A Legal Analysis of the “Marriage Protection Amendment”

June 4, 2006 | 116 comments
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Here is my personal legal analysis of the “Marriage Protection Amendment” that is pending before the U.S. Senate. Below is the text of the proposed amendment:

Section 1. This article may be cited as the ‘Marriage Protection Amendment’.

Section 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man a woman.

Ironically, this amendment would dramatically expand the power of the federal courts and diminish the autonomy of state governments.

First, it provides not only a federal definition of marriage but a constitutional definition. It thereby explicitly commits the definition of marriage to the sole interpretation of the federal courts. By constitutionalizing the definition of marriage, it potentially creates a constitutional hook with which the federal courts could, if they were so inclined, rewrite marriage law as a matter of constitutional adjudication.

Second, the import of the amendment is unclear. By mandating a constitutional definition of marriage, it may potentially forbid states from passing civil union statutes. The amendment itself does not clearly address this issue, which means that it is left to the federal courts to resolve.

Third, it takes the unprecedented step of instructing state courts on how they should interpret their state constitutions. This not only interferes with the traditional autonomy of states to construe their own constitutions as they see fit, but it also dramatically expands the reach of the federal courts (and ultimately the Supreme Court) by making the federal courts not only the final arbiter of federal constitutional law, but also at least some issues of state constitutional law. This is at odds with our entire constitutional text and history. Furthermore, it would not keep state courts from saying the ambiguous state statutes require same-sex marriage, and hence wouldn’t even effectively remove state courts from same-sex marriage debates.

Fourth, the amendment makes no effort to address the question of full faith and credit. For example, there is nothing in this amendment that would keep the U.S. Supreme Court from ruling that all states are required by the Full Faith and Credit Clause of the constitution to grant full recognition to the same-sex marriages of Massachusetts. Furthermore, to the extent that Congress’s ability to legislate in this area with statutes like Defense of Marriage Act is in doubt, this amendment does nothing to insure that Congress if free to do so.

116 Responses to A Legal Analysis of the “Marriage Protection Amendment”

  1. Julie M. Smith on June 4, 2006 at 5:55 pm

    This was recently quoted on another thread:

    From the March 1980 Ensign:

    Recognized constitutional authorities state that the Equal Rights Amendment would represent a serious eroding of the powers of states and would result in a massive transfer of legislative power dealing with domestic relations from the states to the federal level. This transfer would greatly disrupt the division of powers central to our constitutional system. Domestic relations laws are now passed, interpreted, and enforced primarily at local and state levels. This permits local flexibility for differing cultures, ideals, and customs.

    I’m wondering how you read this in relation to your analysis above; my suspicion is that the Church is just more concerned about specific moral issues than the power distribution between the state and fed. govts. (Last lemming, who cited the quotation, had quite a different interpretation . . .)

    On another issue: I’m revealing my ignorance here: but can you unpack “it takes the unprecedented step of instructing state courts on how they should interpret their state constitutions” for me? I’m not quite sure what this means if you are saying that it is unique in constitutional history: wouldn’t other, previous amendments have done this?

    And, the big picture: over at BCC, you argued cogently concerning the need to follow the prophet on this matter. But the apparent conclusion of this post is that the amendment is not such a hot idea. Care to explain?

  2. Kevin Barney on June 4, 2006 at 6:40 pm

    Thanks for this, Nate. I had a couple of questions.

    First, could you explain this sentence: “Furthermore, it would not keep state courts from saying the ambiguous state statutes require same-sex marriage, and hence wouldn’t even effectively remove state courts from same-sex marriage debates.” I didn’t follow what you meant here. Could you give an example of how a state court could require SSM post-amendment?

    Second, when you talk about the full faith and credit of Massachusetts SSMs, how are there SSMs at all (Massachusetts or not) after the amendment? Would the existing ones be grandfathered from the effects of the amendment?

    And I share Julie’s question: in light of this negative critique, do you now support the amendment or not, and do you plan to communicate your views to your senators?

  3. Sideshow on June 4, 2006 at 7:06 pm

    Julie:

    I think the problem is when the amendment says that no constitution in the US can be interpreted as requiring SSM. If I am correct, other amendments make a statement, and to the extent that state constitutions conflict with it the conflicting portions are subsequently unconstitutional. This amendment, however, adds instructions on how all constitutions should be interpreted in addition to declaring that marriage may only be defined between a man and a woman.

  4. Kaimi Wenger on June 4, 2006 at 7:12 pm

    Nate,

    I’m with Kevin, that if this amendment passes, you can’t get to SSM via statute. You’re right that sentence 2 of section 2, standing alone, leaves that potential loophole. (I think that’s your argument). However, sentence 1 of that section would override any state statute.

    You’re right — I think — on the state constitution portion. (Though, weren’t there some state constitution clashes related to the implementation of the reconsruction amendments?)

    It does seem possible that a state court could apply a state constitution’s Equal Protection clause, add in the limitations in this amendment, and hold that that state must remove itself from the marriage business altogether. That decision would probably be unreviewable by the U.S. Supreme Court. But that’s a longshot scenario.

    Also, by its language, this amendment could wreak havoc on legal, heterosexual marriages in states with relatively low ages of consent, couldn’t it? Say you’ve legally married your 14-year-old girlfriend in some state with a low age of consent. Does this amendment unmarry you? Is a 14-year-old a “woman”? There is a huge potential for disaster in that language.

    Finally, it’s unclear how this affects people who legally married under the old standard, isn’t it?

  5. Julie M. Smith on June 4, 2006 at 7:36 pm

    Ah, Sideshow, thanks, that makes sense.

  6. Mark Butler on June 4, 2006 at 7:39 pm

    How can this be said to have a greater effect on the interpretation or power of the state consititutions than the Bill of Rights under the incorporation doctrine, “due process”, or the equal protection clause. Not that I think that Supreme Court jurisprudence in these areas is universally a good thing – quite the contrary, but it seems like water under the bridge – a rather weak objection for an amendment that is much clearer in intent and literal meaning than existing amendments, *especially* the Bill of Rights.

    Now the Supreme Court certainly has a bad habit of making up
    constituitional law out of next to nothing, and they certainly have plenty of precedent to work with if they are so inclined. So how is adding a balancing constituitional principle going to make things *worse*?

    As to civil unions, that is a stretch – one would need a right wing court inclined to abuse the literal meaning of the amendment, like the early due process clause abuses. It is an article of faith among contemporary conservative jurists that was both illegitimate and a disaster. Are there any right wing radical distorters of the constitution on the federal bench, the constitution as *written* as opposed to as *imagined*?

    The key word here is *require* – it doesn’t *prohibit* the legislative granting of the incidents of marriage to civil unions, it simply says that the word *marriage* in existing statutes and constitutions is what it as always meant, and so that judges cannot pervert the standard meaning or the original intent of such statutes by redefinition. Instead the legislators have to act to grant comparable rights explicitly.

    Maybe we should have a constitutional amendment on the illegitimacy of semantic games in the federal courts. Games like this amazing perversion:

    These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

  7. Stephen M (Ethesis) on June 4, 2006 at 9:16 pm
  8. Kaimi Wenger on June 4, 2006 at 9:25 pm

    Mark,

    First, as to whether there are right wing judges who go beyond constitutional text, it’s pretty clear that there are right-leaning judicial doctrines that go way beyond any meaning in the Constitution. Much of Takings Clause jurisprudence falls into this category. If the Takings Clause were construed as written and as originally understood, it’s crystal clear that there would be no such thing as regulatory takings. It also wouldn’t apply to the states. And it almost certainly would have no Public Use requirement. (Look at the text _as written_ — the Public Use clause has no normative hook). (One fun game is watching so-called textualist judges play lilnguistic gymnastics to try to avoid this inconvenient fact in the Kelo dissents — look at Justice Thomas’s dissent).

    Second, I think Nate’s claim is that this amendment is designed to curtail state constitutional interpretation in a way that the 14th amendment has never done. The 14th amendment has typically been used to strike down state statutes — though I’m not sure it never invalidated state constitutional texts (and I point that out to Nate in my prior comment). However, this one is designed to affect state constitutions, and that’s a significant shift in the state/federal balance.

  9. Mark Butler on June 4, 2006 at 9:56 pm

    I can see the distinction, Kaimi. It just doesn’t seem to be all that significant. The state constitutions are currently null and void whenever the federal constitution overrides them, so the jump to defining a certain term – which is what this is, making a legal dictionary definition – doesn’t seem like that great of a jump, paticularly because it is in defense of the long standing status quo, the common semantics of the language and its antecedents for millennia.

    Now, perhaps it would be better to simply to have an amendment that affected the federal constitution only. However, this type of a change in the legal semantics of marriage is so fundamental that having such diversity would be like a step back to the antebellum period, the other way around of course. Are such “marriages” supposed to dissapear when they cross state lines, or convert into civil unions, or what?

    I can agree with regard to the ambiguity of the public use clause, but I see some degree of common sense constraints on vague and ambiguous language a practical judicial necessity. Otherwise you either end up with requirements that are almost meaningless – e.g. public use, or absolutist, like various free speech, establishment, free exercise, due process, and liberty interpretations. “free exercise” – what is that? A license to steal? Liberty a license to incest? abortion?

    At some some point there has to be a bit of reasonableness involved, otherwise the words “free exercise”, for example, would render government meaningless.

  10. Blake on June 4, 2006 at 10:18 pm

    The intent of the amendment seems fairly clear to me: the issue is being decided by a Federal amendent that overrides any contrary interpretations. The matter is not reserved to the States. If the issue were left to the States, the Amendment would have no effect because then State Court judges would be free to bypass the Federal Constitution and simply interpret their own State equal protection clauses. Further, Mark has a point that since the Supremacy clause gives, well, supremacy to the Federal Constitution, the notion of State Constitutions ovverriding the Federal Constitution must be avoided. The purpose is to make sure that state court judges can’t legislate law for the rest of the United States — which right now are not so united.

  11. Adam Greenwood on June 4, 2006 at 10:47 pm

    I was talking to a fellow who follows the language of various amendments closely, and he pointed out that the ones that are clearest to the public are usually the most ambiguous legally. That said, I don’t think the amendment is as bad as you make out. Many of your objections boil down to its stripping power from the states and their judiciaries in various ways, but I’m pretty sure that’s a feature, not a bug. Many of your other objections are that its as general as the rest of the Constitution, instead of being as precise as a statue. But I don’t think the country will stand for seven section, codiciled amendments to the Constitution. The country wants to know what the general idea is and make sure there aren’t some technical tricks that smart lawyers are putting past them.

    ” By constitutionalizing the definition of marriage, it potentially creates a constitutional hook with which the federal courts could, if they were so inclined, rewrite marriage law as a matter of constitutional adjudication.”

