to need a ratification, justification for their actions. What they do in private is their business. What they do constitutionally will bring Government and the State into the argument and will end in the State legislating morality. Religious freedom will be infringed upon because as soon as the State says it is legal and lawful for gays to marry, they open the floodgate to discrimination against Churches and individuals who hold that it is wrong. When these Churches and individuals refuse to perform gay marraiges, they will be sued for discrimination. When these Churches and indidivduals refuse to grant adoption of little children to homosexual partners, they will be sued. It will be argued that it is discriminary to teach Sex Education for hetrosexuals only, and that schools must teach GAY sex ed. If the government gets involved in moral issues, ie… Abortion, the end result is always problems. There is a separation of Church and State for a reason in the Constitution. It protects society from tyranny. Remember, Engand had a State religion too. That is why the founders put those checks and balances in the Constitution. Today, a new religion is growing in America. That religion called secularism is based in Godless intelectualism, where no one is allowed by law, to call any other persons actions wrong or especially sinful. Our financial system is based upon integrity, and our nation still requires when we give testimony in court to place our hand upon hte Bible to swear to tell the truth. By embracing Secualism and aiding its efforts to remove religion and its “thou shalt nots” from the society, they are actually bringing down society. Rome fell due to corruption and immorality. The religion of this nation has served us well after WW2 when we did not punish Japan and Germany but in a Biblical Christlike way rebuilt them. Those who oppose PROPOSITON 8, mark the beginning of religious intolerance and the beginning of the tolerance of everything EXEPT anyone or anything that tells them “THOU SHALT NOT”. Protect our religon, protect little children, VOTE YES on PROP 8!

    Comment by ron — November 2, 2008 @ 11:16 pm

  118. I have not responded personally to Blake’s post primarily because I’ve just been too busy on other matters, which I realize is not a particularly good reason. I’m still busy, so this will be a bit rushed.

    First, as to my qualifications, I have represented myself accurately in my Commentary. Nevertheless, I’m not asking anyone to accept what I say because of my affiliation with BYU Law School, which I readily admit does not involve constitutional or family law. In fact, I regret that my original Commentary used a standard bio that mentioned the Law School and I have since replaced it with one that does not. I should note that this was done solely at my initiative; BYU has not requested I do so. Some “No on 8” supporters have misrepresented my Commentary and my affiliation with BYU and I was forced to issue a clarifying press release, which can be found many places, including here

    Nevertheless, I submit that my experience as a litigator in a great variety of areas for 35 years in California, along with my educational background, makes me as qualified as Blake (who doesn’t practice in California) to comment on an issue involving California law. Moreover, my analysis has been supported by a group of 59 distinguished constitutional and family law professors from California Law Schools. Although my analysis came first, it has been supported almost point for point by the board of editors of the Los Angeles Times (one of the nation’s most prestigious newspapers). See “Debunking the myths used to promote the ban on same-sex marriage” and “A lesson about Prop 8: Despite what proponents say, its defeat would not change what California’s schools teach.”

    Now I realize that none of this will convince an apologist, as Blake certainly is. When you start with the idea that something must be true because your religious leaders say it is, then nothing that conflicts with that will be persuasive. I think Blake and I would both agree that a good lawyer can find arguments for and against anything.

    What Blake has done, however, is very similar to what some “No on 8” people have done, and that is to claim erroneously that my commentary criticizes “the Church’s 12 points.” (I’m not even sure what those 12 points are.) I thought I had made it clear that I was responding to a specific document titled “Six Consequences the Coalition has Identified if Prop 8 Fails.” This document was not authored by the Church, it was not approved by the Church, and it has never appeared on the Church’s Prop 8 website. Although the document was unsigned, I have come to understand that it was not even drafted by a lawyer. In fact, I believe the Church is distancing itself from this document because it is so obviously misleading. Blake would have been better served had he acknowledged that the document was poorly written, that my commentary correctly analyzed the points made in the document, and and then expound on legitimate consequences of Prop 8’s failure. Had he done so, we might have found ourselves in agreement on some points. I have never contended that there would be no consequences if Prop 8 failed—only that the consequences identified in “Six Consequences” are either false or misleading.

