From Rob, gay lawyer friend in CA:
Judge Walker nailed it: "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples." Sadly, some persist in thinking civil rights are subject to popular vote. Sorry folks but that's never been how this country works.From a friend in the ward where I grew up:
To those that are upset that Prop 8 was ruled unconstitutional, All I have to say is remember, the majority should never get to vote on the rights of the minority. If we did woman would not have gotten the right vote, Interracial marriage would be illegal, blacks would still be slaves, and it would still be legal to k......ill a Mormon in parts of the country. IF you feel the same repost this on your profile!
I myself posted a status that resulted in lots of comments and an interesting discussion over two days between friends and family. I decided to archive it here so that it would be easier for me to find again if I ever wanted to.
My status: Yay for the judge in CA for overturning prop 8! But the battle is probably not over... Wednesday at 3:01pm
Jen: a step closer!
Me: Yes it is. Baby steps!
Jen: actually, there are only two more steps
Mindy: At least it has begun!
Kyle: I agree Sarah. But it is such a good day! I'm very excited about it!
Me: Yes, exciting, but it brings back the discussion at church of how evil the world is, just when I was starting to enjoy church again. Oh well, so worth it.
J: Easy for you to say - you don't live in CA where the rights of the majority are being overthrown - esp in schools where parents will have no control over what their children are taught
S: Sarah, I SO completely had the same thought. As soon as I heard my second thought (first being "woot!!") was about how I don't think I can deal with the discussions and lamenting and making everything political again!!
Ugh. Heaven, grant me patience!
E: I totally feel for you. But there's a lot of strength to be drawn from the knowledge that we're on the right side of history :)
S: I, for one, am kind of pumped to be out of town for a birthday party this weekend and will miss church. Maybe people will get it out of their systems! Here's hoping.
Me: J, I'm sorry this is hard on you. I am grateful, though, that my children are learning at home about all types of families that love each other and take care of each other. They have friends (twins, age 8) with two dads. They witnessed an awesome wedding ceremony of two of our family's best friends, Brandon and Michael, who love us and my kids know they would do anything for us. I am sad that my kids peers do not get to learn about these incredible families in their schools.
Me: S, we are skipping out this week too for gay day at lagoon!
E, you are so right. Quite the historical day. I will never forget election day 2008 and how depressed I was.
Austin: yeah.... HOW DARE schools tell kids that not all people are the same... and that we all come from different backgrounds.
Diversity is awful, and telling our kids about it? ug. just terrible.
Missouri didn't want to explain polygamy to their children, so they just chased the Mormons out.... and got an extermination order... you'd think that people like J would be more understanding.
Emily: With people like Sarah reaching out to steady her sister J, you know, you just have to know that good things are bound to happen!! You totally rock Sarah!!
Me: I am actually pleased that my cousin J has been willing to ask questions and contribute her point of view. Most of my family just ignores the issue. We are all in different circumstances and have different opportunities to learn life lessons at our own pace.
I totally understand your frustration, Austin. The lack of understanding from your family as you married Todd was tough, I know. Love you guys...hang in there. Someday they will realize what great guys you both are and that your love for each other is real, something to celebrate rather than despise.
Thanks Emily. (blush)
Austin: .... I love you Sarah... You never cease to put things in perspective
Me: I wish I had a better perspective on my own situation! My positive attitude comes and goes with that one...
Emily: it is true that everyone needs a safe place to ask, comment and share feelings no matter the view or opinion. everyone counts. hope you guys have fun on gay lagoon day!! that's great!
David: Whenever I find my opinion is different from the LDS Church opinion I think about this:
“ . . . there is one kind of latter-day destruction that has always sounded to me more personal than public, more individual than collective—a warning, perhaps more applicable inside the Church than outside it. The Savior warned that in the last days even those of the covenant, the very elect, could be deceived by the enemy of truth.”
Jeffrey R. Holland, “Safety for the Soul,” Ensign, Nov. 2009, 88
-- Just sayin'
Me: I agree, David. Even the leaders of the church can be deceived on this issue, and I believe they are.