    The federal courts could do so now if they were so inclined. They have already done so in important ways, and state courts have shown that it isn’t necessary to have a Marriage Protection Amendment to meddle with marriage. In fact, were it not for state courts doing so, no one would have proposed a Marriage Protection Amendment. Now, I think it does make meddling somewhat more likely, though the thrust of the amendment runs contrary to the kinds of meddling impulses the judiciary would have, so on the whole I’m not at all persuaded that this is one of those efforts where the cure is worse than the disease. I also think that this is one of those amendments that the court will have a chance to define right off, so we’re likely to get an interpretation closer to what we understand it to mean, instead of something screwy.

    “Second, the import of the amendment is unclear. By mandating a constitutional definition of marriage, it may potentially forbid states from passing civil union statutes.”

    I think the reference to “legal incidents thereof” makes the reading that forbids civil union statutes pretty thin. “Legal incidents” are civil unions, and the sentence by clear implication allows the legislatures to do them, just not the courts.

    “Third, it takes the unprecedented step of instructing state courts on how they should interpret their state constitutions.”

    I’m not sure this is as awful as you think. It doesn’t tell state courts how they should interpret their state constitution. It just tells them that, whatever their method, there is one result that they can’t reach–viz., that their state equal protection amendment or whatever requires SSM. In practice, I don’t see how this is any different from other kinds of federal supremacy, where the federal courts routinely strike down state laws, state constitutions, and state interpretations of their constitutions and laws, because the federal courts feel that they conflict with the federal constitution or even federal law. Heck, we even require state courts to apply federal law in their cases and to make it trump state law.

    “Furthermore, it would not keep state courts from saying the ambiguous state statutes require same-sex marriage, and hence wouldn’t even effectively remove state courts from same-sex marriage debates.”

    You’re not thinking this through, Nate O. State court interpretations of ambiguous laws are lots easier to override than state court constitutional interpretation. Second, the doctrine of constitutional doubt will make these sorts of readings less likely–a state law requiring SSM would be unconstitutional, which means that the state law ambiguities should not be construed so as to require SSM. Most importantly,m there’s no effective way of stripping state courts of their ability to interpret ambiguous state laws as requiring granting some of the legal incidents of marriage to some other relationship without also stripping state legislatures and referendums of their ability to do so. The law strikes a sensible balance between stopping overreaching state courts and leaving the states with some ability to go their own way.

    “For example, there is nothing in this amendment that would keep the U.S. Supreme Court from ruling that all states are required by the Full Faith and Credit Clause of the constitution to grant full recognition to the same-sex marriages of Massachusetts. Furthermore, to the extent that Congress’s ability to legislate in this area with statutes like Defense of Marriage Act is in doubt, this amendment does nothing to insure that Congress if free to do so.”

    These are good points. Off-hand, i don’t recall what the particular FFC arguments are, but perhaps they are overall less likely to succeed, or less harmful if they do, than ct. decisions mandating SSM? They certainly would seem to me to be less likely to succeed if the Marriage Protection Amendment gets through.

  12. Adam Greenwood on June 4, 2006 at 10:55 pm

    Kaimi W.,
    I’m with Mark B. I’m not saying that right-leaning judges are paragons of virtue (I think they’re light-years ahead of their left-leaning counterparts, but your mileage may differ). I’m saying that marriage is not the area that they’re champing at the bit to run away with. The three areas where right wingers tend to get the bit in their teeth are economic liberties, federalism, and presidential powers, neither of which fits here. The right wing academy, judges, and the thoughtful commentators who the first two groups respect have shown zero enthusiasm for the sorts of judicial social rule you describe. The argument that the 14th Amendment forbids abortion is far more plausible than the stuff you’re talking about (though still wrong), but it has got zero traction.

  13. Kaimi Wenger on June 4, 2006 at 11:26 pm

    Mark B.,

    It’s a threadjack, but the Public Use clause really isn’t ambiguous, in my view. It has no normative value, at all. It’s pretty simple to see:

    “nor shall private property be taken for public use, without just compensation.”

    That is absolutely not a textual prohibition on takings for private use. It doesn’t mention them at all; it simply avoids the topic altogether.

    The Framers were smart people. If they wanted to say, “no takings for private use” or “no uncompensated takings for private use” they could have. They didn’t.

    The idea giving normative force to the Fifth Amendment’s public use language is a judicial invention. Not a bad one, perhaps, but an invention nonetheless.

    Adam,

    If this amendment is enacted, the ink on it will not be dry before a host of right-leaning organizations files suit seeking to use it to strike down civil union statutes and judicial decisions. States’ rights proved to be mere lip service for the real agenda of social change; judicial restraint will suffer the same fate.

  14. Seth R. on June 4, 2006 at 11:43 pm

    Out of curiosity,

    When did the GOP stop believing in states’ rights? Was it Reagan?

    Federal power seems to be all the rage today, on both sides of the aisle.

  15. S. P. Bailey on June 5, 2006 at 12:01 am

    Kaimi: your description of the original meaning of the takings clause may be essentially acurate. Yet without more historical context than you offer, it is misleading. The founding generation likely understood the Fifth Amendment’s takings provision in terms of physical seizure only because that is the only seizure of private property that generation anticipated a very limited federal government making. No doubt the present bloated federal government—interfering as it does in nearly every area traditionally left to the states (next stop marriage!)—would be unrecognizable to the founding generation. So no, James Madison did not prophesy the advent of coercive federal laws that force certain individual property owners to shoulder alone the astronomical costs of a clean environment. Even so, only a modest extension of the Fifth Amendment’s “you take it, you pay for it” principle gets you to regulatory takings. Anyway (setting original meaning aside), the real argument is not whether or not regulatory takings should be recognized, but where the line between non-taking regulation and regulatory takings lies: the subject of Justice Holmes’ “too much,” I know it when I see it, three-part-test quagmire.

    Of course, judges on both “wings” have gone beyond the text. Both sides might make non-textual, non-intended trouble with this sweeping amendment too. On this thread and in the other recent SSM dead-horse-beatings, people have raised an interesting question: how do institutional arrangements that seem wise in the abstract fair when they seem to impede the realization of a particular policy goal? Do we only care about federalism and states’ rights in certain cases? Are such things merely instrumentalities to which we are willing to cling one day and trash the next depending on how a particular policy objective affects the kingdom and families? This possibility is jarring to my understanding of what makes good law, but it merits consideration. There is more than one thread on which the constitution might hang—substantive, structural, etc., etc.

    Anyway, Joseph Smith’s view of the constitution/federal government somehow seems relevant—extolling its inspired nature, later bitterly discouraged over its powerlessness to protect the Saints (due in part to the then-balance between federal and state power).

  16. quandmeme on June 5, 2006 at 12:15 am

    Look for Robert Rigg’s article in BYU’s Journal of Public Law on how the Supreme Court will settle the inconsistency in state courts’ jurisprudence. This exerpt is included without permission so remove me if it will get anyone in trouble:

    The Supremes:

    Recent precedents, particularly Romer v. Evans and Lawrence v. Texas, are unmistakable in their sympathy for the claimed rights of homosexuals. The logic of both opinions, while not leading inexorably to constitutionalizing a right of same-sex marriage, is clearly compatible with finding such a right. The Massachusetts court in Goodridge v. Department of Public Health certainly thought so and cited both opinions in creating a right of same-sex marriage under the Massachusetts Constitution.

    Such precedent is not important because of any binding quality it might be thought to possess. The record of the Court in recent decades testifies that past precedent can be overturned or ignored whenever five or more Justices believe the Constitution ought to say something else. It is significant, however, as an indicator of Court thinking and a source of principles—or arguments—that may appeal to members of the present Court. With no existing precedent mandating marriage as a relationship between one man and one woman, the Court is free to proceed without overruling any previous decision.

    State Courts:
    Decisions in state and lower federal courts are more of a mixed bag, but viewed as a trend over the past three decades, the treatment of homosexuals has become distinctly more favorable in both state and lower federal courts. The Vermont decision in Baker v. State, mandating domestic partnerships, with every right of married couples except the right to call their relationship a marriage, and Goodridge, granting it all to same-sex couples, represent genuine breakthroughs for gay rights. The Bruning case decided in a Nebraska federal district court could give a comparable boost to gay rights if the decision striking down Nebraska’s “marriage amendment,� adopted by statewide initiative, is upheld on appeal. Such decisions are not in any way authoritative for the Supreme Court, but they could affect majority reasoning or serve as harbingers of an “emerging social consensus.�

    To summarize what Riggs says, an ammendment is bad news for the Constitution, but the courts are making a bigger, and more dangerous mess, so there it is the only way to draw the line.

  17. Adam Greenwood on June 5, 2006 at 12:35 am

    Kaimi,

    On regulatory takings:
    The issue is more complicated than you let on. The idea that “property” as such is really just rights to do various things was not unknown to the founding generation. Seeing regulation of property use as (potentially) takings of that property is follows from that viewpoint. Not that our current takings jurisprudence is sound in all respects, or even that the regulatory takings idea is itself sound. But its not cut from the whole cloth like you suggest. If you do want to talk about something in the takings context that’s cut from the whole cloth, what about applying the clause to the states?

    It’s a threadjack, but the Public Use clause really isn’t ambiguous, in my view. It has no normative value, at all. It’s pretty simple to see:

    “nor shall private property be taken for public use, without just compensation.�

    That is absolutely not a textual prohibition on takings for private use. It doesn’t mention them at all; it simply avoids the topic altogether.

    The Framers were smart people. If they wanted to say, “no takings for private use� or “no uncompensated takings for private use� they could have. They didn’t.

    The idea giving normative force to the Fifth Amendment’s public use language is a judicial invention. Not a bad one, perhaps, but an invention nonetheless.

    I’m surprised, Kaimi. The most natural reading of this text is that private takings aren’t permissible under any circumstances. Is there any reason at all you can think of that takings for public uses would have to be compensated but private takings wouldn’t? I’ve never thought about your argument, because I’ve never heard anyone anywhere make it before, but are you really suggesting that the idea that takings had to be for a public use is some sort of Warren Court thing? I wouldn’t be surprised to find that it goes way back into the early history of the Republic.

    Adam,

    If this amendment is enacted, the ink on it will not be dry before a host of right-leaning organizations files suit seeking to use it to strike down civil union statutes and judicial decisions. States’ rights proved to be mere lip service for the real agenda of social change; judicial restraint will suffer the same fate.

    You might be right that there would be lawsuits. I’m not any more familiar with a host of right-leaning organizations and what they’re really comitted to than you are. But I am pretty familiar with right-leaning academics and judges and legal conservatives, lots more familiar than you appear to be, and I know that (1) they have no interest in using the law to effect social change and (2) that they by no means dominate either the courts or the academy. Courts and academics really haven’t been exploring how the law *already* forbids gay marriage but how it *already* requires it. In fact, if you’re right about the right-leaning organizations, we may have an ideal scenario. All sorts of aggressive readings of the Amendment get into court, they’re rejected, and we have precedents that, because they are contemporary, will tend to stick.

  18. Kaimi Wenger on June 5, 2006 at 2:00 am

    Adam,

    First, as to regulatory takings: The leading historical treatment that I’m aware of is Treanor’s piece, in which he rather decisively demonstrates that regulatory takings were not part of the original understanding of the Takings Clause. It’s at William Michael Treanor, “The Original Understanding of the Takings Clause and the Political Process,” 95 Columbia Law Review 782 (1995).

