“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.

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.

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.

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.

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.

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.

Yes.