A change on Domestic Partnerships?

Today’s statement from the church about marriage is intriguing because of what it says about non-marital legal rights. The statement reads, in part:

The Church does not object to rights (already established in California) regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the family or the constitutional rights of churches and their adherents to administer and practice their religion free from government interference.

As a factual matter, registered domestic partners (including same-sex partners) receive broad protection under existing state law, and did so even prior to In Re Marriage Cases. Probate, housing, insurance, and medical rights are among the rights that same-sex couples could receive if they registered their partnership. (For instance, Cal residents have the same legal right to family leave to care for an ill domestic partner as they would an ill spouse.)

The California code is explicit in this recognition. California Family Code, section 297.5 provides: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provision or sources of law, as are granted to and imposed upon spouses.” And it seems, from today’s statement, that the church is more or less okay with this. (!)

The Protectmarriage.com coalition has historically opposed these rights. This does not appear on the current version of the proteactmarriage.com website, but is clear from prior site versions:

6. Would the ProtectMarriage Amendment allow “homosexual marriage by a different name”?

Answer: No. By recognizing marriage between a man and a woman as the only legal union in California , this amendment would prevent any law from recognizing, or giving rights on the basis of, other personal relationships that attempt to imitate marriage, such as homosexual “domestic partnerships” or “civil unions.”

7. Would the ProtectMarriage Amendment allow the Legislature to give, or require private employers to give, the legal rights and benefits of married spouses to other relationships, such as “domestic partnerships”?

Answer: No. Since marriage would be the only legal union that may be recognized under the ProtectMarriage Amendment, no other adult relationships that attempt to imitate marriage could be legally recognized. Since no other type of intimate union would be legally recognized, it logically follows that there would also be no basis upon which to confer rights, benefits, or obligations on such un-recognized relationships.

In addition, the church previously appeared to oppose Domestic Partner rights. Elder Wickman stated:

PUBLIC AFFAIRS: Would you extend the same argument against same-gender marriage to civil unions or some kind of benefits short of marriage?

ELDER WICKMAN: One way to think of marriage is as a bundle of rights associated with what it means for two people to be married. What the First Presidency has done is express its support of marriage and for that bundle of rights belonging to a man and a woman. The First Presidency hasn’t expressed itself concerning any specific right. It really doesn’t matter what you call it. If you have some legally sanctioned relationship with the bundle of legal rights traditionally belonging to marriage and governing authority has slapped a label on it, whether it is civil union or domestic partnership or whatever label it’s given, it is nonetheless tantamount to marriage. That is something to which our doctrine simply requires us to speak out and say, “That is not right. That’s not appropriate.”

In contrast, the current Newsroom statement appears to be a move towards acceptance of Domestic Partner rights — mentioning specific, important legal rights, like probate, medical care, and employment law protections — so long as the label of marriage is not included.

As I said at Sunstone, Prop 8 itself — and for that matter, In re Marriage Cases — is just not that big of a deal, legally. It only concerns the marriage label. For same-sex couples I know, In re Marriage Cases was a welcome development, but the real substantive rights of same-sex couples — which were already established under state law — are much more important.

If the church is truly moving away from opposition to Domestic Partner rights, and towards a stance of only opposing the label of marriage, that’s bound to be welcome news for same-sex couples, particularly our gay and lesbian LDS brothers and sisters.

Comments

  1. I am not sure the church had joined the coalition when the old site was up. So perhaps that isn’t the best example of what the church once endorsed. Also, I don’t think Elder Wickman’s comments are any different that what the church stance is now. One (and the church) could both back domestic partnerships, which could include all kinds of relationships (sibling groups, parent-child, friends) in which people choose to set up household with tax benefits and insurance benefits for their general welfare–and still decry state sanctioned conjugal relations between non-married people. In someways it’s kind of like a don’t ask policy.

  2. Latter-day Guy says:

    So, would the way the proposed amendment is currently worded have the effect (as suggested by #6 – 7 above) of removing or limiting the rights established by the portion of the California family code you cited? Would those protections under the family code become void (unconstitutional?) by passing Prop 8?

  3. Kaimi, I think I read something somewhere (some legal document by the Church, if I am remembering correctly) that had basically said this already (separating out the rights from the institution), so I’m not sure it’s really something different. But I’ll see if I can find that document first before saying that too confidently. :)

  4. Cynthia L. says:

    I agree with m&m. When were doing Prop. 22 all those years ago, I’m pretty sure our talking points included saying we supported (or at least didn’t oppose) various legal rights short of marriage itself.

  5. Aaron Brown says:

    Kaimi, do you know when Sunstone is going to put up the audio of your symposium presentation at their site? I’ll be interested to hear it.

    AB

  6. MikeInWeHo says:

    re: 2

    No, if Prop 8 passes nothing changes for registered domestic partners in CA. They still have the exact same (state) rights and obligations as married couples. It’s marriage in all but name only, and that’s not going to change.

    The more draconian state constitutional amendments (passed elsewhere I think–??) not only ban gay marriage, but also the “legal incidents thereof.” In those places, gay families are provided no legal protection whatsoever.

    The anti-SSM marriage folks in CA know that’s not politically possible here; hence the more limited wording of Prop 8.

    You’re onto something, Kaimi. This is a huge shift. If the fiercest opponents of gay rights in California quietly concede EVERYTHING but the use of the word ‘marriage’ in the civil code, is there really any question which side has won the so-called culture war in this state?

    The anti-SSM marriage web sites routinely decry judicial activism and assert that large majorities are against it. What will they say if Prop 8 is resoundingly defeated in November?

  7. Douglas Hunter says:

    The thing to keep in mind is that the rights given to domestic partners in CA are only granted in CA. Domestic partnerships do not get the same protection under federal law that heterosexual marriages do, nor are they granted the same rights and responsibilities in other states. I may be wrong on this but I also believe that Lambda Legal has found other distinctions in CA law between heterosexual marriage and gay domestic partnerships / civil unions. I also think that we shouldn’t say that prop 8 is not a big deal. We should let the gay community tell us if its a big deal or not since they are the one’s who have to live with the consequences of it if it passes.

  8. My mother-in-law lives in California, and she’s actually just been called to the stake public relations committee, and their first order of business is to start canvassing for Prop. 8. My MIL is okay with the church talking points, but she worries about other churches in the coalition being less…can I say “liberal” without everyone laughing so hard they wet themselves?

  9. My favorite phrase is the line that says “Church members [should] decide their own appropriate level of involvement” in this issue. I guess you get say $0 when asked for your level of contribution.

    The nice thing about this article is that the Church uses mostly secular arguments to make its case against gay families, and these arguments may be evaluated on their merits.

  10. In California’s latest anti-gay marriage coalition, there’s plenty of tension between groups like those led by Randy Thomasson (who wants to eliminate ALL rights for same-sex couples) and the less-extreme Knight-backed group led by Andrew Pugno. It’ll be interesting to watch the finger-pointing after Nov. 4th’s defeat.

    By the way, there’s a pretty cool announcement up over at this Orange County blog:

    http://www.theliberaloc.com/2008/08/13/action-alert-tell-the-right-wing-consultants-no-to-prop-8/

    Reading this post, I regret missing Sunstone.

  11. Mark Brown says:

    By advancing its own arguments, is the church attempting to take a tentative step away from the protect marriage coalition, and the very poor arguments the coalition laid out on the website? I don’t know, although I do hope we find a way to create some distance between ourselves and the Westboro Baptist Church people. It still looks awkward though, like we are trying to put lipstick on a pig.