David: Please find even one example in history or scripture where a prophet was wrong and led the church astray. Just one.
David: OH, and not apostles who left the church or were apostate. A president of the church in modern times, or a prophet from scriptural times.
Lisa: David, David: I could list examples, but do not wish to start an argument. Sarah is right. I am hetero myself, but the LDS leaders are wrong about homosexuality. Everyone is equal, and it is better to marry than to fornicate.
David:A mere assertion is not an argument or proof. A marriage not proper in the sight of God would then still be fornication. Common Law marriages are not recognized by the church even when they are hetero couples.
If the LDS Church is right, then the gay marriages are not valid and the couples are still fornicating.
We already disagree about whether the LDS Church is right or not, simply providing examples of other Prophets leading the people astray would not start an 'in process' argument. It would just add weight to your opinion.
Just because we are being civil doesn't mean we aren't arguing.
Lisa: Joseph Smith led us all astray by lying numerous times, too many to list.
David: As in you believe he was a false prophet and should not have been followed at all? Or that he was an imperfect person who made bad decisions?
Is there a lie he told where he said "it is the mind and will of the Lord to do X" and simply lied about it to lead the people astray? I don't know of any.
If you believe that Joseph Smith is a false prophet then when you say the LDS Church is wrong about same-sex marriage then the assertion is a bit disingenuous by implying that the LDS Church is right on many things but wrong on this one.
Emily: The LDS church's racial policies were also a "leading astray", of sorts. You are probably not old enough to remember, David, the proposed presidential ticket of George Wallace and Ezra Taft Benson in 1968. The buzz was that they would be a good ticket, because with their racial views, they would "keep the negroes in line". This would not have been possible without all the racist rhetoric from the pulpit of LDS leaders.
Emily: If the LDS church is wrong, then they are promoting discrimination against a particular group based on their biases, and are leading their membership to do the same, much as they did with their racial policies.
David: Racists using LDS doctrine to further their own racist ideas is not the same as LDS doctrine approving of racism. Same with sexism and other discriminatory talk.
LDS doctrine does not promote discrimination or hate against people with same-gender attraction. Simply saying something is a sin is not the same as encouraging discrimination.
The LDS Church has officially promoted the SLC anti-discrimination ordinance too.
Me: I knew I had friends that would pipe in on this one for me. :)
My thoughts and explanation are way too long for this forum. I think I've blogged them before, but maybe a new blog post is in order. David, I will send you a link.
All I know is that I have prayed and received a clear answer from my heavenly father about where to stand on this issue. For me it is such a personal thing, seeing one of the dads of the eight year old twins tear up any time he thinks about them and his husband being okay were something to happen to him, or wondering how the kids will be treated here in Utah in their schools or elsewhere as they grow up with two dads.
For me it is not a matter of immorality, or following the leaders of the church. It is about real people that are incredible and upstanding members of the community that are constantly worrying about their families and their futures, it is about strengthening families that might look a bit different, but are still families, it's about the children having the same right as other children to love their parents and to have to feel like they have to hide how their family is different.
And then on a very personal level, it is to prevent other wives and children from going through what I (and my kids) have and will go through. So that the church does not convince gay members that they have to fit a mold and marry someone of the opposite sex to gain salvation, just to rip that family apart later when they realize they cannot do it any more.
So, examples from the scriptures do not matter to me. It is my life and my circumstances that no one else can truly understand, and they have no right to say I am deceived.
But thanks for the dialog, David. It has been amusing and thought provoking.
Greg: Sarah, I just wanted to say thank you for your approach. We all need to follow our conscience here, and love people for who they are. Love what you said.
Me: Thanks, Greg. I am really trying not to offend, so I'm glad you feel like I am succeeding. :)
Me: “The greatest fear I have is that the people of this Church will accept what we say as the will of the Lord without first praying about it and getting the witness within their own hearts that what we say is the word of the Lord.” --Brigham Young
Me: "As a General Authority, I have the responsibility to preach general principles. When I do, I don’t try to define all the exceptions. There are exceptions to some rules. For example, we believe the commandment is not violated by killing pursuant to a lawful order in an armed conflict. But don’t ask me to give an opinion on your exception. I only teach the general rules. Whether an exception applies to you is your responsibility. You must work that out individually between you and the Lord.