    There are lots of areas of the law in which things are gray and wishy-washy and so forth. That’s not the case here — it’s pretty plain that Madison (who drafted the clause) didn’t envision it to cover anything other than physical property, and there’s no evidence that other Founders thought any differently. This is why there was no regulatory takings doctrine for 150 years, until Justice Holmes invented it out of whole cloth in Mahon v. Pennsylvania Coal.

    Second, as to public use, you write “The most natural reading of this text is that private takings aren’t permissible under any circumstances.” I absolutely disagree.

    You’re right that the clause, as written, demonstrates that Madison never envisioned the opssibility of private-use takings. Agreed. No matter, though. The fact that Madison didn’t envision a scenario does not make that scenario unconstitutional (unless you’re adopting a very novel theory of Constitutional interpretation).

    Now, the fact that this scenario was not considered by the Founders means it’s probably off limits for federal action. The federal government is, after all, a government of enumerated powers.

    But the states aren’t.

    And in fact, the Tenth Amendment makes clear: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

    (Never thought you’d see Kaimi roll out the Tenth, didja? :) )

    So, let’s see. Theoretically, one could conceive of (1) a federal power to take for public use, (2) a federal power to take for private use, (3) a state power to take for public use, and (4) a state power to take for private use.

    (1) and (3) are expressly limited by the language of the Takings Clause. (2) is limited by the fact that the federal government is a government of enumerated powers.

    And (4) — private takings by states — is not limited at all under the language of the clause. It’s something that Madison simply didn’t bother to mention, and recall, not-bothered-to-mention does not equal unconstitutionality. Also, the 10th Amendment reserves all rights not specifically carved out, to the states.

    So it’s a right that’s reserved to the states.

    (Incorporation doesn’t help you here, either, since incorporation doesn’t turn states into enumerated-rights entities).

    I give Justice Thomas credit for _trying_ to grapple with this. However, when the rubber hits the road, he is unwilling to stick to publicly stated textualist principles. Look at the gymnastics Justice Thomas goes through to try to justify what is, in fact, an atextual (though widely, widely accepted) reading of the clause:

    Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation� for the taking, the Takings Clause also prohibits the government from taking property except “for public use.� Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power–for public or private uses–then it would be surplusage. See ante, at 3—4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect�); Myers v. United States, 272 U.S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.� Cole v. La Grange, 113 U.S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,� leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner�).1 The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.

    In other words, “the clause doesn’t really prohibit private takings, but I can string together a bunch of vague statements and amorphous ‘bedrock principles’ and hope that no one notices.” (He also makes an “it can’t possibly mean what it says, because that doesn’t make sense to me, so I’ll try to figure out what it means that isn’t what it says” argument.)

    Again, I submit to you: Madison expressly prohibited over thirty different government acts in the Bill of Rights. He was a smart guy, and if he had wanted a Takings Clause that prohibited private-use takings, he could absolutely have drafted one. How about “nor shall private property be taken for public or private use, without just compensation.â€? Or “nor shall private property be taken for any private use; nor for public use without just compensation.”

    He didn’t do that. The clearest conclusion is that it never occurred to Madison. However, Madison’s oversight does not equal a Constitutional prohibition.

  19. Mark Butler on June 5, 2006 at 2:45 am

    Thomas’ argument is abundantly clear to me.

  20. Seth R. on June 5, 2006 at 8:17 am

    Funny.

    We just read the account of the prophets Eli and Samuel in Gospel Doctrine class. It was talking about the corruption and wickedness of their sons and how that corruption proved to be a motivation for the Israelites calling for a unified kingdom instead of the less centralized system of judges.

    Corruption is always the first excuse used by those who wish to centralize all power in themselves.

    No surprise that conservatives are crying corruption in the Supreme Court as an excuse to wrest power from the Judiciary to the Executive.

    Dictators are almost always popular with the people and they almost always use populist arguments of corruption in the other branches of government to boost their own power.

  21. Dan on June 5, 2006 at 9:31 am

    All this is academic. This amendment is not going to pass, and the backers of this (Christian Conservatives) know this. They are using an important issue like this as a wedge issue in politics to score political points and to rally the base. They are using this to distract America from the failed mission in Iraq, and (because Americans have a short attention span) are hoping Americans forget Iraq and remember that Republicans actually did something in their term. It is very cynical, but that’s reality.

    One Newsweek article quotes a friend of Bush’s who actually said the following:

    “Though Bush himself has publicly embraced the amendment, he never seemed to care enough to press the matter. One of his old friends told NEWSWEEK that same-sex marriage barely registers on the president’s moral radar. “I think it was purely political. I don’t think he gives a s–t about it. He never talks about this stuff,” said the friend, who requested anonymity to discuss his private conversations with Bush.”

    I know the church feels strongly about this, and they apparently don’t care that they are being used to score political points.

    I am going to contact my Senators, but do so with a bad taste in my mouth. I hate being used.

  22. annegb on June 5, 2006 at 9:48 am

    I’m not going to contact my senators. I don’t know what I think yet. Maybe I never will.

    I’m wondering if the prophet worded this purposely in order to poll Utahns/Mormons to see how many people agree. I know that’s far fetchec, but sometimes it seems like the First Presidency is as ambivalent as the rest of us about the issue.

    I opposed the ERA because it bothers me when people start messing with the Constitution, I didn’t think it was necessary, still don’t.

    I almost wish President Hinckley had come out more forcefully one way or another. I can see each point of view and they both seem right to me. You all make sense, as much as I can understand it. If I were a juror, I guess my deciding vote would be based on the prophet’s supposed infallibility on issues that come straight from SLC. In this case, not much to go on.

    I’d have to have something much more defined before I totally back something that I know is hurting a dear friend. I’d have to be able to look into her eyes and see the pain there and know I was right. So far, no clue.

  23. Matt Evans on June 5, 2006 at 9:59 am

    Mark and Adam have responded ably to Nate’s original concerns, so I won’t address them until Nate answers.

    Kaimi, the selection you cite of Thomas’ dissent is run-of-the-mill originalism. I see nothing “atextual” in his analysis, and your argument that “public use” lacks “normative effect” requires us to believe that the clause’s purpose is to identify which takings require compensation.

  24. Matt Evans on June 5, 2006 at 10:04 am

    “I know the church feels strongly about this, and they apparently don’t care that they are being used to score political points.”

    Dan, who is using who? When religious bodies representing a huge portion of voters call for a Constitutional amendment, it’s hard to complain of an abuse of power when politicians seek to keep their voters happy.

  25. Dan on June 5, 2006 at 10:08 am

    Matt Evans

    I feel they are being used by Christian Conservatives, such as the Baptist church and the Christian Coalition, who would rather see political victories than the actual amendment passed.

    Tell me, Mr. Evans, do you see this amendment actually passing?

  26. Alma on June 5, 2006 at 10:16 am

    Alma 1: 21-22

    21 Now there was a strict law among the people of the church, that there should anot• any man, belonging to the church, arise and persecute those that did not belong to the church, and that there should be no persecution among themselves.

    22 Nevertheless, there were many among them who began to be proud, and began to contend warmly with their adversaries, even unto blows; yea, they would smite one another with their afists•.

  27. Frank McIntyre on June 5, 2006 at 10:57 am

    Dan,

    You feel that this is used to “score political points” and therefore is unworthy. But suppose the political point being scored is to force out of office a couple senators who reject the amendment (this is all hypothetical by the way)– thus making it far easier to pass the next time around. Not only will those two senators be gone, but other senators will be more likely to vote for the amendment after they see its political power. And the closer the amendment is to passing the first time around, the more clout it is likely to have for future iterations.

    These are all just “political points”, but they are also a route to passing legislation in the long run. Which is probably the goal of the First Presidency. Given that reality, the particulars of this amendment that Nate finds questionable may well not be all that important, since this amendment probably won’t pass, but some future, more refined, version might.

    Oddly enough, your criticism is then a reason to go ahead and favor the amendment, despite its failings, rather than a reason to ignore it.

  28. john f. on June 5, 2006 at 11:04 am

    Kaimi, I’m with Thomas on this one. I am really surprised to see you stumping for takings for private use.

    As Matt said, the excerpt you quote from Thomas is very tight originalism, guided by logic. This is not creation out of whole cloth, as you suggest. It is reasoned analysis of what the original sentence says.

  29. Adam Greenwood on June 5, 2006 at 11:17 am

    “The leading historical treatment that I’m aware of is Treanor’s piece, in which he rather decisively demonstrates that regulatory takings were not part of the original understanding of the Takings Clause. It’s at William Michael Treanor, “The Original Understanding of the Takings Clause and the Political Process,â€? 95 Columbia Law Review 782 (1995).”

    Kaimi, I’ve read this article and the only thing decisive about it was what Treanor wanted the original understanding to be.

    There are lots of areas of the law in which things are gray and wishy-washy and so forth. That’s not the case here — it’s pretty plain that Madison (who drafted the clause) didn’t envision it to cover anything other than physical property, and there’s no evidence that other Founders thought any differently. This is why there was no regulatory takings doctrine for 150 years, until Justice Holmes invented it out of whole cloth in Mahon v. Pennsylvania Coal.

    Kaimi, regulatory takings *is* about physical property. If regulatory takings didn’t come along until Mahon, it might well be because until the rise of the Progressives, property rights were not restricted by law other than as required by nuisance doctrines. Highly likely, in fact.

    As for your unique theory that the takings clause has no implications for private takings, I am still very unimpressed with your approach to texts. ‘Inclusio unius’ isn’t a principle of logic but it is a principle of human language and meaning. If the Founders had wanted private takings to be legal under any circumstances, they would have said so. Madison et al. were fairly bright fellas and I just don’t buy that while explicitly saying something about public use takings they just didn’t have any views on private grabs, never occurred to them, etc. I don’t see the big, gaping difficulties with J. Thomas’ argument that you do. But I notice that you’ve essentially conceded the point: “Now, the fact that this scenario was not considered by the Founders means it’s probably off limits for federal action.” Since Congress could justify private takings under many of its enumerated powers (war power–let vets pick out a house and we’ll give it to them! commerce–companies can sieze land if they promise to build works employing at least X people!) if congress can’t do it it must be because the 5th Amendment stops them. The rest of your argument isn’t really an argument about what the 5th Amendment means, but about incorporation. Since I haven’t defended incorporation here, I don’t feel the need to respond.

    Anyway, if you’d like, I’ll let you have the last word. I don’t want to jack this thread more than it has been already.

  30. Adam Greenwood on June 5, 2006 at 11:20 am

    “Corruption is always the first excuse used by those who wish to centralize all power in themselves.

    No surprise that conservatives are crying corruption in the Supreme Court as an excuse to wrest power from the Judiciary to the Executive.”

    You lost me, Seth R. When have conservatives claimed that the Supreme Court was corrupt? Power-hungry and wrong-headed, yes, but *corrupt*? And how exactly does the Marriage Protection Amendment or the Takings Clause wrest power from the Judiciary and move it to the Executive?