    I guess you get say $0 when asked for your level of contribution.

    A very good point, MoHoHawaii. An examination of the list of contributors reveals that, to this point, none of the apostles or members of the FP has contributed to the prop. 8 effort. These are inspired men, and I hope we will all follow the example of the Brethren on this issue.

  12. If I still lived in California, I would have a No on 8 yard sign, just as big as I could find, plastered right in the center of my yard. Anyone want to come ask me to donate? Good.

  13. MikeInWeHo says:

    I actually thought the statement on the LDS Newsroom site was extraordinarily well-written even if I disagreed with it. It may well be the ‘best’ statement on the topic to date from the Church.

    No doubt many have already been told where to donate to support Prop 8. Should you wish to oppose it, you can do so here.

  14. MikeInWeHo says:

    Oops, that link does not work. Try here.

  15. Also, check out http://www.mormonsformarriage.com, which has been set up as a way to educate active LDS folks about Prop 8 and marriage equality. More videos and posts coming soon.

  16. Aaron Brown says:

    I also thought the newsroom article was surprising good, even though I still have mixed feelings about this whole topic.

    AB

  17. One thing I found interesting in the declaration, was actually kind of a throwaway statement under “Challenges to Marriage and Family”:

    Since 1973, abortion has taken the lives of over 45 million innocents. (Alan Guttmacher Institute, “Facts on Induced Abortion in the United States,” In Brief, July 2008.)

    Interesting. So, does the LDS Church consider a fetus to legally be “a life,” as others in the Christian Right? If so, how does the LDS Church justify its stance that abortion may be OK in instances of rape? Do you get to kill someone just because you were raped? Is this really what the LDS Church believes? Or is this just a slip up on the part of those who drafted the Declaration?

  18. Holden Caulfield says:

    Regarding the upcoming signs in the yard…..

    I can’t wait for the Yes on 8 signs to be distributed in my ward. I’m going to cross out the Yes and change it to “No”.

    I feel that will make a special statement to my LDS son who lives with his gay partner in our home while they are going through school.

    I suppose I should contribute $5 to the cause…..at least pay for the sign.

  19. Kevin Barney says:

    I too thought it was well done, even though I continue to disagree with it. This reminded me of some of the literature from the old anti-ERA campaigns, which in my view was much more sophisticated than what the Church so far has produced on the gay marriage front. They’re getting better at articulating their message.

    To me the most persuasive argument would have been the whole parade of horribles that churches would be forced into if the law were to remain on the books, with the specter of such things as gay marriages having to be solemnized in LDS temples and that sort of thing. The only problem is, I don’t buy the parade of horribles. And I don’t buy the threat to the social development of children argument. Nor do I buy the “infringe the integrity of the family” argument.

    But even though I didn’t buy it, I thought it was a vast improvement over prior literature, and give the church kudos for the effort.

  20. merrybits says:

    I’m not sure what to read into the Church’s statement because here’s what’s happening in my ward to date:

    (note that I am firmly for EVERYONE being able to get married):

    Those who are visiting teachers are asked to contact those they visit to join a “neighborhood walk” in different sections of the ward boundaries in efforts to promote “protecting marriage.”

    Also, our current EQ/RS lessons are being modified to include much more PoF topics.

    Also, we will be hearing much more about this issue from the pulpit (this said from my bishop – from the pulpit).

    Also, we can sign up for that protect marriage organization (bishop said our church’s name would not be on it).

    My response to all this the other Sunday was simply to cry through sacrament, because I didn’t know what else to do. If it’s true that the higher-ups in the church haven’t donated anything, I think that’s very telling. Unless it was under-the-table-don’t-mention-my-name stuff.

  21. Martin Willey says:

    I gave the statement a quick read, it did not seem to address directly issues more directly related to family life like adoption, custody and visitation. The implication certainly is that the Church is not willing to go there. It seems to me that those are the really prickly sticks in the bundle of marriage rights. Differences between the Church and the gay community on those issues seem irreconcilable.

  22. I wasn’t surprised by the whole domestic partnership hinting in the document, in fact I expected it. The church obviously has felt it’s coming up against a hard tide to stem and now are seeing it more than ever as they’re putting up a huge fight. They’ve seen that they are going to need to give a little. I view it as a peace offering, or appeasement at worst. A little, “Fine. You can ride on the bus, just the back of it.” kind of thing.

  23. Martin Willey says:

    Seth R.: I think the phrase “45 million innocents” was carefully crafted to avoid the term “lives.” My observation is that the Church studiously avoids declarations of when a fetus becomes a “life,” or that abortion killing someone – – although it may be something “like unto” it. See D&C 59:8.

  24. Last Lemming says:

    I think the phrase “45 million innocents” was carefully crafted to avoid the term “lives.”

    I think the phrase “45 million innocents” was carelessly excerpted from the document to avoid acknowledging that the term “lives” is indeed associated with it, as in “the lives of 45 million innocents.”

    I doubt that this was intended as a commentary on when life begins, however.

  25. Martin Willey says:

    Last Lemming: Exactly my point. It was meant to AVOID commentary on when life begins. If not, then how do you answer Seth R.’s questions?

  26. #20 touches on my thoughts on this.

    I’m not sure how to interpret many postings on the lds newsroom site. I’ve noticed that the postings there don’t always jive with the common viewpoint of what “good” members believe (of course now I can’t think of the specific other times I’ve thought that).

    So if something comes out as a newsroom posting, am I okay believing it? Am I okay not believing it? Who writes the stuff, how much oversight to they receive, and by whom?

  27. MikeInWeHo says:

    Was anybody here in CA during both the Prop 22 campaign and the current one? I’d be curious as to any differences you’ve observed in terms of the Church’s involvement: tone, energy, level of activity, optimism, etc. Were they any members openly disagreeing (at least in cyberspace) as there are now?

    On my side of things, it feels quite different. Everybody who was pro- gay marriage felt kinda doomed back in 2000. This time the vibe is much different, and cautiously hopeful.

  28. I was in California during Prop 22. It seems to me that the pressure on members has come much more quickly. When the first announcements were made about Prop 22 we were told that nothing would happen at church. We were asked over the phone to come to meetings at individuals’ homes, and then when that support was very tepid, we started hearing more and more at church. One day, we were actually dismissed after Sacrament Meeting to go walk precincts. (And I did not do that.) This time there has been no pretense that the church was not involved. THere’s been a direct jump to using the church facilities for announcments, etc, and and more pressure to be involved, I think, much sooner. There was some resistance in cyberspace, on email lists, but since those were mostly closed membership (for good reason) the opposition didn’t get out into public much.

  29. Having just read the church’s commentary on the prop 8 business, my mind has been changed.

    I used to think that this was just a question of semantics, about what the union of two people is called. Though I wasn’t planning on actively campaigning against it, I wasn’t sure if I could support prop 8.

    But, now I will go out and do what I can to help it pass. I think this is one of those times where we see what the voice of the people will chose. As Mosiah said, (paraphrasing) “If the time comes when the voice of the people chooses wickedness over righteousness, then will that people be ripe for destruction.”

  30. I don’t think there’s any question, whatsoever, about whether the Church’s position regarding legal protections afforded gays and lesbians has changed over time.

    It absolutely has. I recall working in a small role as a young lawyer to overturn Colorado’s Amendment 2, a ballot proposition the Church supported in the early 1990s to prevent local governments in Colorado (principally the cities of Denver and Boulder) from enforcing housing and employment laws that prohibited discrimination on the basis of sexual orientation. This statement seems a far cry from what was advocated fifteen years ago, and I’m glad to see the change.