The Prophet Joseph Smith taught this same thing in another way. When he was asked how he governed such a diverse group of Saints, he said, “I teach them correct principles, and they govern themselves.” In what I have just said, I am simply teaching correct principles and inviting each one of you to act upon these principles by governing yourself.
- Dallin H. Oaks, CES Fireside May 1, 2005
Danielle: leviticus 18:22
Brandon: Danielle thank you for proving the case in the judge's decision. He stated "Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better
than a relationship between two men or two women, this belief is not a proper basis on which to legislate." Apparently you can't just make laws based on moral basis, it has to be made on rational ones. The Pro-Prop 8 side and you have yet to show a rational reason to deny me my rights.
Me: Danielle, oh pah-lease, not that one. It soooo does not prove anything.
For your enjoyment, see http://serendipitystr8wife.blogspot.com/2010/07/bible-says-so.html
Danielle: well when a person rational reasoning preceeds morality we will live in a very scary world
Brandon: I would rather live in that world where law is based of science and reason than a world where it is based of interpretation of scripture. I think in your heart you would agree with me unless you ARE planning to move to Iran and any where they practice Sharia law. Scary worlds indeed where here we have equality and there we don't... Take your pick.
Me: There are scary things in this world, and gay marriage is not one of them.
Brandon: I don't know Sarah, sometimes it scares me.. lol. I wonder if I can make it work, if he really knows how much I love him, I wonder if we can raise children to respect other's beliefs, even when they say their daddies are going to hell. I think it is scary for all the same reasons any marriage is scary, it is unknown. I do know that for as scary as the unknowns marriage brings us, the lack of them is much much worse.
Sarah: Oh, Brandon, he does. Marriage in general is scary, but not in the way Danielle is referring of course. You and Michael (and your marriage) are the least scary thing ever to me. Love ya. Wish you guys would come play with us in midway! Can we hang out at lagoon on Sunday?
E: Danielle, it's not that we're disregarding morality--it's that one person's concept of morality differs from another's. That's why it is unconstitutional to impose one's moral/religious beliefs on someone else. When this does happen, you get the kind of oppression seen in countries that practice Sharia law, as mentioned before. So, my idea of morality may entail you wearing a burkha, but if our laws are anchored in logic and rational thought--as opposed to a group's (even a majority's) moral/religious views--you don't have to wear one.
Di: Okay, I'm going to bring a whole different dimension to this picture, from the POV of a student of the Constitution.
For the purpose of this point, I don't care what cause or issue is on the ballot, and whether that issue is "right" or "wrong," but when ONE judge can overturn the votes of 7 MILLION people, we are in perilous straits as a nation. The "voice of the people" is and has been sacred since the Founding Fathers struggled to establish our Constitution. If the outcome of a fair election can be so easily overturned--on any issue or candidate--we might as well live in Venezuela.
For example, I didn't vote for Obama, but I accepted the results of that election. What if some judge had overturned his electoral victory? Can you imagine how cheated the people who voted for him would have felt? It's no different in this case. If you don't like the outcome of an election, accept it for now and bring it back to the ballot next time. that's how our electoral system is *supposed* to work.
BTW, "Voice of the people" goes back much farther than our Constitution. Please see Mosiah 29, especially verses 25-27 and 34.
Brandon: Ok This is easy... We are not a democracy. We are a constitutional republic that has checks and balances. Thank goodness someone saw something wrong with the majority voting away rights on a minority. It is BECAUSE of the constitution this is possible. It is about checks and balances. If the SCOTUS found that Obama was not the president, we probably would feel cheated and move on. If you don't remember that is exactly what happened with Al Gore and George W. Bush.
It sounds like you are grasping for straws, the tyranny of the majority is a very scary thing. What about the 6.5 million that voted for equality and justice?