    My aim in writing my Commentary on (as clearly stated therein) was to help the Church avoid embarrassment by having its members circulate such a document. The first person I sent my commentary to was the general counsel for the Church.

    Briefly regarding Blake’s six numbered points:

    1. Clearly students in California will learn that same-sex marriage is legally equivalent to heterosexual marriage if Prop 8 fails. Duh! In fact, we have made certain that our children will learn about same-sex marriage by taking them with us as we go door to door and having them stand with us on street corners waiving signs. Are they not going to learn the outcome of what they are being taught about? Of course they are. But the “Six Consequences” document claimed that they “will have to be taught in schools that same-sex marriage is just as good as traditional marriage”—in other words, that it is morally equivalent. This is nonsense. I could go through each provision of the California Education Code to show this, but space doesn’t permit. Just read the California law professors’ statement and the first LA Times editorial referred to above and you’ll get the gist.

    2. I discussed the New Jersey case in my commentary because I had read several other articles shortly before “Six Consequences” was published that referenced that case and it was clear to me that he authors of “Six Consequences” were talking about it, since their paper tracked these earlier articles. I am aware of the Bob Jones case, of course. What Blake fails to mention is that the Bob Jones decision was specifically based on the strong national interest in preventing racial discrimination in education. At no time has the IRS ever refused any church or religious entity a tax deduction because it engaged in racial discrimination. Bob Jones University was not affiliated with any particular religious sect, but there were many of them that preached the evils of miscegenation (including many in our own Church). There is no chance that the IRS will require the Church to perform gay marriages or risk losing its tax exempt status. Now, to give Blake and Bob Jones their due, I would not quarrel with the proposition that sometime in the very distant future there is a remote possibility that the IRS could deny BYU its tax exempt status if it instituted a program to expel married gay students. However, I think there is a big difference between racial discrimination (which is tangentially related to religious worship, at best, and where the national interest is enormously strong) and homosexual relationships (which are more directly tied to recognized religious interests), so I personally doubt this would ever happen. Nevertheless I recognize the remote (in terms of time and likelihood) possibility.

    3. Regarding adoptions, again Blake claims I state I argue that the “Church” misleads. Read my commentary. I didn’t say that. I said that some Prop 8 proponents have claimed Catholic Charities was forced to close its doors, though the “Six Consequences” document does not say so. Concerning the rest of Blake’s argument, I’m not sure he is even disagreeing with my Commentary. I think he is saying that somehow the courts will give greater preference to a married gay couple in an adoption hearing than to a registered domestic partnership. Well, maybe they will, but there is nothing in the law that says so. Blake is speculating here and, of course, he is entitled to speculate. My speculation is that if LDS Family Services continues only to do voluntary adoptions, where the birth parents approve the adoptive parents, there will not be a problem unless the birth parents chooses a gay couple. And if they do, I think their wishes should prevail.

    Well – that is all the time I have at the moment. I have to go teach my class. Maybe I’ll have time later in the day to respond to the last three points.

    I don’t want to leave the impression that I think all of Blake’s arguments are wrong. I do, however, think he misunderstand my Commentary as challenging more than it does. With a matter as controversial as Prop 8, it would be amazing if there weren’t good arguments to be made on both sides. It is just that the arguments presented as they are in “Six Consequences” are not good.

    I can understand why the Church is concerned about the passage of Prop 8 and I do not doubt the Brethren’s sincerity. I also know that they love and accept those who choose to oppose Proposition 8—I know because I have spoken to several personally. I respect their right to counsel support for Prop 8 and they respect my right not to support it.

    Comment by Morris Thurston — November 3, 2008 @ 8:56 am

  119. [My response, continued.] I’m back from the Law School and will try to finish this off. Obviously this post isn’t intended to convince anyone how to vote on Prop 8. The readers of this blog have no doubt already figured that out. But since Blake has no doubt spent a good amount of time and thought on this blog, he deserves my response.