    Not enough in my view, but I’m glad to see it, nonetheless.

  31. MikeinWeHo, also, I am fairly sure that there was no First Presidency letter or visible support early in the Prop 22 campaign. If I remember right, we were all wondering how far up the directives were coming from. Here is a chronology which was compiled at the time:

    http://www.lds-mormon.com/doma.shtml

  32. merrybits says:

    I remember a letter being read in sacrament during Prop. 22. I was living in Northern California at the time in a very rural, not-well-educated-but-mighty-in-spirit ward. The bishop, a retired highway patrolman sort of mumbled through the letter. He mentioned just voting your conscience and that was that. I do remember seeing some signs in people’s yards, but as a ward effort, the support was minimal. Fast forward to today where I live in Southern California in a very wealthy and educated ward. The bishop (a gentle, soft-spoken kind-hearted engineer)seems to be reading letter after letter from the higher-ups. My opinion is the church is definitely more aggressive this time around, which makes me extremely sad and angry. Of course we have the folks (during testimony time) mentioning how our beloved constitution is under attack, sign of the times, blahblahblah. I’m wondering if the church didn’t forsee this being such a polarizing issue.

  33. Holden Caulfield says:

    The Mosiah quote was part of the stake presentation to our joint PH/RS meeting this Sunday as they had members sign up for the neighborhood walk.

    The presenter was ridiculously giddy as he quoted that scripture. He said “It’s kind of fun to think we are living in a time when these types of things might happen”….i.e. the destruction.

    His fun apparently isn’t my fun.

    This “destruction” jibber-jabber will pass just like the year 2000 the Savior is coming talk passed.

  34. Last Lemming says:

    It was meant to AVOID commentary on when life begins. If not, then how do you answer Seth R.’s questions?

    If it was meant to avoid commentary, it failed. In which case, it was a slip.

  35. I wonder whether we could also read this statement as a) an indication of the grounds on which the church might be willing to strike a compromise (e.g. “convince us it won’t harm the children and pass laws strengthening religious-exercise exceptions from antidiscrimination law, and we’ll drop our opposition to secular gay marriage”), and/or b) the foundation for continued legislative and political efforts in this arena should Prop 8 fail.

  36. MikeInWeHo says:

    It really bothers me that the situation has become even more polarized. Both sides are increasingly entrenched and using the rhetoric of violence/war/destruction. All this over who gets to use a particular word??! The real battles were over sodomy laws, inclusion in non-discrimination statutes, and domestic partnership rights. Here in California those issues are long-settled.

    As Kaimi points out at the beginning, that’s basically what is being voted on: who gets to use the word marriage in their civil arrangements. The California Family Code section 297.5 — read it carefully! — is not going to change regardless of Prop 8.

    Personally, I don’t care that much if y’all won’t let me use a particular word on some paperwork. I’d much rather see strong domestic partnership laws nationwide than gay marriage in a few places, no protections in others, and endless battles like this almost everywhere.

    The British recently reached a grand compromise and implemented a robust civil partnership law that is not called marriage. That pretty much ended the whole debate.

  37. I remember President Hinkley saying that we would need to have domestic partnerships. This seems to follow his statements.

  38. Mike (35)
    I think you bring up an important point. In all the emotion, we aren’t really getting to the issues. If rights are desired, then there are ways to do that without touching marriage. I think, though, that there are some who want more of a symbolic ‘victory’ by pushing the marriage issue.

    I suspect there would be a lot less opposition to ‘gay rights’ if people actually focused more on the rights than on changing something so fundamental as marriage.

  39. MikeInWeHo says:

    I agree with your first paragraph, m&m.

    But marriage and family have ALREADY fundamentally changed. When you’ve got thousands of gay couples raising kids quite comfortably and legally (in my city alone!), trying to pass Prop 8 is like trying to close the barn door after the horses are long gone.

  40. Mark Brown says:

    m&m,

    But if your point is correct, that pretty much does away with most of the arguments in the church’s statement yesterday, right? If we understand that document to be official and binding, the church has already conceded the following:

    1. Gay people have the right to form households, the just can’t be married.

    2. Gay people have the right to adopt children.

    So the arguments about what is best for children do not come into to play, since the church raises no objection to those two points. Our concern appears to center around the use of the word marriage, and around whether the church will be forced to perform same-sex marriages.

  41. Martin Willey says:

    I would not go so far as to say that the “church raises no objection” to idea of gays adopting children. The statement indicates that gay/lesbian couples may have children through heterosexual relationships, artificial insemination, surrogacy, etc. The church can really do nothing about that. But I do not see the church saying they are ok with gay/lesbian couples adopting children, or religious organizations being required to place adopted children with gay couples. Am I missing something?

  42. There is no chance that the church will be forced to perform same sex marriages. Kaimi can speak to that better than I can, but the Supreme Court ruling specifically states that the ruling does not force any religious groups to change their practices. There are many heterosexual marriages that the church will not perform– we don’t let Catholic brides and grooms get married in the temple, do we? We’ll still be permitted to have our own religious rules.

    I finally read part of the California Supreme Court ruling last night and was surprised at how readable and informative it is. I found it in the sidelinks at http://www.mormonsformarriage.com.

    There’s also an explanation of why the Supreme Court felt that civil unions weren’t enough:

    http://mormonsformarriage.com/?p=27

  43. To me, when we talk about rights, I think this is the key point:

    The focus of the Church’s involvement is specifically same-sex marriage and its consequences. The Church does not object to rights (already established in California) regarding hospitalization and medical care, fair housing and employment rights, or probate rights, so long as these do not infringe on the integrity of the family or the constitutional rights of churches and their adherents to administer and practice their religion free from government interference.

    My reading of this is that the Church wouldn’t be supportive of all rights for gays were each right individually on the table, but it leaves the definition open enough for us each to decide where that line is drawn. For example, what rights ‘infringe on the integrity of the family’ or on religious rights? I suppose that is where there would be disagreement, and the kind of questions we each have to grapple with in deciding where we stand on this issue.

    While I certainly can’t speak for the church, I doubt it would be supportive of adoption rights for gays, for example, *if* that was on the table, because of the concern for children and the belief that the traditional family is best for children (this is true in the context of heterosexual marriage as well — we often hear that a married mother and a father are best for children, that divorce can hurt them, etc.). But that right (adoption) isn’t on the table, so the way I see it, the focus is on what IS on the table – the definition and institution of marriage and what effects changing that institution could have.

    To me it’s like when people say, “Why doesn’t the Church fight legally against divorce?” as though somehow the Church taking a stance on this is somehow out of place because it’s not taking a stand on other doctrinal issues. The point to me is that it is *responding* to what is actually an issue at hand legally, not *creating* an effort to support its doctrine legally. I think it’s important to note that difference.

  44. Martin Willey says:

    I am kind of agnostic on the SSM issue (am I alone?), but the problem, I think, is that you either treat people the same or you do not. Saying, “You can have all the rights of married people, except adopting children or maintaining visitation rights if your are divorced. Oh, and you can’t say you are ‘married,‘” may not satisfy all gays and lesbians. And I am not sure I would blame the dissatisfied ones.