Brandon: My writing was hurried... to clarify it is because of the constitution we have a system of checks and balances. It has worked for hundreds of years. If the civil rights were voted on in that era they would not have been granted. The majority in the south was opposed to integration and equality. The voice of the people seems to be a screaming mob, hence checks and balances to make sure everyone is protected equally under the law.
Brandon: IT was the voice of the people that caused Gov. Boggs to sign the Mormon extermination order. Their sacred, sacred right to kill all Mormons..
Di: Brandon, you're absolutely right--we're NOT a democracy; we're a federal republic. Having a straight "democracy" is how Venezuela, among others, got itself into the mess it's in. You're not telling me anything I don't know; you're just throwing out the usual strawmen.
Brandon: Then I am confused by your question. I understand how 7 million Californians feel slighted. I have felt that way when I think I am right, however I feel better knowing that elections on any issue can be taken to court. It has functioned in our country for the whole history like that. I don't see how you can say we haven't. So if I did not answer your question, then it is because I don't know what you are saying. I am throwing out strawmen? All the better for you grasping at straws.. (That is meant as a joke and a pun.)
David: I guess it depends on how you interpret the constitution.
It was originally an agreement between independent states to form a collective government to facilitate their living together. As a republic the states were supposed to have a significant voice at the national level.
We have moved away from those ideas in the last hundred years and moving more toward a national government representing the people more than the states. More of a democracy than a republic. The Senators now answer to the people instead of the states. The president is still elected by the electoral college although there is a movement to change that as well.
Under the Constitution the states are supposed to have sole discretion over domestic relations: e.g. marriage, divorce, child custody, adoption, probate, property distribution. The states were sovereigns who joined together to form the national government and now the national government is encroaching on the powers of the states.
At the state level, democracy is fine since you have to elect your local leaders somehow. Simply saying we are supposed to be a republic and not a democracy does not account for local and state issues that are often determined in a democratic fashion. Two levels of government, two different sets of rules.
The supreme court will probably uphold the decision of the district court because they can. Basing their decisions on the constitution is something they quit doing decades ago. Popular culture and ever evolving norms rule the day.
Scott: So... When the voice of the people overrode Pilate (who wanted to let Jesus go) so that he was (as the Majority wanted) crucified, that was a good thing?
And if we're going to cite scripture, let's read the chapter you referenced in Mosiah:
In verse 11: "let us appoint judges, to judge this people *according to our law*" (emphasis mine)
Majority rule in and of itself is a recipe for disaster. We have judges whose job it is to interpret the law and ensure that the rights of the individual and the minority are not infringed upon by the "will of the people". The system is working exactly as it should.
Brandon: Well said David. With that said do you feel like the people on any level of government should be able to vote on civil rights? It reminds me of when 9 judges rejected the "voice of the people" and used the electoral college as grounds for GWB being pres. instead of AG..I think it was perfectly justifiable to reject the democratic majority because we have another system in place.(The electoral college.) Just like I feel civil rights shouldn't be put to a vote. The legal precedence of marriage is that it is it is a civil right. The main argument is on whether or not civil rights are 'votable' or inalienable. I believe they are inalienable. You two are saying they should be put up to debate correct?
Brandon: I don't understand how you can say SCOTUS isn't following their only duty to uphold the constitution. From what I have seen they have done that in most if not all cases.
David: Well, my last opinion was more of a realist interpretation of what is going on vs. how I feel things should be.
The Constitution was formed under a natural law world view with a divine creator. Our rights were God given, not government given. Letting the government define our rights is a recipe for disaster.
The people of course did not agree on religion and doctrine per se but it was pretty universally held that natural law is something to be lived and adhered to in personal and public life. We have collectively abandoned these ideas for many years now, for good or ill it is what is happening.
I think the more local the government, the more restrictive it can potentially be. If a city wants to have a red-light district, or drinking district and exclude those activities everywhere else, more power to them. The discussion is more nuanced and detailed than this page will allow but the idea is more control at the more local area where your voice is the most powerful. Also I am not a big fan of "civil" rights inasmuch as they are sort of government given/enforced and subject to change more so than the idea of natural or god given rights.