  31. Kaimi Wenger on June 5, 2006 at 11:29 am

    John,

    I’m not stumping for it; I’m pointing out that it’s a case of fair-weather textualism.

    Matt,

    Here’s why Justice Thomas’s argument fails:

    The key to it is two sentences, “In other words, the Clause would require the government to compensate for takings done “for public use,â€? leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation.” That is, Justice Thomas recognizes that one reading of the clause would be not to require compensation for private takings. He relies heavily on a one-sentence, vague description of “bedrock principles” to avoid that reading.

    His history is wrong. Wrong, wrong. Take a look at the Treanor article; take a look at the history of the Takings Clause. The TC was put into place precisely because there was no bedrock history of compensation for takings. It was one of the first clauses of its kind; it marked a shift in legal treatment of property and government.

    It was a shift that many thinkers had been advocating. James Madison, for example. However, it was anything but a bedrock principle.

    On my side, I’m surprised that so many people are willing to blithely ignore the natural reading of the text, based on its outcome. Let me give this hypothetical:

    Imagine that the constitution had a Loaning Clause, which said:

    “Nor shall government lend money for Matt Evans, except in time of war.”

    That’s a limitation on loans to Matt Evans. Is it also a limitation on loans made to other people? Is it a limitation on loans made to Nate Oman? If so, how?

  32. Adam Greenwood on June 5, 2006 at 11:40 am

    Kaimi,
    Explain me this. There are two readings of the clause. In the one that nearly everyone accepts, public takings have to be compensated, and private takings can’t be done. In yours, public takings have to be compensated, but private takings don’t. Which makes more sense? Your “natural reading” of the text is only natural if you assume that public takings are more problematic than private takings, which is bizarre.

  33. Mark Butler on June 5, 2006 at 12:01 pm

    Just to remind people, I am not the fellow who goes by “Mark B.” around here. I suspect he might rather disagree with my opinions on the subject. It might be nice someday if blogging systems had a dual identity system, like email, with “Full Name ” so we could easily tell people with the same name apart. Otherwise it seems I would have to use an alias or a nickname, which seems unseemly for a refined forum such as this.

  34. Mark Butler on June 5, 2006 at 12:04 pm

    I intended “Full Name (unique handle)”, except with angle brackets: like
    “Full Name <unique handle&gt” hopefully.

  35. roland on June 5, 2006 at 12:36 pm

    Does anyone know yet if there are enough votes in the senate to pass this? The last news I heard is that the amendment needs 67 votes to pass, but that conservatives were having an awfully hard time coming up with just 50 votes.

  36. a random John on June 5, 2006 at 12:40 pm

    Mark Butler,

    which seems unseemly for a refined forum such as this.

    Whatever.

  37. Mark Hanzel on June 5, 2006 at 12:40 pm

    Julie:

    You quoted the March 1980 Ensign article in regard to the arguments the church made against the Equal Rights Amendment. In particular, you stated:

    my suspicion is that the Church is just more concerned about specific moral issues than the power distribution between the state and fed. govts.

    The difficulty I have with that interpretation is illustrated by another statement from that same March 1980 Ensign article, which was just a few lines past the one you quoted:

    Therefore, maintaining the essential separation and division of powers provided for by the divinely inspired Constitution is a moral issue for Latter-day Saints.

    It’s hard to accept your idea that there is a distinction between moral issues and the power distribution between the state and federal governments, when the church clearly stated that the power distribution between the state and federal governments IS a moral issue.

    This lends a lot of weight to Last Lemming’s argument that the church used all of the arguments they thought would be effective against the ERA, but that this one in particular was disingenuous. If they were sincere about that argument at the time, you might hope that there would at least be some acknowledgment that the present proposed amendment is a clash of conflicting moral issues and statements to the effect that they feel the one moral issue trumps the other. Instead, they frame the current issue in absolute terms, as if there is no legitimate argument from any source that should give any member of the church pause, let alone an argument that came from the church itself.

  38. Mark Butler on June 5, 2006 at 12:53 pm

    arJ, I can see your point of course, however a forum is what we make of it, and certainly most LDS blogs are a cut above Slashdot, to say the least, and a couple of orders of magnitude above “chat” and “texting”, where the most bizarre abbreviations, spellings and self-elevating handles reign supreme.

  39. Mark Butler on June 5, 2006 at 1:00 pm

    I certainly think the leaders of the Church would see the legitimacy of a pro-traditional marriage position that protects it at the state level and just uses the federal constitution to keep it from propagating full faith and credit style. I think that probably would require a federal constitutional amendment, however, a milder one than what is currently being proposed. Clearly they would like members to support this one, but it is the urgency of *some* kind of solution that does not enervate the institution of marriage that is the principle here.

  40. Blake on June 5, 2006 at 1:16 pm

    Mark Hanzel said: “This lends a lot of weight to Last Lemming’s argument that the church used all of the arguments they thought would be effective against the ERA, but that this one in particular was disingenuous.”

    You’re still missing the issue Mark. Only a Federal Constitutional amendment can address the issue. With the ERA no amendment was necessary because the 14th Amendment already handled it. So far from being disingenuous, I suggest that your comments are off the Mark.

    In fact, after having reviewed he issue more carefully I can now see why the Church has a vital interest in this Amendment. religious freedom of practice is at issue. The tax exempt status of organizations that fail to grant fundamental rights have been denied by prior precedents. If gay unions/marriage are recognized as a fundamental right in any State, the Church may lose its tax exempt status (the same way that the Catholic Charities did in Mass. or Bob Jones did in the 1983 case). So the Church has a vital interest at stake. Moreover, all American who value freedom of religion and disallowing the governmental to approve or disapprove of Religious beliefs (not just practices this time) also have a vital interest in this issue. Indeed, several lawsuits are presently pending against the BSA right now because it denies gays the right to be scout leaders.

    The problem, again Mark, is that the FFC together with the Supremacy clause make it quite probable that if one state recognizes gay marriages, all others must as well. There is no possibility of a State barring the operation of the Federal Const. clauses by either state statute or state constitution. Only a Federal Const. can avoid severely truncating religious freedom and avoiding these dangers of government mandating that all must give up any religious belief that gay marriage is inappropriate or suffer loss of tax exempt status.

    When I began I was luke-warm about the Amendment. I can now see that it is vital to preserve religous freedoms.Nate’s analysis is also short sighted. If the language of the amendment does not expressly address the status of state constitutional analysis, then the effect of the Amendment can be avoided and all of the problems arise in a different form because state court judges will merely interpret state constitutions to grant fundamental rights over and above the Federal Constitution.

  41. Frank McIntyre on June 5, 2006 at 1:18 pm

    Mark Hanzel,

    This article was written by Ensign staffers, right? Are we now to believe that even Ensign staffers are fallible? Where will it end?! Also, your comment caused me to look at the article, which is really interesting as it also represents a time when the Church came out on a hot political issue. One of the reasons noted for opposing the ERA was…. that it might legitimize homosexual marriages!

  42. Matt Evans on June 5, 2006 at 1:27 pm

    Kaimi,

    I haven’t read the Treanor article, but I can’t imagine he or anyone else writing law review articles argues, as you are here, that the takings clause requires compensation only if the takings is for a public purpose. Since no one argued that point in Kelo (the respondents didn’t claim “the city of New Canaan mistakenly believed they needed to pay the homeowners for their land slated for the new Sheraton Hotel. Because Sheraton is a private organization, no compensation was even necessary…”), I have to assume you’re not reading him right. Otherwise the respondents would have trotted this claim before the justices.

    Mark Hanzel,

    While I agree that the proposed amendment represents a clash of moral principles, the church hasn’t “frame[d] the current issue . . . as if there is no legitimate argument from any source.” They’ve only said that they support an amendment.

  43. Mark Hanzel on June 5, 2006 at 2:14 pm

    Frank:

    I don’t think the March 1980 article can be easily dismissed because it was “written by Ensign staffers.” That particular article was a statement on the church’s official position. Dallin Oaks said as much in a February 1992 Ensign article:

    “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.�

    This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the U.S. Constitution.

    The particular powers that are reserved to the states are part of the inspiration. For example, the power to make laws on personal relationships is reserved to the states. Thus, laws of marriage and family rights and duties are state laws.

    Oaks is saying that the states’ rights to make laws on personal relationships is a part of what is divinely inspired about the Constitution. I found that argument compelling at the time. I find it compelling now.

    Blake:

    I understand the legal issue as you explain it. I just don’t agree that the potential outcome you fear merits something as drastic as a Constitutional amendment, nor do I think it changes the fact that there is a definite contradiction between key arguments the church was using against the ERA and their current position on a marriage amendment. That’s especially true considering that the arguments against the ERA clearly stated that preserving the division of powers is a moral issue for Latter-day Saints.

    Matt:

    Point taken in regard to the way the issue has been framed. The only distinction I would make is that a few months ago, the church was saying that they support an amendment. What changed with the recent statement is that they now are saying that they support this particular amendment.

  44. Frank McIntyre on June 5, 2006 at 2:24 pm

    Mark,

    Can you point out for me where the ENsign 1980 article represents itself as being definitive or official. Also, I don’t know that official Ensign staffer is quite the same as unanimous FP message. The Oaks article looks much more promising in making the argument you wish to. I imagine that Oaks could also tell you why he believes what he wrote there and how that relates to the current proposal. He’s smart like that.

  45. Seth R. on June 5, 2006 at 2:26 pm

    Re Adam #30,

    It’s just sloppy arguing on my part. I do that, from time to time, when I’m a bit rushed.

    It’s more a general trend I’ve seen in mainline conservative opinion. Those conservatives in favor of a powerful Executive have been drowning out the states’ rights faction as of late. “No Child Left Behind” would be one example, federalizing national marriage law would be another example. If they could, these guys would probably push for federal preemption of state rules and laws on class action lawsuits.

    I’m not debating the rightness or wrongness of these positions. But I’m just saying that there is a real movement among conservatives for a muscular presidency.

    The whole analogizing about the Old Testament was tenuous. I’ll admit it. Scriptural analogies are always an imperfect fit.

    But I was simply struck by the situation of Israel moving from a corrupt and fractured system of judges (little more than charismatic warlords) to calls for a centralized King who could unite all dissenters and lead the nation to glory. And one of the key turning points in popular opinion that led to calls for a king, was the corrupt and self-serving behavior among the sons of Eli and Samuel.

    Of course, the Supreme Court justices are no prophets. But their societal role as interpreters of the Constitution (American scripture) and a moral check on the other elements of government (as ancient prophets were in Israel) seems similar to the role played by Eli and Samuel. Like the Supreme Court, Eli and Samuel didn’t just have moral authority (as Gordon B. Hinckley and others do). They had actual political influence in Israel and legitimacy in the eyes of the people. Like the Supreme Court, they had no officers or army and no real power to coerce (except via acts of God). They could only convince.

    As far as the Court being corrupt. Well, I agree it isn’t. It’s not like they’re taking bribes or anything. But they have been accused of being “activist” with the “clear intent of the founders” and the text of the Constitution. Which for some conservatives, amounts to the same thing (especially when it results in judicial sanction of immoral behavior like abortion).