  45. MikeInWeHo says:

    re: 43
    Just to be clear: In California everyone was already treated the same under the Family Code. It’s basically a separate-but-equal situation. Gays with domestic partnerships adopt children all the time, and deal with the same custody/visitation issues as everyone else if a relationship fails. Domestic partnerships can only be dissolved by a judge, people have to pay alimony and child support, etc. That all exists and will continue to exist whether or not there is SSM in this state.

    In reality, gay marriage has existed in all-but-name for years in California and several other liberal states. I get the feeling lots of people don’t quite understand the status quo, which is understandable because it varies so much from state-to-state.

  46. Martin Willey says:

    MikeinWeHo: Thanks for the clarification. I do not want to muddy the waters on what is going on in CA. I was responding more broadly to comment 42.

  47. I doubt most proponents of prop 8 are worried that the church will be forced to marry/or seal same-sex couples. But to jump to the conclusion that no religious liberties could be curtailed flies in the face of current court rulings. See the sidebar at the church link to the NPR article. Also see this.

    I do not see why the KKK is protected under free speech laws, and all kinds of other offensive teachings and indoctrination, but when it comes to same-sex marriage that people are being forced to act contrary to their belief systems, and free speech curtailed. The growing trend is for people to be allowed to believe what they want, as long as they don’t live it. That’s not freedom.

    There appears to be a misconception expressed on this thread and others too that when proponents and the church use “destruction”, they must mean hell, fire, earthquakes, floods and tsunamis. The destruction intimated is meant (at least in part–and IMO mostly) to mean the general breakdown of society; ie. more drug abuse, sexual promiscuity, violence, disease, and less general benevolence for the welfare of a healthy and sustainable society.

  48. Douglas Hunter says:

    #44 “In California everyone was already treated the same under the Family Code. It’s basically a separate-but-equal situation.”

    Two thoughts: Fist, the language does matter. Marriage is the norm, and for some of the gay families that I know the difference for them between being saying “we are domestic partners” and saying “we are married” is big. It’s also different for the children of these couples at school and other social settings. Its important to listen to the different voices in the gay community, to listen to what they are asking for and to listen to their experiences and opinions concerning the issue. The civil code does not tell the full story.

    Second, separate-but-equal isn’t.

  49. MikeInWeHo says:

    re: 46

    How exactly is anyone “being forced to act contrary to their belief systems, and free speech curtailed,” “when it comes to same-sex marriage” ?? Please support that assertion, because I believe you are completely incorrect.

  50. mmiles:

    Many examples provided on the links you cited smack of individuals wanting to have their cake and eat it too.* A doctor or pharmacist licensed by the state is agreeing to undertake a certain responsibilities, and it’s no secret that sometimes that means having to dispense the morning after pill, or to assist not only straight couples in having babies but gay couples as well. Religious liberty has never meant that you should be able to enjoy the benefits of a public position of trust while not having to do the duties of that position if you find them distasteful because of religion. Religious liberty also does not mean that your reason for being exempt from a law is better than someone else’s reason for being exempt because your reason has to do with God.

    While your statement that allowing belief but not action is not freedom is an appealing argument, allowing every person who has a religious objection to ignore the law that everyone else has to follow is even worse. That system not only undermines the policy goals of the legislature by carving out limitless exemptions, but it also would require the court to decide which reasons are related to religion and which reasons are secular. In other words, the courts would have to decide what religion is, which would be more dangerous than any decision, liberal or conservative.

    While our society should never discriminate against a person’s reason because it is spiritual in nature, it should not give it any particular deference, either.

    * Note that I am not talking about all of the examples: The Lutheran School has a right to keep girls out of its school; the t-shirt case has to do with classroom speech and not religious freedom. Yeshiva University did not raise the question of religious freedom in its case.

  51. How exactly is anyone “being forced to act contrary to their belief systems, and free speech curtailed,” “when it comes to same-sex marriage” ??

    I can imagine a possible scenario. A teacher is told that she must teach something or read something that celebrates and homosexual marriage/relationships/family/lifestyle, but is not able to talk about her belief system, or at least have her beliefs guide how she handles the lecture. If she chooses not to include this in her curriculum, her job could be at stake.

    And/or parents (taxpayers) are not able to express their concerns or have a say in what is taught, and may not even be able to choose what kinds of lectures their (young!) children participate in.

    These are similar to situations in Mass. I read about in a few years ago. If homosexuality becomes more normalized, the more I think we could see of this kind of thing.

    There’s also the story of the guy in Canada who was banned from talking publicly about homosexuality for the rest of his life, but I think I heard somewhere that Canada’s free speech laws are different from ours. Still….

  52. Nate W.
    I agree with you. Not all the examples cited are good ones.

  53. Mmiles,

    The short answer is that the cases cited really have nothing to do with same-sex marriage. Every one of the cases cited in the article was about antidiscrimination laws, not marriage. I believe every one of them predates the In Re Marriage Cases decision.

    One can argue in different directions as to antidiscrimination laws. But they are not the same thing as same-sex marriage. Prop 8 affects only marriage, and will have no impact at all on the antidiscrimination laws at issue.

    (The same goes for many other instances that are regularly cited. For instance, people in my ward have circulated discussion of a New Jersey tax case where the Methodist church lost about $200 in tax exemptions for refusing to allow lesbians to use a pavilion. But New Jersey isn’t a same-sex marriage state.

    SSM is really a red herring. The bigger issue is antidiscrimination laws. I agree, there are very interesting ways that these affect religious organizations. But that is not the same as same-sex marriage. The two are independent. Whether or not Prop 8 passes, antidiscrimination laws will remain on the books.

    So Stern’s article, while raising interesting issues, is really just a smoke screen.

    Does that make sense?

  54. As several ward members e-mailed that the decision would result in forced imposition of gay marriage in church, I wrote this back:

    As a matter of law, I don’t believe it’s correct that the _In Re Marriage Cases_ decision will result in forcing the church to perform same-sex marriages in temples or the like. In fact, the court opinion itself says exactly the opposite — the court states directly that Section 4 of the California Constitution would prevent that from happening. The _In Re Marriage Cases_ majority opinion states:

    “No religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)”

    (See the opinion text, available at http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF ). This is a central part of the case’s holding.

    Given that clear court language, I believe that it’s incorrect as a matter of law to suggest that application of the _In Re Marriage Cases_ opinion would result in forced same-sex marriages at our church or any other church with a doctrinal objection to homosexual behavior. And it’s good news, I’d say, that the _In re Marriage Cases_ opinion definitely will _not_ — by its own terms — result in forced change of practices by religious organizations or individual religious officiants who wish not to marry gay couples.

  55. Nate W,

    Regarding doctors and pharmacists licensed by the state, perhaps they do have to distribute birth control and perform abortions-on-demand, but should they have to under the constitution? Being licensed by the state doesn’t make someone a state employee, rather, it gives the state some control over the quality of healthcare employees (for example). I think the cases in which people are forced to act contrary to their religious beliefs are applicable to SSM. Even if the LDS Church is not forced to perform homosexual marriages, its tax status may be challenged, social organizations it supports may be forced to change their practices, etc.

    Kaimi,

    The problem with our system of justice is, Supreme Courts say one thing today and change it in 10 years. No one can disagree (except by amendment) because they are the Supreme Court. So relying on the language of the CA Supreme Court decision to support the argument that the LDS Church cannot be forced to change its practices is only valid until the Court changes its mind. With an amendment, enough Californian voters have to change their minds to form a majority.