    4. Blake, I really don’t understand your point 4. You say: “[The failure of Prop 8] may well change the requirement that an LDS student will be required to house with someone of the opposite or same sex given the equal protection arguments of the California Supreme Court.” Are you suggesting that an unmarried LDS male student may be required to room with an unmarried female student? That seems a little far-fetched to me, but certainly it has nothing to do with the definition of marriage being between a man and a woman. Perhaps you’ve already answered this somewhere in the string of comments, but I just don’t have time to wade through all of them.

    You say it is “easy to see how the Yeshiva University precedent would be adopted and extended in California unless Prop 8 passes.” But since the Yeshiva precedent related to discrimination against gays (not gay marriage), and since California already has anti-discrimination laws that include gays, and since California already treats same-sex domestic partnerships as the equivalent of marriage, doesn’t it stand to reason that if California wanted to force gay married housing on a university they could do it whether or not Prop 8 passes? I can’t see the state ever trying to force a religious institution to do this (which is what the “Six Consequences” memo was talking about), but I suppose reasonable minds could differ on that. If this happens within my lifetime, however, I’ll buy you dinner at the finest fast-food joint in California (which most people would agree is In-N-Out Burger).

    5. We agree on this one!

    6. Regarding cost—whether Prop 8 wins or loses, there will certainly be litigation and expenses attendant to it. Nobody really knows whether those litigation expenses will be greater or lesser if Prop 8 passes or fails.

    Blake, there isn’t a chance in the world that if Prop 8 passes the California laws that prohibit discrimination based on sexual preference in the workplace and in commerce will be rolled back. It just isn’t going to happen. In fact, the Church and other religious right organizations have lost so much good will in this campaign that, if anything, the laws will be strengthened in favor of non-discrimination. Also, since it just takes a majority of votes to pass a constitutional amendment in California (a really dumb law, I know), I suspect that if Prop 8 passes we’ll see future efforts to pass another constitutional amendment reversing this one. And I suspect eventually those efforts will succeed. Unless we can convert a whole lot more people to Mormonism in California (doubtful, given the passions of this campaign) or unless half of Utah moves here (again doubtful, given the housing cost differential, though with home prices plummeting, maybe not), California will likely eventually be a gay marriage state. But now I’m entering the realm of prophecy, and I claim no special expertise there. Your guess may be as good as mine, but I’m thinking you probably agree with me on this one.

    I agree with your comment that the best scientific data suggests there is a continuum concerning homosexual tendencies. I would support the idea that the state should not be involved in marriage and that it should be a purely religious rite. Perhaps that is a way to resolve these differences sometime in the future.

    Regarding the ability of anyone to control their actions, of course they can theoretically, but in practicality many cannot. If they could we wouldn’t have any fat people in the Church, since everyone knows being fat is unhealthy, not to mention unpleasant. The question that most concerns me is how are we going to truly minister to our gay brothers and sisters? I know many of them who were faithful in every respect as young people and who were wracked with guilt when they couldn’t live a life of celibacy. How many heterosexual Church members would be able to maintain celibacy if that were the rule? Granted, some are forced to do so because of circumstances beyond their control. But if you met someone you loved, and who loved you back, and you were told you could not marry and live together, how successful would you be in maintaining your celibacy? Perhaps you are stronger than most people, but I submit that most heterosexuals could not, or would not, do so. It is easy for we married people to tell gay people, “just remain celibate.” But we’re kidding ourselves if we think the celibacy rule is the same for gays as it is for heterosexuals.

    I wonder if there isn’t some way to keep a larger percentage of our gay brothers and sisters in the Church? We’re missing out on a lot of talented and spiritually gifted people. I could imagine ways it could happen, but I’ll not pretend to be a seer. As a believing Mormon, I’ll have to leave that sort of revelation up to our Prophet, and clearly it hasn’t yet been received.