    Centralization of power in Israel was accompanied by the prophetic loss of legitimacy among the populace. It’s actually rather logical. To focus power in one individual, you must undermine all other sources of societal authority.

    This seems, to me, like the real motivation behind the Republican-controlled Presidency’s and Congress’ attack on the legitimacy of the Judiciary. It’s really the only institutional obstacle for their recent power-grab.

    As always, corruption/activism provides the perfect excuse for rallying popular support in favor of “more effective and morally robust governance.” How many times have you heard a politician talk about “accountability?”

    What they really mean is “accountability to ME.” But it’s a power-play that takes advantage of American fears of corruption, self-servience, and moral decay.

    Right.

    Like I said, it’s a clumsy analogy and chock-full of holes. Write it off to one man’s attempt to “liken the scriptures.”

  46. Julie M. Smith on June 5, 2006 at 2:29 pm

    Re Mark in #37:

    Wow, thanks for providing that last line. I hadn’t read the original article; I was just quoting last lemming’s quotation of it. What you added certainly puts a different spin on things. I don’t entirely follow Blake’s response so perhaps that solves the issue but I’m just not sure. Frank thinks we can dismiss the article because it was written by a staffer, but I find it very difficult to believe that it would have been published if it didn’t gain the approval of at least one or two people in authority.

  47. Adam Greenwood on June 5, 2006 at 2:36 pm

    Seth R.,
    I can’t speak for other conservatives, but when I attack the legitimacy of things judges do, its because I think they’re illegitimate.

    “Those conservatives in favor of a powerful Executive have been drowning out the states’ rights faction as of late. “No Child Left Behindâ€? would be one example, federalizing national marriage law would be another example. If they could, these guys would probably push for federal preemption of state rules and laws on class action lawsuits.”

    This is still pretty muddled. ‘No Child Left Behind’, the Marriage Protection Amendment, and attempts to put multi-state class actions into federal court do not significantly enhance the authority of the federal executive, that I can see.

    “I’m not debating the rightness or wrongness of these positions. But I’m just saying that there is a real movement among conservatives for a muscular presidency.”

    And this is disingenuous. I agree that there is a “real movement among conservatives for a muscular presidency,” esp. when it comes to foreign affairs. But you can’t start throwing around language about tyranny, dictatorship, making comparisons to Saul and undermining the legitimacy of the prophets, and so on, while claiming that you’re not making any judgments about the rightness or wrongness.

  48. Seth R. on June 5, 2006 at 2:41 pm

    Blake, I don’t see why this Constitutional Amendment would be any better at protecting Church autonomy from government, than my own proposed Amendment terminating government power to issue marriage licenses would be.

    Religious autonomy has always had this open back-door of state-endorsement. As long as that door remains open, religion will be vulnerable to secularist attack. You can’t have government endorsement of what is decidedly a religious concept and expect governmental mandates for equality to pass you over. As long as government is relied on as the defender of marriage, marriage will always be vulnerable to those arguing fairness and equality. Those are powerful ideas that will not go away.

    But I do think those conflicting ideas will simply be a non-issue once we get rid of this albatross-around-the-neck of state-endorsement of our religious convictions.

  49. Nate W. on June 5, 2006 at 2:49 pm

    Frank,

    I imagine that Oaks could also tell you why he believes what he wrote there and how that relates to the current proposal. He’s smart like that.

    That’s the thing, isn’t it? The bretheren have made a declaration but no real reasons for it beyond a vague bugaboo about the integrity of the family. Meanwhile, liberals and conservatives alike are uneasy about the scope and subject matter of the amendment, but knowing that they must follow the prophet, swallow their objections and launch into full scale apologetics mode, trying their best logical somersaults.

    The Church made a reasoned, principled argument against the ERA. When they stepped into the political forum, they adopted the rules of the forum, providing logical arguments that the membership and allies could use to have a reasoned discourse and attempt to persuade and communicate with the other side. That kind of logical persuasion is distressingly absent from the discussion at this point in time. Instead, we have claims without warrants from the bretheren and appeals to authority from much of the body of the church.

    I personally don’t think that the calling of prophet exempts one from providing a logical argument in defense of one’s position. Rather, I believe that persuasion and dialogue are the essence of the priesthood power, and that the calling should empower a prophet to make convincing arguments.

  50. Blake on June 5, 2006 at 2:53 pm

    Seth R. The proposed Amendment is preferablet to getting the govt. out of the marriage business (tho I too favor that) because it is politically a still-birth. No chance of success whatsoever. You are right that equality is a strong and powerful idea; but no one has demonstrated an inequality (not just any configuration of human relationships is entitled to govt. protection).

    Mark: Of course it is important not to tamper with the Federal Const. unless it is necessary. I can see why the church sees it as absolutely necessary. Your assurances, like others, ring hollow in light of the attacks on the BSA, Catholic charities and the Bob Jones case. Perhaps you value a useless ceremony that grants gays what they can already have thru contracts. I believe that the interest in protecting religious freedoms far outweighs such issues.

  51. Seth R. on June 5, 2006 at 2:58 pm

    The problem is Adam, that scriptural examples are often more extreme and clearly defined by hindsight than the problems we face day-to-day.

    And yes, I can refrain from discussing the rightness of specific instances of federalizing what has traditionally been state law, while expressing concern about the overall trend.

    But the main objection appears to be that I’m using inflammatory examples and words like “tyranny.”

    Question: Am I only allowed to warn of “tyranny” when the President has actually become a tyrant?

    Little late isn’t it?

    Or am I allowed to use the word when I feel that tyranny is the direction we are moving in, regardless of how objectively far away from it we are?

    Is the example of Saul only useful when we have leader who is behaving exactly like Saul?

    If you want to tear apart how well these stories actually fit the facts on the ground today, be my guest (I doubt it’ll be much of a challenge). But I disagree with your assertion that they have no contemporary application at all.

    Oh, and in all fairness. The trend of a muscular executive is hardly a solely Republican phenomenon. The Democrats are as big on federal power as anyone (Endangered Species Act being one good example among many).

  52. Blake on June 5, 2006 at 3:01 pm

    Nate W. I believe that you are not correct about a prophet needing to give reasons to justify what he asks us to do. The prophets in the OT don’t. In fact, the prophet need not even understand why God asks a certain thing of him. Prophets are not philosophers, lawyers, or professors as such. They only need to listen to God and ask us to do the same.

  53. Adam Greenwood on June 5, 2006 at 3:02 pm

    Seth R.,

    the church will be more vulnerable to charges that it discriminates based on marital status once the government has decided that marital status as such has no place in the public sphere. On the other hand, if the government actually takes positive steps to recognize the church’s definition of marriage in its own, most fundamental laws, then the likelihood of the church being viewed as discriminatory on that basis is much less. Also, I think your idea that govt. recognition of the conditions of marriage will lead to regulation of temple sealings is hallucinatory. The govt. is already heavily involved in defining what is and what is not a marriage and this has not so far led to the regulation of temple marriage. The reason being that the govt. doesn’t really care what happens in the temple because it doesn’t feel it has to call everything a marriage that the church calls a marriage.

  54. Seth R. on June 5, 2006 at 3:03 pm

    Blake,

    Man and woman love each other and get governmental blessing for a marriage.

    Woman and woman love each other and get a refusal.

    Inequality. Period.

    You and I may agree with and support that inequality. I don’t believe homosexuals do have a right to marriage. I don’t believe the definition of marriage encompasses their relationships.

    But it’s still indisputably an inequality before the law. And this still holds even if legislation gives gay couples all the same tax breaks and visitation rights, etc.

    It’s just plain inequality and will always be subject to attacks on principles of fairness as long as it exists. So annihilate the inequality. Problem solved.

  55. Adam Greenwood on June 5, 2006 at 3:04 pm

    Seth R.,

    its still the case that the Marriage Protection Amendment does nothing to further Executive power. If you don’t want to discuss specific instances, why bring it up in this thread?

    For the record, I also think that the trend to ever increasing federalization is dangerous, as is the trend to greater executive power, but I don’t know if the alternatives are any better.

  56. Adam Greenwood on June 5, 2006 at 3:07 pm

    Seth R.,
    if you’re willing to accept that as inequality, than every law is vulnerable to inequality attacks and should be gotten rid of.

  57. Seth R. on June 5, 2006 at 3:17 pm

    Adam,

    The temple sealings concern was more of an open question I threw out. You’ve given me your answer and I don’t necessarily disagree with it.

    As far as the concerns you have with an Amendment removing government from marriage … I think those could probably be addressed with careful drafting of the language itself.

    BYU discriminates all the time on unconstitutional grounds. As a private religious school, it is allowed to do that. I just don’t see any real examples of where separating government from religion has resulted in increased government interference with religion. Perhaps I’m not understanding your argument. Clarification?

    On the balance, I think government endorsement of religion is generally more dangerous to religion than government withdrawal. I have never believed (as many liberals seem to) that “separation of church and state” was instituted to protect democratic government from religion. Its primary function is to protect religion from democratic government.

    I objected to “Faith-Based Initiatives” on the same principle. Once you accept federal money, you also accept federal regulation of how you use that money. This can even extend to things only distantly connected to that money. Once religion is beholden to government, government has leverage in making religion behave itself.

  58. Seth R. on June 5, 2006 at 3:19 pm

    Adam,

    I don’t mind if laws criminalizing embezzlement are subject to attacks of fairness.

    But religion holds a special place in America. It deserves more insulation from that kind of public debate than our criminal code does.

  59. Brad Kramer on June 5, 2006 at 3:23 pm

    Adam,

    The government involving itself in what is and isn’t a marriage already once led to efforts to regulate what goes on in temples. Didn’t Pres Woodruf cite a vision of the federal govt. unceremoniously shutting down temples as a central reason for abandoning the practice of plural marriage? I think your trust of politicized evangelicals, based presumably on the fact that we’re in bed together on SSM and abortion, is also hallucinatory. If this amendment further emboldens their belief that they have a duty to use the power of the state to create a moral society as they define it, based on their reading of the Bible, why would they not try to come after Mormons? Evangelical anti-Mormons will be the first to point out that polygamy is still being practiced, albeit on a more limited level, in Mormon temples via the sealing of one man to multiple dead wives. They even love to point to Elder Oaks as an example.

  60. Last Lemming on June 5, 2006 at 3:23 pm

    I apologize for omitting the quote from the March, 1980 Ensign that Mark Hanzel so helpfully provided. I thought more people would want to post excerpts from that article and I was in a rush to be first, so I stopped reading too soon. The 1980 article has Dallin Oaks’ fingerprints all over it, and while it is not as authoritative as a First Presidency statement, it was not just some idle cut-and-paste job put together by an Ensign staffer.

    Only a Federal Constitutional amendment can address the issue.