  56. John Mansfield says:

    A disturbing aspect of laws with religious exemptions is the notion that religious beliefs are the only legitimate kinds of personal preference. Something matters so much that we pass a law or ruling to make that the way things are, yet there’re exemptions for members of religious bodies that don’t think that’s the way things ought to be. Kind of lousy for the person who also disagrees with the law, but for non-religious reasons.

  57. Adam E. (54):

    Under the Constitution, yes they should. The Free Exercise Clause does not require religious accommodations or exemptions to generally applicable laws; it only requires that if non-religious accommodations are granted, that religious ones are as well. See Employment Div. v. Smith (U.S. 1990); Lukumi Babalu Aye v. Hialeah (U.S. 1993).

    I know that a lot of folks on this blog find Smith and its progeny repellent and see it as bad law, but given the wide variety of religion in the United States, including those with drug-laced sacraments, polygamous beliefs, and rituals that we may view as animal cruelty (to mention a few), no statutory scheme is safe. Also, religious accommodation requires a court to find whether a belief is religious in nature and whether it is sincerely held. This seems dangerous–I would rather the government not decide (to use an example) whether Buddhism or Unitarian Universalism is a religion or just a philosophy because it does not require belief in a supreme being. I say this with great trepidation, but Justice Scalia was right on this one.

    Also (and I see this misconception all the time), tax-exempt status for churches is not guaranteed under the First Amendment. Bob Jones Univ. v. United States (U.S. 1983). The IRS can revoke a church’s tax-exempt status if its practices are against the public policy of the United States. This is unlikely, given that the IRS has never taken on the LDS Church or the Catholic Church for their violation of Title VII of the Civil Rights act by refusing to ordain women (although there may be an exception in the statute, I can’t remember clearly). Long story short, the internal revenue code is a creature of Congress, and by the time Congress gets around to taking away the Catholic Church’s tax exempt status for refusing to perform gay marriages, we’ll have to protest by putting stickers on our hover cars and rocket packs.

  58. Martin Willey says:

    Kaimi: I agree that the cases cited do not directly implicate SSM. But, do you really believe that, if SSM becomes the norm, the courts will not see that as evidence of how anti-discrimination laws should be interpreted and enforced? I don’t. I can easily see the courts relying upon societal shifts in recognizing SSM as an indication of how a particular law was intended to be enforced (particularly in the area of family law). I agree that discrimination laws and SSM are two separate issues, but I do not think they are as independent as you suggest.

  59. I also think that SSM and vigorous enforcement of anti-discrimination laws come together. The real battles will be fought over the anti-discrimination laws. The outcome for the church legally in these battles to be frank depends on the personal opinins/attitudes of those that sit in the state and federal courts. For a good example of this look at the interviews of the Mass and CA chief justices after the rulings in favor of SSM.

  60. A teacher is told that she must teach something or read something that celebrates and homosexual marriage/relationships/family/lifestyle, but is not able to talk about her belief system, or at least have her beliefs guide how she handles the lecture. If she chooses not to include this in her curriculum, her job could be at stake.

    And/or parents (taxpayers) are not able to express their concerns or have a say in what is taught, and may not even be able to choose what kinds of lectures their (young!) children participate in.

    This is an exceptionally silly example.

    In the public school curriculum, teachers and/or parents (taxpayers) don’t necessarily get to express their personal view that Mormons are going to hell because they aren’t saved, or that the Holocaust was a fabrication, or that African-Americans shouldn’t sit at the same lunch counter with whites, either.

    “I don’t get to express my personal bigotry in the classroom” is not a legally cognizable curtailment of free speech or action.

  61. “I don’t get to express my personal bigotry in the classroom” is not a legally cognizable curtailment of free speech or action.

    I am not sure this is true.

  62. MikeInWeHo says:

    re: 60 Of course it’s true. There are plenty of things teachers are not allowed to say in the classroom. Would you want an Evangelical teacher permitted to express his views about Mormonism-as-cult in an American History class, for example?

  63. Nate W writes,

    “So (and I see this misconception all the time), tax-exempt status for churches is not guaranteed under the First Amendment. Bob Jones Univ. v. United States (U.S. 1983). The IRS can revoke a church’s tax-exempt status if its practices are against the public policy of the United States. This is unlikely, given that the IRS has never taken on the LDS Church or the Catholic Church for their violation of Title VII of the Civil Rights act by refusing to ordain women.”

    Exactly right.

    It is extremely unlikely that the church — which, let’s remember, already does not ordain women — will suddenly lose its tax exemption for not marrying gays.

    Ironically, as the church becomes more and more politically active, there _is_ a not insignificant chance that it will lose its tax exemption for being too involved in politics. Not for not marrying gays, but for crossing the line between a charity and a lobbying organization. (Though that chance is also very small.)

    Bbell writes,

    “I also think that SSM and vigorous enforcement of anti-discrimination laws come together. The real battles will be fought over the anti-discrimination laws. The outcome for the church legally in these battles to be frank depends on the personal opinins/attitudes of those that sit in the state and federal courts. For a good example of this look at the interviews of the Mass and CA chief justices after the rulings in favor of SSM.”

    It’s possible, yes. But really, the two are not legally linked, except in very indirect ways. And many of the cases often cited are not gay marriage cases. The New Jersey case, for instance.

    Adam E. writes,

    “The problem with our system of justice is, Supreme Courts say one thing today and change it in 10 years. No one can disagree (except by amendment) because they are the Supreme Court. So relying on the language of the CA Supreme Court decision to support the argument that the LDS Church cannot be forced to change its practices is only valid until the Court changes its mind.”

    I addressed exactly this point in my Sunstone comments. If you read _In Re Marriage Cases_, you’ll see that the religious exemption is central to the holding. It would require completely rewriting the opinion, legally, to change that.

    No one has a crystal ball. But really, it seems quite unlikely that the religious exemptions will be changed.

    John Mansfield writes,

    “A disturbing aspect of laws with religious exemptions is the notion that religious beliefs are the only legitimate kinds of personal preference. Something matters so much that we pass a law or ruling to make that the way things are, yet there’re exemptions for members of religious bodies that don’t think that’s the way things ought to be. Kind of lousy for the person who also disagrees with the law, but for non-religious reasons.”

    It’s an interesting question. Legislatures and courts tend to protect religious objections — but you’re right, it raises interesting questions about why.

  64. 61: Would I want it, or would it be “legally cognizeable?”

  65. 63,

    When this happens, the students bring a lawsuit. And they win. See, e.g., Santa Fe v. Doe. (Brought by LDS and other students, told by evangelical teachers that they were going to hell.)

  66. I still am not sure that a prohibition on expressing any type of bigotry on the classroom would never be legally cognizeable, that’s all. Soemtimes I think expressions of bigotry (though wrong) is constitutionally protected. And, I have not read the case recently, but wasn’t Santa Fe v. Doe a school prayer case? I don’t think it was about expressing views in the classroom.

  67. Kaimi,
    Thanks for your response. I would have echoed #57 and #58, but you already addressed them both well.

    I remain unconcvinced that calling same-sex unions marriage will have no effect on discrimination lawsuits and dictating private practice (mainly institutions) in the public sphere.

    It is true, as you pointed out, that SSM and discrimination are two seperate issues. It does seem from these cases, that people are not even opposed to SSM per se, but are opposed to acts of homosexuality. They see it as morally wrong, and are not allowed to live their own lives to the dictates of their own moral beliefs (ie, photographer). If this is the case, then it is predictable that the state sanctioning SSM would only encourage such lawsuits.

    You have helped me see more clearly the distinction between the two issues. Thanks.