I think we should have many more freedoms than we currently have.
OK, now back to your questions about the Supreme Court.
The court has become more interested in following precedent instead of just giving a plain reading to the constitution which has led to some disappointing results.
Brown v. The Board of Education would likely not have taken as long to get to without the deference to precedent. U.S. v. Dickerson decided that Miranda is now a part of the Constitution when it is just a Supreme Court decision. Kelo v. New London also decided that raising additional tax dollars is important enough to trigger eminent domain.
Many decisions have been based on the changing attitudes of the Justices instead of any serious intellectual considerations or reliance on the plain language of the constitution.
Di: Scott, you only quoted half of verse 11. It goes on to say, "and we will newly arrange the affairs of this people, for we will appoint wise men to be judges, that will judge this people according to the commandments of God." (Oops, there's that dratted religious angle again. . . .) Verse 12 adds: "Now it is better that a man should be judged of God than of man, for the judgments of God are always just, but the judgments of man are not always just."
Minority rule is also a recipe for disaster.
Greg: OK, hypothetically, (or maybe practically :) , I don't believe in the same religious principles as you. But you do believe in religious tolerance as stated by "let them worship how.where,or what they may", which sounds good to me.
How do you effectively pull this off? Is it always majority rule, or does the judicial branch play a role? If so, what is the role? Is it possible for majority rule to overstep its bounds? BTW, have any of you actually read the decision? If so, what are your opinions?
David: I read 40+ pages of the opinion about the conclusions of law and orders. It follows the template and reasoning from Lawrence v. Texas about sodomy laws.
The findings of fact are certainly debatable but whatever. Many of the conclusions of law are based on the idea that there is no difference between gay and straight couples with regard to child rearing, no measurable benefits to preferring traditional marriage over gay marriage, etc...
It is a long and fancy way of saying "all things being equal, there is no legitimate reason to legislate against gay marriage". It went out of its way to say that civil unions are not good enough, it has to be marriage to be fair.
Scott: Taken in its entirety, Mosiah 29 teaches that the optimal form of government is a theocratic monarchy--one led by a prophet-king who can govern as directed by God.
However (the chapter says), there is considerable risk in a monarchy, because you can't guarantee that every king in the succession will listen to God and govern righteously.
Without that guarantee, then, the best government is one in which the people choose judges to interpret the law ("according to the commandments of God", says verse 11)...
The problem is, how do we judge "according to the commandments of God" when we can't agree on what those commandments are? Not only do the major religions (Judaism, Islam, Christianity) disagree on this, but so do various sects within the major divisions.
The founding fathers recognized this, and they expressly forbade the establishment of a state religion. In this country, no single understanding of what "the commandments of God" are can hold sway. Instead, laws and judgments are made based on the idea of "inalienable rights"--the right to life, liberty, and the pursuit of happiness.
The whole same-sex marriage debate boils down to whether or not (civil) marriage--the joining of two people in a partnership that gives them rights and privileges unavailable to those not married--is itself a "right". In "Loving v Virginia" SCOTUS declared that, as they understood the Constitution, it IS.
If that is indeed the case, then no single interpretation of "the commandments of God" can be used to *deny* that right to a minority. If that right *is* to be withheld, the reasons for doing so must withstand scrutiny and be deemed legitimate.
The defense, in this particular case, failed to demonstrate that there was any reason other the religiously-dictated morality to deny same-sex couples the right to marry. Just because a bare majority *believes* that same-sex relationships are wrong, that isn't sufficient reason to deny same-sex couples government recognition of their unions. They would need to demonstrate practical negative consequences to legalized same-sex marriage and they were unable to do so.
I second Greg's suggestion that you actually *read* the ruling (if you haven't already done so). I haven't read the entire thing yet, but from what I have seen Judge Walker was very thorough in his deliberation and in his rendering of a final verdict.