    Matt Ellgren at Purim posted the following link that does a better job that I can of explaining why this is not correct. It also deals effectively with the full-faith-and-credit issue. In short, if the federal DOMA is constitutional (as I believe it to be), the amendment is superfluous at best.

    http://www.cato.org/pub_display.php?pub_id=6379

    If gay unions/marriage are recognized as a fundamental right in any State, the Church may lose its tax exempt status (the same way that the Catholic Charities did in Mass. or Bob Jones did in the 1983 case).

    If Massachusetts taxes the Church, then shame on Massachusetts. The tax exemption for Churches is not, however, a constitutional requirement. It is certainly in the Church’s financial interest to retain the exemption, but it is hardly vital. The Church isn’t going to wither and die just because it has to pay taxes in Massachusetts. As for the IRS, it could not care less whether a state grants the Church a tax exemption–it is bound only by federal law. And I certainly hope we do not find money to be at the core of the Church’s argument to amend the Constitution. Even I’m not that cynical.

    several lawsuits are presently pending against the BSA right now because it denies gays the right to be scout leaders.

    The Supreme Court disposed of those cases with the Dale decision back in 2000. Just last week it refused to hear a case asking that BSA be barred from using public schools because it requires a religious oath. The lawsuits may keep coming, but the court has staked out a pretty clear position.

  61. Seth R. on June 5, 2006 at 3:28 pm

    Does anyone have the details on why the Catholic Church is being taxed in Massachusetts?

    I think “Evangelicals” are only one possible group that might use the Amendment as a sword against religions. There are many others.

    But I don’t claim to see how the Amendment would be used to “crack-down” on temple marriage. I haven’t performed the legal analysis required to predict in this area.

    My argument is limited to general misgivings about government involvement with religion and gut instinct about where it is going to lead us. My argument is largely practical and only marginally legal.

  62. Adam Greenwood on June 5, 2006 at 3:33 pm

    Seth R.,

    Let me use an example that’s kind of distasteful, but I think makes the point. Suppose you are a religion that believes that interracial marriage is wrong, for whatever reason. You therefore have a no interracial dating policy at your school, and you refuse to hire people who are part of interracial marriages. Which do you think would most protect that school from having its tax-exempt status stripped on racial discrimination grounds, or for being prosecuted under hate speech laws? (1) A law specifying that interracial marriages are illegal or (2) a law stating that marriage as such will no longer be recognized by law? To my mind, the answer is clearly 1. Similarly, people who believe in racial equality are a lot better off now that the principles been enshrined into law than if the govt. just washed its hands of the thing.

    If your position gets enshrined into law, you are a lot less likely to have the state punish you for it. Especially if people argue that your position is unequal or unfair. Which brings me to my next point.

    “I don’t mind if laws criminalizing embezzlement are subject to attacks of fairness.
    But religion holds a special place in America. It deserves more insulation from that kind of public debate than our criminal code does.”

    Here’s the thing: debates about what the marriage law should be are not debates about the unfairness and inequality of religious marriages. They are debates about the unfairness and inequality of civilly recognized marriages. So if your concern is just public respect for religion, you needn’t worry. On the other hand, this means that to the extent people are worried about the inequality and unfairness of religious practices, those concerns won’t go away once the marriage laws get changed, or done away with altogether. And since laws about inequality and so on would still be on the books, the danger still remains.

  63. Adam Greenwood on June 5, 2006 at 3:37 pm

    “The government involving itself in what is and isn’t a marriage already once led to efforts to regulate what goes on in temples. Didn’t Pres Woodruf cite a vision of the federal govt. unceremoniously shutting down temples as a central reason for abandoning the practice of plural marriage? ”

    The huge, glaring difference between polygamy and the Marriage Protection Amendment is that Marriage Protection Amendment doesn’t make it criminal to perform ceremonies for gays called ‘marriages,’ or to tell people you’re married, or to live in the same house, or what not. If the feds had decided in the 19th Century that only one wife could claim automatic inheritance rights and the other legal benefits of marriage, could we have lived with that? You bet. Would the feds have had to shut down the temples? Nope. This whole polygamy bit is a big ol’ red herring, and you know it.

  64. Adam Greenwood on June 5, 2006 at 3:40 pm

    With respect to revelations, I am generally uncomfortable with the rule that 1980 Ensign articles trump mid-90s Proclamations jointly made by the apostles and prophets and two-week old requests from the First Presidency.

  65. Kimball L. Hunt on June 5, 2006 at 3:56 pm

    The Brethren, concerned by torrential rains ( . . . threatening the greater culture’s traditional world view? . . . ), ask members to volunteer to fill sandbags; yet some are concerned such labors will be for naught — the proposed levies too makeshift or inexpertly placed in relation to the floodplain, to thus wreaking more havoc than the flood water?

  66. bbell on June 5, 2006 at 4:01 pm

    #64

    Me to its called making decisions for the Church. In 1980 opposing ERA and in 2006 supporting anti SSM measures. In both cases the FP were opposing the liberal secular agenda.

    Next topic. This is getting boring and tiresome.

  67. Brad Kramer on June 5, 2006 at 4:21 pm

    Adam,

    I’m not substantively equating the two, but merely pointing out that they both spring from the same source — the desire on the part of socially conservative christians — especially the evangelical ones — to use the power of the government to root out non-traditional marriages in an effort to save civilization. We can argue to death how JS, BY, JT, WW, et al might have felt about our about-face re the power of the federal government to regulate marriage, but that’s not my concern — I’m more than willing to give as much weight to living prophets as dead ones. My concern is that I’m not about to believe that just because we happen to be on the same side of the fence on this particular issue doesn’t mean that evangelicals are going to start liking us or stop believing that Mormonism is a Satan-inspired heresy of the highest order. My family and I are visiting Texas right now, and my sense of the waters here is that most of the locals would not oppose remarkably Draconian, dare I say Republican (in the 1880s – 1890s sense) measures to deal with Mr. Jeffs and his cohorts once and for all. I simply don’t like the idea of reifying in the minds of politically ambitious evangelicals the principle that State power cannot be abused as long as it is wielded in the service of Bible-based ends.

  68. Brad Kramer on June 5, 2006 at 4:21 pm

    Adam,

    I’m not substantively equating the two, but merely pointing out that they both spring from the same source — the desire on the part of socially conservative christians — especially the evangelical ones — to use the power of the government to root out non-traditional marriages in an effort to save civilization. We can argue to death how JS, BY, JT, WW, et al might have felt about our about-face re the power of the federal government to regulate marriage, but that’s not my concern — I’m more than willing to give as much weight to living prophets as dead ones. My concern is that I’m not about to believe that just because we happen to be on the same side of the fence on this particular issue doesn’t mean that evangelicals are going to start liking us or stop believing that Mormonism is a Satan-inspired heresy of the highest order. My family and I are visiting Texas right now, and my sense of the waters here is that most of the locals would not oppose remarkably Draconian, dare I say Republican (in the 1880s – 1890s sense) measures to deal with Mr. Jeffs and his cohorts once and for all. I simply don’t like the idea of reifying in the minds of politically ambitious evangelicals the principle that State power cannot be abused as long as it is wielded in the service of Bible-based ends.

  69. Seth R. on June 5, 2006 at 4:31 pm

    Adam,

    I think we’ve come to the central problem (and one I recognize with my own argument).

    Is marriage a religious concept, or a societal concept?

    Well, up until now, the answer has been: both.

    The problem with my proposal is that it makes a decision that, in America, marriage will no longer be a societal concept, but purely a religious concept. That will definitely be a big loss for our society. Marriage will lose some of its prestige in the eyes of many Americans if my proposal is chosen.

    I’m not trivializing that loss.

    But respect for the formalities of marriage is already dwindling away. I suspect that among those who still plan on an official marriage, the primary motivation is for artificial economic and legal reasons that have nothing to do with the real religious meaning behind marriage.

    We’re already losing the hearts and minds of the people. Is it worth artificially imposing respect for marriage on society with a system of governmental sticks and carrots?

    When is it time to simply draw the wagons, reclaim marriage for religion, and make sure our own religious views aren’t tainted by association with government.

    For me, marriage is primarily religious, and only secondarily societal. I am willing to give up the societal recognition if it threatens to drag the religious meaning down with it. Sometimes being a “city on a hill” requires separation from the suburbs on the flood-plains.

    So perhaps the real question between us is whether it’s a good time to be a fatalist. I think it is. Perhaps you are arguing that we aren’t there yet.

  70. Adam Greenwood on June 5, 2006 at 4:32 pm

    “My concern is that I’m not about to believe that just because we happen to be on the same side of the fence on this particular issue doesn’t mean that evangelicals are going to start liking us or stop believing that Mormonism is a Satan-inspired heresy of the highest order. ”

    Not all evangelicals think like that, but some do. So if your point is just that we shouldn’t support the Marriage Protection Amendment in the hopes that it will make evangelicals like us, I agree with you. I’m sure the First Presidency and nearly everyone else does to.

  71. MikeInWeHo on June 5, 2006 at 4:37 pm

    Amen, bbell !

    Anyone want to predict what the final senate vote will be tomorrow? My hope is that the ammendment garners less than 50 votes, only for symbolic reasons. I haven’t been following it very closely.

  72. Adam Greenwood on June 5, 2006 at 4:37 pm

    “I suspect that among those who still plan on an official marriage, the primary motivation is for artificial economic and legal reasons that have nothing to do with the real religious meaning behind marriage.”

    I think thats (1) inaccurate and (2) tries to sort out and separate people’s motives in a way that’s not very real and (3) ignores the real effect that law has on helping people decide what’s important. That is, if the law recognizes marriage and gives it economic and legal incentives, people will be attracted to it not just for the incentives but because, if society puts those kinds of incentives on it, marriage must be important.

    “So perhaps the real question between us is whether it’s a good time to be a fatalist. I think it is. Perhaps you are arguing that we aren’t there yet.”

    Yeah, I think that’s our main disagreement. But I think that if you look at the Proclamation on the Family and the things the prophets and apostles have said about a marriage amendment, they don’t think marriage in America is ready to be written off either.

  73. Brad Kramer on June 5, 2006 at 4:49 pm

    It’s not just that supporting the amendment won’t make them like us; it’s that it won’t make them like us AND will embolden their sense of mission in using state power to impose their expressly religious view of the world on republican society while creating a precedent (and possibly a legal framework) for doing so. If I didn’t think the amendment was portentous in itself — that it didn’t have the potential for signaling greater government involvement in defining and regulating marriage according to the whimsy of whichever political coalition is better mobilized — I wouldn’t much care how it will (or won’t) affect our “relationship” with evangelicals. Would a federal law stating that religious organizations that openly affirm the principle of plural marriage are restricted from perfomring marriages outside of public scrutiny be popular enough to pass? Would the SC uphold it? I’m not sure, but I can just see Scalia citing Davis v Beason to support it with the same smug glee as his citing of Reynolds v US in Smith v E.D., upholding laws that effectively criminalize the use of sacramental peyote in religious ceremonies.

  74. Last Lemming on June 5, 2006 at 4:51 pm

    It is expected to garner 52 or 53 votes.