    I am inclined to think that even if SSM would bolster bad anti-discrimination lawsuits, that is not a good reason to keep people from enjoying the civil rights other members of society do. However it does make me cringe even more ferociously that religious freedom could be chipped away when someone is not allowed to preach according to their own faith.

    That still does not clear up the one reason I see for campaigning in behalf of and voting for the amendment (besides that the prophet asked us to). I do believe it is damaging to children in a number of ways, which I will not take the time to enumerate here.

    Marintha

  68. Marintha,

    You do realize that the link you provide is for a pro se case, brought by a nut, where the complaint has barely been filed and the judge is already talking about how problematic the alleged cause of action is? (It’s very unusual for a judge to be saying something like that, at this stage.)

    Anyone can bring a lawsuit. I’ve seen an actual case where people sued the government to stop covering up the alien (from space) invasions happening at the South Pole.

    That doesn’t mean that such cases have any shot at winning.

  69. Correct. I just see it as encouraging more frivilous lawsuits. Again, not a reason to vote against SSM.

  70. Err, sorry if my last comment was kind of sharp, Marintha.

    I just get frustrated sometimes because I hear lots and lots of horror stories, most of which end up being not based in fact.

    Our ward e-mail just discussed “a minister was jailed for preaching the truth about same-sex marriage.” Without further detail, it took some digging to see what that was about.

    There’s never been anyone, minister or otherwise, jailed in the U.S. for preaching about same-sex marriage or about homosexuality, that I could locate.

    There was one case where a Swedish minister was prosecuted under Sweden’s antidiscrimination laws — and was actually sentenced. He was never jailed, though. The appellate court reversed the sentence, and the Swedish supreme court confirmed.

    And that’s in godless _Europe_, for crying out loud. If you can say “SSM is bad!” in _Sweden_, you can say it anywhere. :P

    (Seriously, though. I’m no expert on Swedish law, but I understand that Sweden does not have the same free speech and religion protections as the U.S.)

    This isn’t to say that there aren’t legitimate legal reasons to oppose same-sex marriage. But they’re more complicated than the typical soundbites we tend to hear.

  71. There is the Swedish case that always comes up, and there is, I believe, a similar case in Canada. The preacher was fined, not jailed, in Canada. He was forced to pull his radio ads, and not allowed to say certain things from the pulpit. It was deemed that his preaching incited hate-crimes; very possible, I haven’t heard the ads–and possible he said things people didn’t like, that did not actually incite hate crimes.

  72. BTW, I realize that the examples I pulled out may not have been the best (or perhaps even silly), but even some responses show some of what we deal with. If I have a moral belief, a religious belief, that homosexual relationships are morally wrong, and I express that, then my view is labeled as bigotry, even here on a Mormon blog. Isn’t it possible that there could be opposition, labeling, and perhaps even social/political fallout or efforts to control or curtain the expression of such beliefs if homosexuality gets more legal support? If suddenly it’s legal, can anyone then discuss their views that homosexual behavior is immoral or sinful without potential ramifications? I’m asking honest questions because I think this isn’t so far out there to consider as a possibility. Even if you disagree with the Church’s belief system, I think it’s not too much of a stretch to think that there could be some restriction of rights in this way at some point, either of individuals or perhaps even of institutions.

  73. Kaimi, what’s to prevent a California court fifty or sixty years from dismissing the In re Marriage court’s statements regarding Section 4 as non-binding dicta? Or from overruling it entirely?

  74. Jim D. (72):

    I’m not Kaimi, but I’m on my lunch break so I thought I’d help him out. The answer lies not so much as between non-discrimination laws and religious freedom, but between non-discrimination and the freedom of expressive association. A private, not-for-profit association cannot be forced to include members that would interfere with the message that the association seeks to convey. Boy Scouts of America v. Dale (U.S. 2000); Hurley v. Irish American GLIB Group (U.S. 1995); Roberts v. United States Jaycees (U.S. 1984). Requiring a church to contradict its message by marrying gay couples would be a violation of the First Amendment of the Constitution.

  75. But of course, this wouldn’t stop the federal government from revoking the statutory privileges of the Church, such as tax-exempt status, for example. But see comment 56 for an argument as to why that’s unlikely to happen.

    Now back to writing the appeal brief…

  76. MikeInWeHo says:

    I always learn something new when the lawyers of the Bloggernacle speak. Way cool; thanks.

  77. Nate, thanks for the responses.

  78. Nate and Kaimi: The problem that the Church is addressing is, I believe, twofold: (1) CA has declared gay marriage to be a fundamental right; and (2) the Supremacy Clause of the United States Constitution. The former dictates that in CA any entity that denies gay unions will be viewed as a denial of a fundamental right and the Church will be turned into a second class citizen — it’s views on gay intercourse will be viewed as bigotry rather than enlightened moral guidance. I see gay sex as immoral; I doubt that Kaimi agrees with the present and past prophets about that crucial issue. The Church can be denied participation in the right to provide adoptions or even to obtain marriage counseling licenses, among other horribles, if it denies a fundamental rights (as the BSA has discovered in refusal of a number of governmental entities to provide funding on an equal basis because of its stance on insisting that its members affirm the Boy Scout Oath and gay leaders on camp outs with young boys). Government grants to students, tax exempt status and licensing are all at issue when gay marriage becomes a fundamental legal right created out of thin air by a few judges. It is not about coercing gays to give up gay relations — since they already had the right to do that and have all the protections that traditional marriage offers; it is about governmental coercion to marginalize those who believe that gay relations are sinful. Certainly the Church has a legitimate stake in that debate.

    It would be easy for the Supremes to decides that other states must give full faith and credit under the Supremacy Clause to CA marriages and thus CA dictates the policy for all states. Because the Federal Const. trumps any State constitution, even state constitutional amendments could not stop such a ruling — which seems to me to be very likely.

    Finally, the issue, as Kaimi and Mike recognize, is merely about the name “marriage.” Because gays already had all the rights and privileges associated with marriage, the issue is about governmental approval of gay sexual relations and coercion against those who believe gay sexual relations are sinful. I just don’t see it is a valid or even acceptable role for government to promote gay relationships and coerce societal approval. That is what is really happening and what is all about. I don’t want my tax money used that way.

    Finally, marriage has been historically a religious institution. Why not just allow the use of civil unions? After all, that is all that the State really has any authority or right to condone anyway. Leave marriage to the religious sphere of life as the privilege of churches. The answer is obvious based on what I’ve already said: it is all about coercing social acceptance of gay couples and marginalizing all those who believe that gay sexual relations are sinful and ought not be condoned by government. It is not the role of government to promote social acceptance of homosexual unions. That is what the issue comes down to as I see it.

  79. Huh?

    That’s an interesting theory there, Youbet. Let me get it straight. You think that the SCOTUS will enforce a Cal constitutional right, ignoring other state cocnstitutions, under the Full Faith and Credit Clause; and that the answer is therefore to pass a Cal limitation (Prop 8).

    That’s certainly an interesting theory. But really, if SCOTUS is so eager to promote gay marriage, why would they take such a roundabout route?

    Personally, I don’t buy into the conspiracy theory. But hey, if the Conspiracy To Impose The Gay Sex On Everyone is real, and if SCOTUS is really stealthily advancing this evil plot — then really, what’s to stop SCOTUS from just calling it a Federal right? End of story.

    So, IMO, your conspiracy theory has just a few too many hoops.