The judge finds, from evidence heard, that gay/lesbian committed relationships are in no demonstrable way inferior to heterosexual committed relationships, and that a civil union is demonstrably inferior to a marriage in benefits and social status. If this is so, then I would argue that he ruled appropriately.
If not, then either he heard the evidence wrong, the evidence wasn't presented well, or more evidence needs to be brought. Do you have an opinion regarding this, David? Which of the evidentiary points don't you agree with, if any?
It seems to me that we didn't ask him to take into account the vote, but rather the evidence presented.
Would you agree that if a civil right is at stake, a vote is irrelevant?
David : @Scott: Part of the First Amendment about congress not establishing religion was so that the States still could a state religion if they wanted to w/o national gov't interference.
(I'm too lazy to find a better source.)
The states were able to legislate based on religious values and it was not a problem. Times change, laws change, things change.
@Greg: Votes do matter. Civil rights can be regulated either through the initiative process or on the action of the legislature which is elected.
Simply calling something a civil right does not end the discussion. Many of our rights are restricted in ways that have been found to be reasonable. We have age of consent laws for when someone can form a contract, get married, get a tattoo, drink alcohol, etc...
Each regulation or law has to be evaluated based on the intent, the regulated behavior, the benefit or interest in the law, etc. . .
There are studies that show detriments to children who are not raised in the traditional nuclear family. It matters to have a mom and a dad.
There are studies that show it doesn't matter. Not having a mom or not having a dad does not matter.
I am unfortunately jaded enough to think that when it comes to these kinds of sociological studies the group paying for the study gets the result they want or they will not be paying for more studies. Money talks. (This is also why drugs with serious side effects are approved by the FDA, btw.)
Something that is not really up to debate is what is happening in Europe and the way things are going here we are probably only a couple decades behind them.
The native population of continental Europe is shrinking at an alarming rate. The growth in population has been from an influx of immigrants from third world countries whose culture is not as open and accepting as the Europeans have been. The laws will be changing and there will be a loss of freedom.
There is no way to know for certain the causes of the drop in birth rates of the native population but the libertine lifestyle, lack of support for traditional families by government and popular culture, militant secularism, fast and free abortion, and resulting nihilism are not helping things.
Demographically speaking, the future freedom of Europe is doomed.
Gay marriage is only one part of the equation, but supporting traditional values that lead to more children is a good thing.
I have no idea if the demographics of Europe were argued in court or not but it is a legitimate state interest to have enough children taught about freedom and liberal ideals to maintain future freedom.
I'm not going to wade through the findings of fact to see what I agree with or not. The skeptic in me suspects that the judge was possibly not as fair as he could have been.
Even if the judge was not fair, as the "finder of facts" the appeals court gives deference to him in determining the credibility of witnesses, the weight of facts, etc. . . and is not likely to be overturned on his findings of fact anyway.
Reasonable minds may disagree and think children are something to be avoided because of overpopulation.
Sarah: I told David I would blog about this and give him a link. The post contains my own personal feelings without quoting scriptures or sharing political views on the constitution and government. I'm afraid that my cousins will believe me crazy if they read it, and will begin praying for me to see the error of my ways (if they aren't already) :) Oh well, here goes...
Greg: David, thanks for the conversation. Sounds like we disagree on some very basic stuff. Out of deference to Sarah, and her original post, I'm going to let thing go at that, and echo her sentiment. I've read the findings,and find them to be a step in what I believe to be the right direction, so, on with the battle. Again,thanks. It is always enlightening to discuss, even when disagreement exists.
David: Well, I do my best to be state my views without being a jerk about it.
I hope I did well. Thanks for asking. Just because we disagree doesn't mean we can't be civil and get along.
Sarah: I think you guys have done well at having a good discussion. Not what I expected when i posted my status Wednesday... :)
Greg: Whatever the legal/moral arguments, there's a human side to all this, and I just want to say, I support all the wonderful people that are fighting to keep their lives afloat as we work to more understanding. You and Scott are some of my heroes in this Sarah, so as you said "Yay for the judge in CA for overturning prop 8!". Maybe some day we'll make sense of it all. Read your blog post, and appreciate where you're coming from.