    Comment by Morris Thurston — November 3, 2008 @ 6:58 pm

  120. One final note, if you’ll indulge me in a personal reminiscence. When I was in law school many decades ago, Harvard required every first year student to participate in the Ames Moot Court competition. I did and was matched up against a fellow first-year who had received his doctorate in English from Yale and had been a professor at another Ivy League school for a couple of years. He was older and presumably wiser, and I felt overmatched. When he arrived at the oral argument, however, he had alcohol on his breath, indicating he was dealing with the pressure in his own way. This calmed my nerves and somehow I won.

    Flash forward to my third year. I had become a member of the six-person team (or was it eight?) from the Learned Hand Club that was arguing in the big finale, having won all the earlier rounds. Our distinguished three-judge panel included two Circuit Court judges and U.S. Supreme Court justice Thurgood Marshall. The issue? Whether members of a Southwest Native American tribe could be convicted of a drug offense for smoking peyote as a part of a tribal religious rite. And, ironically, one of the key precedents was Reynolds v. United States—the Mormon polygamy case.

    This began my interest in both constitutional and religious law. Some of your contributors have taken rather personal pot shots at me and my qualifications, but I’ll bet none of them has appeared before Thurgood Marshall on a case involving the intersection of religion and the constitution.

    Not sayin’ that makes me right; just mentioning it.

    Comment by Morris Thurston — November 3, 2008 @ 7:20 pm

  121. Morris: We both want the debate re: Prop 8 to be based on facts and not erroneous legal analysis. In fact, I am encouraged that you agreed with my analysis by and large — and I look forward to sitting down to that meal you promised me.

    The decisive argument in my view is this (one I gave many times on this thread and you failed to respond at all): gay couples do not gain a single right and do not lose any protections by passing Prop 8 that they will continue to have except the judgment that their union constitutes a “marriage.” No gain and no loss for gays. In fact, you underscore this point by insisting that the very liberal nondiscrimination laws remain in place and won’t be rolled back even if Prop 8 passes. However, as you admit yourself here, there are possible downside concerns for religious organizations that believe that gay sex is immoral and won’t approve adoptions by gays or treat their unions just as they would heterosexual unions.

    That also means that those who cry that the Church is discriminating against gays (like a certain ex-BYU QB’s wife) is simple non-sense. The Church thru Prop 8 will not affect any protections or privileges that gays have by promoting Prop 8 — it merely wants to avoid the downside for faiths like ours that teach that gay sex is not ordained of God whether the State wants to baptize it as a marriage or not.

    You admit that BYU in the future could lose tax exempt status. Why should it have to face the risk lose such status to give gays the right to call their union a marriage? You and I both agree that the moniker “marriage” is a religious rite and I suggest that it follows that it is not the role of government to promote such unions as either marriages or equally in the interest of the State to promote as heterosexual unions.

    It is also good to know that you agree that small children will be taught that gay marriage is legally equivalent to heterosexual marriage. What you failed to address, as I expected, was the inference that teachers must also teach that there is no moral difference between gay sex and heterosexual sex, between gay marriage and heterosexual marriage.

    You also insert a “duh” after your comment. Are you implying that I am stupid for mastering for the obvious? My problem is that you also miss the obvious as it played out in San Francisco schools — children will be taught that there is no distinction made by the State between gay sex and heterosexual sex and no teacher will be able to teach that the State has a greater interest in promoting heterosexual marriage — which is rather clearly does. Why the ban on the obvious? It is a clear pragmatic result of the CA law.

    Second, you tout your analysis as being supported by other “law professors.” Well, whoopdee doo. The fact is that law becomes the political view of the judge and professor alike when judges are left to create new rights out of nothing. Four CA judges imposed their political views on the entire State even in the face of a democratic referendum and not a shred of language in the document they claim to interpret to address a basic right of marriage for gays. It is an egregious example of judicial arrogance and making the political views of four judges (against 3) more important than the entire States democratic process.