    But, one one level, you’re right. If government officials are actually secretly engaged in a dastardly conspiracy to trample on people’s rights, then the In Re Marriage Cases decision could be used by such conspirators, in a bad way. That, I can concede. I don’t think it really does the work you’re trying to make it do, though.

  80. Kaimi: Your response is a strawman — and rather bad faith at that from my perspective. Of course nothing I said remotely entails a conspiracy theory. So I charge that you haven’t engaged my arguments at all and you have unfairly merely called it a name to deal with it. Strawman and ad hominem in one small post. I expected more and better from you.

    Yes, the CA decision is the first ever to find that gay marriage is a fundamental constitutional right. That is a very strong and unprecedented finding. There is nothing in CA’s constitution to justify it. If the theory is that gays are like persons of color who are born with a particular genetic makeup with no choice about it, then they engage in bad science and bad reasoning. Perhaps some gays are in fact born that way — but the best scientific evidence demonstrates such a view to be an invalid generalization to all who engage in homosexual conduct. There is a continuum of orientation. The analogy to interracial marriage made by the CA Supreme Court makes sense only if this kind of unjustified generalization is engaged. Will the CA court therefore say that those who don’t have a gay-only orientation, who in fact choose their conduct totally or to some degree, don’t have the same protections because they are unlike colored persons i that respect and therefore that gay relationship is unlike interracial marriage?

    You also fail to engage the Supremacy Clause argument in a sound way. The Federal Supremacy Clause, as you well know, requires a state to give full faith and credit to the legal acts of another state. How can we avoid the argument that the Federal Constitution trumps all State constitutions under the 14th amendment? It is a straightforward and valid legal argument — and attempting to demean it by calling it a name of conspiracy theory is just non-sense.

    Second, I stated that it must be clear that what is at stake is not gay rights and privileges at all — since you have already adopted the obvious view that the only thing really at stake is the status of “marriage” give the rights gays already had under the civil unions statute. So if what is at issue is the government condoning a particular kind of relationship, it amounts to government coercion of social engineering to adopt a particular view about moral judgments. If you regard that as the role of government, fine, but let me out of the country you want to live in.

    I also note that you didn’t address a rather serious question that I posed: do you regard homosexual conduct as sinful? If you don’t, then I suppose there is no reason to avoid the social engineering adopted by the CA Supreme Court since such gay marriage is on par with heterosexual relations. But it rather begs the question against those churches that don’t want to lose their ability to treated unjustly for their moral stance on this issue.

    Let me point out another straw man that you have engaged in your Sunstone presentation: you argue that we shouldn’t take scriptures in Leviticus and in Paul seriously because we don’t stone folks for homosexuality or require women to veil their heads in church. Right you are. Except it misses the entire point and misdirects the discussion. Homosexual conduct is regarded as sinful in scripture. Leviticus enjoins stoning for adultery. We don’t stone adulterers. However, that doesn’t entail that scriptural teachings regarding the unacceptability of adultery are not justified or still valid; it only entails that the penalty is too severe. It is the same with homosexual conduct — it is regarded as sinful and unacceptable to God. Virtually every prophet of the modern era has taught the same thing. You are of course free to reject their teachings. However, let us be clear that you are rejecting the prophetic utterances on the issue without simply avoiding the real issue. Such a discussion is essential when those who accept the Church’s teaching regarding homosexual conduct are called bigots on this blog.

  81. Now that I have dealt with Kaimi’s strawman and ad hominem response, let me add that anyone who doesn’t believe that gay rights advocates aren’t forum shopping and seeking to use judicial decisions in more left-leaning and liberal states to open up and force other states to adopt gay marriage is uninformed. Gay rights advocates expressly avoid bringing legal actions in southern states and places like Utah because they know that the likelihood of a favorable outcome is less than in states like Mass. and CA. They aren’t reticent to discuss the fact that their goal is ultimately to judicially coerce an acceptance of gay marriage and therefore of gay sexual conduct as morally the norm.

  82. they are unlike colored persons i that respect

    youbet: The term “colored” hasn’t been considered polite for a few decades now at least. Please make a note of it.

  83. Cynthia: My many friends of color will be interested to hear your pontification on that.

  84. MikeInWeHo says:

    Where is Steve Evans when we need him?

  85. YOUbet:

    You are incorrect about full faith and credit. First, it has its own clause in the Constitution–the Supremacy Clause just says that federal law trumps state law when the two are in conflict. The Full Faith and Credit requires states to recognize the judgments of other states (no matter what) and to recognize the public records and declarations of other states so long as it doesn’t contradict the public policy of the recognizing state. That means a state is not required to recognize a same-sex marriage of another state, but it is required to recognize a same-sex adoption or a same-sex divorce from another state.

    As for your response to Kaimi, don’t be so quick to impute bad faith–I read the first paragraph of your first post four or five times and couldn’t understand it for the life of me. If he didn’t address what you meant, then try explaining it again. I find diagrams and pictures are very helpful sometimes. Regardless, assuming people are speaking in good faith unless you have clear evidence to the contrary is the foundation for civil conversation, which I’m certain is what we all want.

  86. Nate W. — I am interested to know just how you think you know that states are not required to recognize same sex marriages of another state when it is established law that all states are required to recognize marriages of other states. You are correct that there is a public policy exception — except where fundamental rights are involved. However, states have been required to recognize marriages by other states even when their own laws have a different policy on matters such as minimum age, consanguinity and so forth. So I just ask — what is the basis for your assertion that SSM is not going to be treated like other types of marriages under the Full Faith and Credit Clause? I am just betting that you don’t have a precedent that you can cite. I can provide a large number of precedents on treatment of marriages by other states generally that strongly argue that SSM must be given full faith and credit. Given the CA ruling, extending the same FFCC analysis to SSM is a very safe prediction of where courts will take such a challenge.

    That is why the CA recognition of SSM as a fundamental right is so far reaching. Generally marriages of any type have not been seen as a fundamental right but as a protection extended by the state for certain relationships.

    I just don’t see what is ambiguous about my 1st paragraph — but for those who do better with pictures, how about this: In CA marriage is now a fundamental right and denial of SSM is denial of a fundamental right. Organizations that deny fundamental rights can be denied tax exempt status, licensing rights for adoption, marriage and other counseling. The refusal of Mass. to grant a license to Catholic Charities in Mass. unless it agreed to place children with same sex couples is a good example even without the added weight of a fundamental right. So the Church has a lot at stake.

    Further, the issue is not denial of rights and privileges to gays. Gays already had all of the rights and privileges of marriage under CA’s civil unions statute before the In Re Marriages case. So what is at issue? Only the right to call gay unions a “marriage” and thus have the State condone and promote such relationships. I just don’t see that as a legitimate function of government.

  87. YOUbet:

    I’ll just try to answer all of your concerns listed in no. 86.

    So I just ask — what is the basis for your assertion that SSM is not going to be treated like other types of marriages under the Full Faith and Credit Clause?

    While states usually automatically recognize marriages formed in other states even if that marriage wouldn’t be valid in the forum state, states also have a long and rich precedent of not recognizing marriages if those marriages would contradict public policy. See, e.g., Metropolitan Life Ins. v. Chase, 294 F.2d 500 (3d Cir. 1961) (common-law marriage); Goldman v. Dithrich, 179 So, 715 (Fla. 1938) (Consanguinity); Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002) (Same-Sex civil union); In re Estate of Gardner, 42 P.3d 120 (Kan. 2003)(Transsexual marriage). The Supreme Court has said time and again that full faith and credit does not apply to laws that are against the public policy of the forum state. See Sunoil Co. v. Wortman, 486 U.S. 717 (1986); Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). In case there is any question about whether states have to recognize out-of-state same-sex marriages, the Congress has also passed the Defense of Marriage Act, which clarifies the long-established doctrine. I’d love to see all of these precedents that you talk about–I bet not one of them has been issued by a state that has passed a law or constitutional amendment that says that it is the strong public policy of this state that marriage shall be between a man and a woman.