  75. Adam Greenwood on June 5, 2006 at 4:59 pm

    Really, Mr. Kramer. This is pretty tenuous stuff, even for an SSM debate.

  76. Brad Kramer on June 5, 2006 at 5:10 pm

    I’d say condescension is a pretty tenuous method for dismissing someone that disagrees with you. If you really don’t see this amendment as opening up the door to future federal regulation of marriage in ways potentially harmful to the Church’s own interests in marriage — especially when the base of support for this consists largely of people who tend to view what goes on in our temples as obscene — then just say so.

  77. DavidH on June 5, 2006 at 5:13 pm

    I am aware that Catholic Charities is getting out of the adoption business in Massachusetts. I have not heard or read that it had lost its tax exemption there, and I cannot find any source on the web for that claim (I may not be sufficiently adept at googling).

    http://www.chicagotribune.com/news/nationworld/chi-0606050188jun05,1,3751613.story?coll=chi-newsnationworld-hed

    I understand the fear regarding Full Faith and Credit, but I do not see why it, or the fear of any other theory of a court’s undemocratically imposing same sex marriage, could not be dealt with by a constitutional amendment clearly stating that no state is required to recognize same sex marriages of its own citizens or any others. I am very uncomfortable with the idea of preventing a state from democratically adopting same sex marriage (as long as other states are not required to recognize them).

    And, I continue to agree with those who believe the official Church statements have not endorsed this amendment to the exclusion of another approach of “an” amendment on the subject.

  78. Eric James Stone on June 5, 2006 at 5:37 pm

    Nate,

    > First, it provides not only a federal definition of marriage but a constitutional definition. It thereby
    > explicitly commits the definition of marriage to the sole interpretation of the federal courts.

    Umm, no it doesn’t. State courts have the power to interpret the federal constitution, although they do not have the power to interpret it contrary to binding precedent. (So, for example, a state supreme court is not required to use an interpretation promulgated by a federal district court, but is bound by the interpretation of the U.S. Supreme Court.)

    > By constitutionalizing the definition of marriage, it potentially creates a constitutional hook with
    > which the federal courts could, if they were so inclined, rewrite marriage law as a matter of
    > constitutional adjudication.

    And since the federal courts could, if they were so inclined, rewrite marriage law as a matter of
    constitutional adjudication even without the “hook” provided by the FMA, this is a red herring.

    > Fourth, the amendment makes no effort to address the question of full faith and credit. For
    > example, there is nothing in this amendment that would keep the U.S. Supreme Court from ruling
    > that all states are required by the Full Faith and Credit Clause of the constitution to grant full
    > recognition to the same-sex marriages of Massachusetts. Furthermore, to the extent that
    > Congress’s ability to legislate in this area with statutes like Defense of Marriage Act is in doubt,
    > this amendment does nothing to insure that Congress if free to do so.

    Let me get this straight: you’re trying to argue that this amendment would do nothing to prevent the U.S. Supreme Court from requiring states to grant full recognition to same-sex marriages performed in Massachusetts. By Constitutional definition under the amendment, that means granting full recognition to same-sex unions of a man and a woman performed in Massachusetts. Since I believe all same-sex unions in Massachusetts consist of either a man and a man, or a woman and a woman, I don’t think there’s much of a problem.

  79. Frank McIntyre on June 5, 2006 at 5:53 pm

    Julie,

    I am sure someone or two in authority saw the article. I am perfectly willing to believe that somebody made a mistake. But that pails in comparison to the unanimous declarations on the gay marriage we now have. As I said above, I have no trouble believing that Elder Oaks could cogently explain his position on state vs. federal rights.

  80. Julie M. Smith on June 5, 2006 at 6:50 pm

    Frank, I’m not arguing that we should toss the latest FP statement out on its ear because of an Ensign article written when most bloggers were still in underoos. But I think the contrast between the two has some implications of its own (mostly concerning how we overread every jot and tittle in the Ensign). I would like to hear Elder Oaks explain his position and, like you, I’m sure he could do it cogently.

  81. not ophelia on June 5, 2006 at 7:26 pm

    Elder Oaks is a lawyer. Lawyers argue the position that is most favorable to their client. And I’m sure Elder Oaks [as an excellent lawyer] could argue cogent positions for both sides.

    My legal friends tell me this is a danger of learning to think ‘like a lawyer’ — i.e. you can take the available facts and come up with a really good argument no matter what side you end up on. A little scary, really.

    N.O.

  82. Ben H on June 6, 2006 at 12:53 am

    It’s not just tax status that would be threatened for religious organizations if they found themselves on the wrong side of laws enshrining same-sex “marriage”. According to Maggie Gallagher, Catholic Charities of Boston was going to lose its license for non-compliance with state non-discrimination laws. Thus the threat seems to be quite real that organizations would be simply shut down for refusing to acknowledge gay marriage. Help me out, lawyers, but I would think schools need licenses too.

  83. MikeInWeHo on June 6, 2006 at 2:04 am

    The MA non-discrimination laws that impacted Catholic Charities pre-date the gay marriage debate. They list race, religion, marital status, sexual orientation, etc, as prohibited reasons for discrimination in public accommodation, employment, etc. From the perspective of MA law, Catholic Charities’ refusal to allow gays to adopt is no different than if they refused Blacks or Mormons to adopt. This is getting conflated with the marriage debate. I will concede, however, that anti-discrimination laws which prohibit discrimination on the basis of sexual orientation make it much more difficult to oppose SSM. Try to oppose existing anti-discrimination laws in MA, though, and see how far you get.

    Once gay people are acknowledged by the majority of a population as a legitimate class, the Fat Lady has sung.

  84. Frank McIntyre on June 6, 2006 at 8:05 am

    “mostly concerning how we overread every jot and tittle in the Ensign”

    Indeed, and this sounds suspiciously like my argument that Ensign writers are not infallible.

  85. Stephen M (Ethesis) on June 6, 2006 at 8:08 am

    Catholic Charities of Boston made the announcement March 10: It was getting out of the adoption business. “We have encountered a dilemma we cannot resolve. … The issue is adoption to same-sex couples.”

    [Click image for a larger version] BRAD HOLLAND/Special Contributor
    BRAD HOLLAND/Special Contributor

    It was shocking news. Catholic Charities of Boston, one of the nation’s oldest adoption agencies, had long specialized in finding good homes for hard-to-place kids. Marylou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children, said simply, “This is a tragedy for kids.”

    …snip…

    This March, then, unexpectedly, a mere two years after the introduction of gay marriage in America, a number of latent concerns about the impact of this innovation on religious freedom ceased to be theoretical. How could Adam and Steve’s marriage possibly hurt anyone else? When religious-right leaders prophesy negative consequences from gay marriage, they are often seen as overwrought. The First Amendment, we are told, will protect religious groups from persecution for their views about marriage.

    So who is right? Is the fate of Catholic Charities of Boston an aberration or a sign of things to come?

    I put the question to Anthony Picarello, president and general counsel of the Becket Fund for Religious Liberty. The Becket Fund is widely recognized as one of the best religious liberty law firms and the only one that defends the religious liberty of all faith groups.

    Just how serious are the coming conflicts over religious liberty stemming from gay marriage?

    “The impact will be severe and pervasive,” Mr. Picarello says flatly. “This is going to affect every aspect of church-state relations.”

    That seems to be part of the concern. Is it justified? Does it obscure other issues?

    By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Mr. Kmiec regards as inconceivable already has happened. They have less trouble imagining that people and groups who oppose gay marriage soon will be treated by society and the law the way we treat racists because that’s pretty close to the world in which they live now.

    Of all the scholars who attended, perhaps the most surprising is Chai Feldblum. She is a Georgetown law professor who is highly sought after on civil rights issues, especially gay civil rights. She’d been thinking through the moral implications of nondiscrimination rules in the law, a lonely undertaking for a gay rights advocate.

    “Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad,” Ms. Feldblum points out. In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say, ‘The only question is can they type,’ even if they can type really quickly.”

    Ms. Feldblum made time for this particular conference in part because she was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.

    Which does obscure the question of whether or not that should be the result. It is very possible that the moral choice might be one we do not expect. [note I cited to the article at 7 vs. at 77 ... if you guys would only read the Dallas Morning News instead of holding out for Chicago to say the same thing ;) ]

    Anyway, it appears the amendment is a complete failure.

  86. Mark B. on June 6, 2006 at 9:39 am

    Please note that the Mark Butler who posted above is not Mark B. I haven’t read his comments, and don’t know whether I agree with them, but I would like to clarify that he and I are two different persons.

  87. Mark Butler on June 6, 2006 at 10:43 am

    Mark B., I mentioned that for the benefit of the unaware, in #33, particularly because this was a legal thread.

  88. Scott H. on June 6, 2006 at 11:17 am

    “I know the church feels strongly about this, and they apparently don’t care that they are being used to score political points. ”

    I think that the church’s support of this ammendment is also about scoring points – among the Christian Evangelicals it desperately seeks the approval of.

    Shouldn’t the church be worried that by creating a constitution amendment defining marriage as between “one” man and “one” woman, that it will be all the more difficult to eventually reinstate polygamy as part of the restitution of all things?

  89. Seth R. on June 6, 2006 at 11:28 am

    Scott, I wouldn’t dismiss the possibility that desire to reach out to other Christian faiths partly motivated this decision.

    I’m sure Elder Nelson is very pleased to be making new allies for the LDS Church and finding points of commonality with other faiths (an udeniable emphasis of the Hinckley Presidency). We all like to make new friends, whatever the context.

    But I’d hesitate to declare that “making nice with the Evangelicals” was the sole motivation here, or even the dominant motivation. I think they also really believe in the pro-Amendment position.

    The only question I have is whether my commitment to my faith requires that I join the brethren in support of this Amendment in Congress, regardless of my own contrary views.

  90. Mark B. on June 6, 2006 at 2:01 pm

    Ok, thanks, Mark Butler. I didn’t read the whole thread.

  91. John Mansfield on June 6, 2006 at 2:50 pm

    These questions of federalism are interesting. Is there anyone who supported the 1996 Defense of Marriage Act who is opposed to this Marriage Protection Amendment? Has the DOMA had any legal effect over the last decade?

  92. John Mansfield on June 6, 2006 at 3:10 pm

    An answer to one part of my own question: DOMA passed with 85 yes votes in the Senate.

  93. samdb on June 6, 2006 at 3:14 pm

    John (91),
    One effect of DOMA is that, for federal income tax purposes, a married same-sex couple isn’t eligible for tax provisions for married couples. Otherwise, though, I don’t know if it’s had any effect.

  94. Nate Oman on June 6, 2006 at 3:43 pm

    Sorry that I haven’t been particpating in this thread. I am in the throes of moving. One quick point. Kevin is, I think, write that my analysis about state statutory provisions and SSM is off. That is what I get for writing quickly. I do think that a state court judge could still mandate same sex civil unions on the basis of statutory language. (Provided that such unions are constitutional under this amendment, which is unclear.)