    Further, all of the law professors in the world cannot avoid the obvious trajectory of CA law: those who refuse to provide services to gays equal to that of heteros will not be licensed by the State as shown in North Coast Women’s Care Medical Group v. Superior Court of San Diego County (Benitez). The writing is pretty well on the wall: LDS Social Services has a great deal to be concerned about. You can’t avoid the facts of this holding and the rationale supporting it. Your analysis is wrong in light of this case — the Church has a very real concern and I believe that it is very likely that LDSFS will lose licensing to perform adoptions in CA based on the North Coast case.

    While we’re at it, this is the great LIE that I believe is an ill-advised suggestion on your part: “Regarding the ability of anyone to control their actions, of course they can theoretically, but in practicality many cannot.” If someone cannot control actions pragmatically (as opposed to orientation) then they are not morally responsible for their actions and we may excuse their failure to control their behavior in extreme cases of abnormal psychology. However, I believe that you are just dead wrong about this basic moral fact. I believe that your belief in this regard is exactly what Korihor taught, that it is a denial of the most basic gospel teachings and that it is an excuse and rationalization for a victimology that is not justified. Of course if you are just a hard determinist who believes that many people (all?) are just incapable of controlling their behavior, then you are right about not holding homosexuals (or anyone else for that matter) morally responsible — but I don’t see how you can hold such a belief consistent with the gospel. I suggest that this belief is likely the real difference between why we assess these issues differently.

    I also agree that we are served by extending fellowship to gays and to demonstrating love for them. However, this is the dividing line: I believe the Church when it says that gay sex is immoral. I say that we accept gays like the rest of us sinners at Church, but that doesn’t mean that we ought to condone immoral conduct as being equivalent to sacred relationships.

    In any event, thanks for engaging the conversation.

    Comment by Blake — November 3, 2008 @ 8:48 pm

  122. I hope the mor(m)on church’s tax exempt status is revoked. It should be. Mormons are hateful and bigoted. I won’t believe otherwise until there is an official church apology to both blacks and the gay men tortured at BYU.

    Comment by Kalvin — November 8, 2008 @ 12:26 am

  123. Curses! Who let the secret out about the “gay men torture” degree offered at BYU?

    Comment by Geoff J — November 8, 2008 @ 1:32 am

  124. Kalvin: Your statements about Mormons only show what a hypocrite looks like in living color. All that the Church did was exercise its right to inform its members and ask them to act in relation to a moral issue. Is that somehow hateful and bigoted. the Charge of hate is shameful because passing Prop 8 didn’t affect any protections, privileges or rights of gays except he semantic issue of what we call a “marriage.” I have made that argument here repeatedly and you fail to even engage with honor or argument that could be taken as good faith. Instead you call names.

    And the “torture” at BYU? Really? Your comment is self-refuting. No wonder No On 8 lost if it had supporters like you since it had nothing but non-sense and name-calling to offer.

    Finally, perhaps you missed the fact that the arguments made by Yes on 8 were more persuasive to 53% of Californians than the No on 8 propaganda. That is what you have to address.

    Comment by Blake — November 8, 2008 @ 7:25 pm

  125. Blake—”What makes you think that SSM makes homosexuals happy?” Bombastically pontificate on all the legal points you want. You, after all, are the self-appointed legal expert here. You, however, are neither a sociologist nor a psychologist. And since only titles and not life experience count for anything in your mind, why the inference here that SSM doesn’t make homosexuals happy?

    “Finally, perhaps you missed the fact that the arguments made by Yes on 8 were more persuasive to 53% of Californians than the No on 8 propaganda. That is what you have to address.”

    Only a matter of time. In the future you will need to address being in the discriminatory minority.

    Comment by Holden Caulfield — July 3, 2009 @ 9:33 am

  126. I’m 5’4" and 140, it is actually terrible but I am able to

    Comment by lida daidaihua strong version — May 2, 2013 @ 9:35 pm

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