    Your fundamental rights analysis is flawed–no other state outside of California is bound to accept California’s determination that same-sex marriage is a fundamental right protected in the California Constitution–just like no other state was bound to California’s decision that interracial marriage was a fundamental right protected in the California Constitution when it decided Perez v. Sharp, 198 P.2d 17, back in 1948. Not until the Supreme Court found that interracial marriage was a fundamental right protected in the federal Constitution in Loving v. Virginia 23 years later did every state have to recognize interracial marriages. That is the way that constitutional law works–only the Supreme Court can issue constitutional opinions that are binding on every state through the 14th amendment.

    That is why the CA recognition of SSM as a fundamental right is so far reaching. Generally marriages of any type have not been seen as a fundamental right but as a protection extended by the state for certain relationships.

    Also incorrect–see Loving v. Virginia–Marriage is a fundamental right–the only thing people are arguing is the scope of that right.

    Organizations that deny fundamental rights can be denied tax exempt status, licensing rights for adoption, marriage and other counseling.

    No. First, Catholic Charities got out of the adoption business in Mass. because of a statute that required adoption agencies to not discriminate against same-sex couples. They weren’t forced to shut down–they shut down before the law came into effect. This had nothing to do with fundamental rights, but the public policy of the state as determined by the legislature. Second, private entities cannot violate fundamental rights–only governments can. Private entities may be denied privileges based on whether the grant of the privilege would be strongly inconsistent with the public policy of the state. And remember, the Church is in the same boat with the Catholic Church–that’s a lot of muscle for a legislature to take on.

    So what is at issue? Only the right to call gay unions a “marriage” and thus have the State condone and promote such relationships. I just don’t see that as a legitimate function of government.

    That’s funny, because my analysis came out exactly the opposite. Here’s what I said on another thread on this topic:

    1) Prop. 22 was interpreted as excluding same-sex couples from the institution called marriage, but it did not exclude the legislature from setting up a parallel institution whereby same-sex couples could receive all the same rights and benefits as marriage.

    2) When two parallel institutions are set up as functionally equal to each other, it is suspect (not necessarily in the legal sense) and merits further examination.

    3) The point of this statutory scheme was to allow same-sex couples the same substantive rights while signaling that their unions were not equal in dignity to traditional marriage.

    4) That is an illegitimate legislative purpose that violates the equal protection clause.

    Which of these statements do you disagree with?

    All the best…

  88. Nate: It appears that I wasn’t clear after all. First, I was of course addressing the danger that comes from recognizing SSM as a fundamental legal right. I agree that States are not presently bound to recognizes SSM, but that they will be if SSM is recognized as a fundamental legal right on a federal level. Your analysis merely supports what I have been arguing. Further, those states where SSM is prohibited merely by statute or where it has no statutory proscription may be deemed to not have expressed a fundamental state policy on the issue and thus may be required to recognize CA SSM under the FFCC. Do you disagree with that?

    I also agree that marriage is a fundamental right. However, the scope of marriage as a right has been left to states to define. CA had defined it by referendum to not include SSM. The CA Supreme Court however found that its own statement of policy and laws violated its constitution with nothing more than interracial marriage as a precedent. It created that right out of thin air against its own statutory laws.

    SSM is not a fundamental constitutional right. In fact, New York held in Hernandez v. Robles that marriage as a fundamental right did not extend to SSM. Virtually every other court that has addressed the issue has reached the same conclusion except CA. The Majority Opinion of the New York Court of Appeals in Hernandez v. Robles which rejected any reliance upon the Loving case as controlling upon the issue of same-sex marriage, holding that:

    “[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

    So your analysis is mistaken. Your assessment of Catholic Charities is also mistaken. Of course Catholic Charities chose to shut down because Mass. law forced it to either perform same sex adoptions or be denied a license by the State of Mass. Given the alternatives, it chose to shut down rather than do same sex adoptions. You may call that a choice, but it was a choice coerced by the law. Further, I never said that Catholic Charities breached fundamental rights (I am well aware that private agencies cannot violate fundamental rights). The same sex adoptions were part of the civil unions statutes. And yes the LDS Church is in the same boat — that is a lot of muscle to take on. But in the Mass. the legislature did so and effectively obliterated Catholic Charities as an adoptions agencies. The LDS Church now faces the same kind of pressures that will undoubtedly arise in CA. That is a significant stake and more than justifies the Church’s involvement in the issue by my lights.

    Of course with respect to your argument, I reject (2) since as you admit having an institution that is functionally equivalent doesn’t make it legally equivalent. Marriage is the best example. The State could recognize marriage as a unique religious institution and recognize that the State cannot get involved in it for that reason. What the State does is merely a civil union (that is all it could ever do). However, it can permit private organizations the license to perform such marriages. The State can extend the designation of civil union to the ceremonies it performs while permitting a functionally equivalent right to private entities to perform marriages. So (2) is false and it follows that (4) is also false.

    Thus, both (1) and (4) ought to be rejected. The State does not have to recognize SSM merely because it has set up an equal system for same sex couples to be joined by civil unions. It is not a denial of equal protection for the State to define marriage not to include SSM even if it grants rights to civil unions. Of course, if your argument is correct, it is a very good reason to refuse to adopt civil unions for same sex couples because it entails that marriage must be extended to them as well.

    With regard . . .

  89. Steve Evans says:

    Wow, YOUbet, that’s some interesting analysis there. You almost sound like a lawyer!

  90. p.s. YOUbet, that’s tongue-in-cheek, in case the interweb effaced my searing wit.

  91. Conflicted w/ Convictions says:

    I feel the Church has every right and responsibility to lobby on issues it feels it must. That said, I also feel deep opposition to much of the reasoning put forth by the religious right in support of constitutional bans. I’m not seeing the Christian morality or effective governance to it.

    Can someone (practicing attorney or not) please answer me this nagging question? What course other than the constitutional amendment route does the religious right have to lobby their position on this issue?

    I ask because I really don’t want these guys to feel cornered. The Christian right is increasingly an Armageddon people, looking too fondly back on stories of Shibboleth separations of the righteous from the wicked and too anxiously forward to massive destructions and warfare proceeding utopian millennial society.

    Who knows what they’ll do if they feel cornered and exhausted with legal course.

  92. MikeInWeHo says:

    “Who knows what they’ll do if they feel cornered and exhausted with legal course.”

    Move to Utah and vote for McCain?

  93. Like Blacks and the Priesthood, so it will be for gays and lesbians. It may take a revelation of course.

  94. Conflicted w/ Convictions (91):

    It depends what the core of the Church’s opposition is. If we assume that the Church does not want gay unions to be called marriage, then they have one option that is not a constitutional amendment: lobby the legislature to stop recognizing marriage entirely, but only recognize civil unions. Of course, this is probably suboptimal from the church’s point of view. If the Church is only worried about the possibility of losing privileges such as tax-exempt status and its adoption license, the easiest thing to do is to lobby the legislature to pass a law exempting religious groups from non-discrimination laws (if they aren’t already–that’s fairly standard in non-discrimination laws).

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