    Eric: If a state has same sex civil unions, I don’t see that this amendment directly addresses the issue of full faith and credit for such unions. State courts are bound by the U.S. Supreme Court when interpreting the U.S Constitution, so yes, ultimately it is a quesiton for the federal courts. Finally, while there is a sense in which court always could rewrite marriage law by constitutional adjudication, there is a differnece between making them fight for it, and inviting them to do it.

    Bottom line, it is a shoddy bit of legislative drafting.

  95. Eric James Stone on June 6, 2006 at 4:23 pm

    Nate,

    > If a state has same sex civil unions, I don’t see that this amendment directly addresses the issue
    > of full faith and credit for such unions.

    In your entire paragraph about full faith and credit, you did not mention civil unions once. Instead, you specifically said that the amendment would not prevent the U.S. Supreme Court from requiring states to recognize Massachusetts same-sex marriages.

    > State courts are bound by the U.S. Supreme Court when interpreting the U.S Constitution, so yes,
    > ultimately it is a quesiton for the federal courts.

    I don’t deny (in fact, I clearly stated) that the U.S. Supreme Court would be the ultimate authority on the Constitutional definition of marriage. But, as I’m sure you know, the U.S. Supreme Court does not always decide everything that it potentially could decide, thus leaving interpretational leeway for lower courts — including state courts. (For example, the Supreme Court may allow a lower court decision to stand by denying cert., an action that has no precedential value, but which leaves the lower court’s interpretation in place in that jurisdiction.) Thus, your original claim that the amendment “explicitly commits the definition of marriage to the sole interpretation of the federal courts” is incorrect — unless by “federal courts” you meant only the Supreme Court, and you assume that every issue regarding the definition will be decided by the Supreme Court.

    Bottom line, Nate, I’d say that’s a shoddy bit of post drafting.

  96. Stephen M (Ethesis) on June 6, 2006 at 7:29 pm

    One effect of DOMA is that, for federal income tax purposes, a married same-sex couple isn’t eligible for tax provisions for married couples. Otherwise, though, I don’t know if it’s had any effect.

    That seems wrong.

    I’m not disagreeing that it is the law, just that is a result that doesn’t seem fair.

  97. Adam Greenwood on June 6, 2006 at 7:44 pm

    “Bottom line, Nate, I’d say that’s a shoddy bit of post drafting. ”

    True, but posts are a little less important than constitutional amendments. The real objection Nate O. doesn’t deal with is that (1) no provision that has the sort of lengthy, complex language that would give Nate O. the extreme precision he desires is passable and (2) the rest of the Constitution is written in the same kind of general language as the Marriage protection Amendment.

  98. Julie M. Smith on June 6, 2006 at 7:48 pm

    Nate, I realize you are moving, but I really wanna know:

    ‘And, the big picture: over at BCC, you argued cogently concerning the need to follow the prophet on this matter. But the apparent conclusion of this post is that the amendment is not such a hot idea. Care to explain?”

  99. Adam Greenwood on June 6, 2006 at 8:12 pm

    Julie M. Smith,

    If you read carefully what he said over at BCC, you’ll find that he wasn’t planning on writing to his Senators.

  100. Julie M. Smith on June 6, 2006 at 8:21 pm

    Adam,

    I don’t think that’s the issue, however. He called Kevin Barney on the carpet for not sustaining the prophet when push comes to shove, so I’m looking for him to spell out how the position he takes in this post (and: the publication of this post) fits into (or doesn’t) his definition of sustaining the prophet.

  101. Nate Oman on June 6, 2006 at 9:38 pm

    “Bottom line, Nate, I’d say that’s a shoddy bit of post drafting. ”

    Yes.

  102. Adam Greenwood on June 6, 2006 at 9:58 pm

    I’m interested too, Julie Smith. Possible ways one could post what Nate O. posted and still sustain the prophets:

    –the prophets haven’t told us that this is the best possible marriage amendment, they’ve just asked us to support it. One can still discuss its flaws while thinking that, on the whole, its better than nothing. This would be more convincing if explicitly stated, however.

    –legal analysis isn’t criticism, per se. It just shows what the amendment likely does or does not do. This is a first step to understanding what it is the prophets want or think important.

    –this analysis is what Nate O. thinks in the absence of prophetic counsel. This would be convincing if explicitly stated, esp. if Nate O. identified areas where he would be inclined to adjust his judgment based on the prophetic instruction

    –while sustaining the prophets requires supporting the amendment, it does not require believing that the prophets have exact knowledge of the ins and outs of this particular amendment. It might be useful to them and to Mormons generally to know what some of the problems with the amendment are, so that they can influence the language of future amendments. This would be more convincing if it were done after the amendment had already failed, however, or if some kind of support were explicitly indicated. But maybe Nate O.’s participation in the BCC thread is taken to be the explicit support?

  103. Nate Oman on June 6, 2006 at 10:02 pm

    Julie: I don’t think that I was calling Kevin Barney on the carpet about anything. I was simply trying to flag the issue of prophetic authority, which I think tends to get ignored as soon as we decide that we disagree with the prophet. Here are my conclusions thus far:

    1. I think that sustaining and following the prophet ought to involve sometimes following the prophet when one would otherwise act or believe differently.
    2. I think that there are situations in which we are justified in not following the prophet.
    3. I am not quite sure how to reconcile 1 and 2.

    Generally speaking, when I make this combination of points people get all huffy about how prophets are fallible, we have our free agency, we should be blind followers, Moutain Meadows was bad, and I am probably against the civil rights movements. In other words, a torrent of red herring.

    Right now I am thinking along something like these lines:

    I want to distinguish between statements by the prophet that are inspired and Church Doctrine. Inspiration is a matter of the action of the Holy Spirit in a particular case. Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.

    Church Doctrine, however, is a much larger network of concepts and ideas that emerge from our collective interpratation of scripture, practice, and experience.

    This gives us six different kinds of prophetic utterances:

    P1. Inspired, accords with CD.
    P2. Uninspired, accords with CD.
    P3. Inspired, neutral as to CD.
    P4. Uninspired, neutral as to CD.
    P5. Inspired, opposes CD.
    P6. Uninspired, opposes CD.

    It seems to me that if we are really going to come up with some principled basis out of my three part quandry above (see 1, 2, 3), we will need to come up with some sort of rough ranking of authority as to the six kinds of prophetic statements. I am not quite sure about the ranking. Furthermore, placing any particular prophetic statement in one of these categories will require some combination of identifying CD (no mean task), and personal inspiration (or some other indicator of prophetic inspiration). Messy, but this is the current state of my thinking.

    Here is my conclusion: We should follow the prophet (subject to everything else that I said in this comment) and the Allard Amendment is a bad idea.

  104. Nate Oman on June 6, 2006 at 10:06 pm

    Adam: Yes.

  105. Julie M. Smith on June 6, 2006 at 10:10 pm

    Ah, Nate, thanks. That’s what I wanted.

  106. Jim F. on June 6, 2006 at 10:38 pm

    As I think others have already pointed out, but as seems often to be forgotten, it isn’t sophistry to believe that the First Presidency has not urged us to support the amendment under present consideration. They say (1) that the U. S. Senate will be voting on an amendment, (2) that they believe that marriage is strictly between men and women, (3) that they have repeatedly reaffirmed the position taken in the Proclamation on the Family, including an admonition to support measures designed to maintain and strengthen the family, and (4) that we should express ourselves on this urgent matter.

    From no combination of these does it follow that the present amendment was something we should support. A person agreeing that marriage should not be allowed between same-sex couples but not favoring this particular amendment or not favoring resolving the issue by amendment would be in harmony with the letter.

    Of course, letters to senators or anyone else on this matter will be divided into “for” and “against.” Any nuance will get lost in that division, so who knows where they would put a letter that says “I believe that, as a matter of law, marriage should be limited to the marriage of a man and a woman, but I oppose this amendment as a means of doing so.”

  107. Brad Kramer on June 6, 2006 at 10:52 pm

    A point, Jim, that I’ve tried to make on several occasions here (T&S) and elsewhere but without your eloquence or brevity.

  108. Brad Kramer on June 6, 2006 at 10:57 pm
  109. Adam Greenwood on June 6, 2006 at 11:06 pm

    “or not favoring resolving the issue by amendment would be in harmony with the letter.”

    Jim F., a person not favoring resolving the issue by amendment would be in harmony with the letter but out of harmony with prior Church statements that an amendment is needed. While some of Nate O’s objections to this particular amendment are not objections per se to any amendment of the sort the Church wants, some of them are, and certainly most of the objections that have been expressed on the Bloggernacle are. But I do agree that its not sophistry to read the letter as not absolutely requiring support for the current amendment (though I do think it requires contacting the Senators). I don’t think its the best reading, but its not sophistry. Its plausible.

  110. Kimball L. Hunt on June 7, 2006 at 8:29 am

    We of S.N.O.T.H. — Say N.O. To Hemlock — take exception to this constant denigration of our sophistry and, in general, ad hoc non- belief system.

  111. Kimball L. Hunt on June 7, 2006 at 9:24 am

    Don’t ya ALSO have partially inspired or even neutral as to inspiration?

    But — If some mechanism could be found for a person to determine such partial inspiration to be more inspired than not, I suppose for practical purposes it could be accounted for as being inspired? Or, alternately, for what’s less inspired than not, as uninspired? And, should be no way be found to weight it towards one direction or the other, for the individual to remain neutral as to the question of its inspiration then?

  112. obi-wan on June 7, 2006 at 10:57 am

    Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.

    This may possibly be the most sensible thing ever said on this blog.

  113. MikeInWeHo on June 7, 2006 at 11:07 am

    The ammendment failed to garner even a simply majority of the Senate. Vote was 49/48. Can we move on now ?

  114. Last Lemming on June 7, 2006 at 11:22 am

    Can we move on now ?

    Not yet. Now is the time for political junkies to start overanalyzing.

    Republicans picked up 5 seats in the Senate, but the FMA picks up only 1 vote in the process. So even electing Republicans doesn’t move this amendment. If I were on the other side, I would be peeing my pants in frustration.

  115. obi-wan on June 7, 2006 at 12:14 pm

    Republicans picked up 5 seats in the Senate, but the FMA picks up only 1 vote in the process. So even electing Republicans doesn’t move this amendment.

    As I keep saying (and as I said I wish the First Presidency would figure out) this is about political posturing, not about marriage or gays or anything else. The vote was on cloture, to make certain that the amendment didn’t actually come to a real vote. Unless they really want the issue to come to a head, the Senate leadership on the Republican side excuses the Senators who might take political fallout by voting in favor. There are Senators who might like to vote in favor of the actual amendment, but the whip told them they’re excused because it would come back to bite them in the fall. And there are Senators who might like to vote against the actual amendment who were told sorry, you’re in a safe race so you get to take one for the team.

    So you can’t tell all that much about who is for this and who is against this based on this vote. (Frankly, you wouldn’t be able to tell all that much about who is for this and who is against it based on an acutal up or down vote, either). That’s how legislatures work, friends.

  116. Adam Greenwood on June 7, 2006 at 12:29 pm

    Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.

    This may possibly be the most sensible thing ever said on this blog. ”

    That blog isn’t that bad.