California Judges Order Gay Marriage

May 15, 2008 | 169 comments
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California’s Court has judicially mandated gay marriage.

When the wicked rule, the people mourn.

169 Responses to California Judges Order Gay Marriage

  1. Adam Greenwood on May 15, 2008 at 2:22 pm

    Whether or not these judges are wicked in their private character I do not know. If they are anything like the rest of us, then on form they probably are, but that’s neither here nor there.

  2. Sam B. on May 15, 2008 at 2:23 pm

    Adam,
    When the wicked rule? What wicked are ruling?

    As I understand the opinion (from the first 4 or 5 pages I skimmed through—you’ve got to be kidding if you think I’ll read 100+ pages), the judges found that the California law forbidding gay marriages is unconstitutional under the California constitution. I don’t see any indication that the judges are wicked (although they may be) or, for that matter, that they are ruling.

    Unless there’s some other wicked ruler in CA that you’re aware of?

  3. paula on May 15, 2008 at 2:29 pm

    This shouldn’t be a surprise to anyone. Back when Prop 22 was passed, there were quite a few warnings that it wouldn’t hold up in court. Prop 22 was an embarassment to the church, and I hope that if the constitutional amendment is on the ballot this fall, we won’t be visibly involved in it.

  4. Marc Bohn on May 15, 2008 at 2:38 pm

    California judges, as I understand it, face referendums or elections after their appointment. It’ll be interesting to see what effect, if any, this decision has on those elections.

  5. jeff hoyt on May 15, 2008 at 2:59 pm

    When a judge imposes his will on the people of California he is a wicked ruler. That is what happened, unles you believe that he personally does not like his ruling but feels bound to interpret the state constitution in a way heretofore unconsidered in spite of his personal misgivings. If you believe that there is little hope for you to engage in informed discussion.

  6. Dan on May 15, 2008 at 3:00 pm

    Adam,

    California’s Court has NOT judicially mandated gay marriage. They simply ruled that the ban on gay marriage was unconstitutional. Those who wish to ban gay marriage must go back to the drawing board and find a way to make their desired ban constitutional. There’s no issue here about “wickedness.”

  7. Dan on May 15, 2008 at 3:02 pm

    Jeff Hoyt,

    A judge is by definition someone who imposes his will upon the people! That’s what he is paid for! He is to be one who decides one way or the other. So to say that he is wicked for doing exactly his job is just silly. You want to engage in an informed discussion but you bandy about silly definitions!

  8. Sam B. on May 15, 2008 at 3:07 pm

    Jeff,
    If the court was solely intending to impose its will on the people, it wouldn’t have justified the opinion with the lengthy, undoubtedly unwieldy opinion. The court was required to resolve a legal question, and has done so. Whether the court is right, and whether the opinion is a good one, is well outside of my area of expertise (I’m not admitted in California and, in spite of growing up there, must admit I’ve never read the California state constitution).

  9. Michael K. on May 15, 2008 at 3:14 pm

    Dan,

    A judge is by definition someone who interprets the constitution and previous case law and applies it to the current case. There is no “imposing will” involved, although personal prejudices definitely play a part in some cases.

    The courts here did what they thought was the right thing, even though the church would tell you that the effect of their decision allows a bad moral standard to propagate. The political extremists on both sides of the aisle will say that either the court was legislating from the bench, or it didn’t go far enough. Either way, the only way same-sex marriage will be challenged in California is either through state constitutional amendment, or through federal statute or U.S. Constitutional amendment.

  10. CJ on May 15, 2008 at 3:16 pm

    Agreed with Paula–I hope the Church keeps its distance. I’m all for traditional marriage, but that’s a separate question from its constitutionality. I, like Sam, am unsure how this ruling–a matter of statutory interpretation–is evidence than any “wicked” individuals are “ruling”. Sure, there could be an agenda on the part of the judges that counteracts the impartiality/interpretation argument, but that, again, is more a legal question than a moral one.

  11. john f. on May 15, 2008 at 3:18 pm

    Adam, what would your analysis be in holding that in the face of a challenge of its constitutionality, California’s law prohibiting gay marriage would be constitutional?

    Also, the title of your post makes it sound like California judges are ordering people to enter into homosexual marriages, as if they are mandating that people do that rather than marry heterosexually.

    [Ed.--You're confusing 'gay marriages' with 'gay marriage.' Gay marriage is the commonly-understood shorthand for the institution.]

  12. kevinf on May 15, 2008 at 3:22 pm

    Adam, you should know that this California Supreme Court decision does not equal “judicially mandated gay marriage”, only that the existing law, as written, is not constitutional. True, that will open the doors in some municipalities that already have tried to perform gay marriages, and I expect they will start in those places soon. However, this is not a mandate that all county clerks have to start issuing marriage licenses to gay couples. That is still up to each individual entity. It does create the likelihood of legal challenges to those who don’t start issuing such licenses. I also don’t think the justices of the Court are “Wicked”, just performing their legal function. If the law is poorly constructed or written, which often happens, the advocates of such laws often create problems for themselves by so doing.

    This reminds me of the big brouhaha over the revision of the Foreign Intelligence Surveillance Act (FISA) that got so much attention last fall, with advocates of renewing the revision saying that we would have to hang up if a known terrorist made a phone call to a number in the United States. In fact that law, as written, allowed the wiretap to continue for a specified period of time to enable getting the appropriate warrants to continue with a domestic monitoring program, and in fact the FISA court had a 97% track record of approving those requests.

    It’s easy to take what appears to be a setback and make it look like an imminent disaster, when that is not the reality. Expect another round of legal challenges, another attempt at rewriting the current law and getting it passed, and a number of gay marriages to take place in the meantime. I understand why some feel strongly about this, but this is not likely the latest sign of the apocalypse, and should have zero impact on the church.

  13. Martin Willey on May 15, 2008 at 3:22 pm

    “Judicially mandated”?

  14. JrL on May 15, 2008 at 3:24 pm

    Dan, you’re right that the court “has NOT judicially mandated gay marriage.” It has simply said that if the state is going to give state sanction to opposite-sex marriage, it must also do the same for same-sex marriage. So yes, the legislature has a choice: it can eliminate state recognition of opposite-sex marriage. Is that cure worse than the disease?

  15. Dan on May 15, 2008 at 3:26 pm

    JrL,

    So yes, the legislature has a choice: it can eliminate state recognition of opposite-sex marriage. Is that cure worse than the disease?

    That’s a wonderful idea, frankly. Get the state out of marriages. Brilliant, actually. I’m all for it.

  16. Kaimi Wenger on May 15, 2008 at 3:26 pm

    Michael K writes,

    “Either way, the only way same-sex marriage will be challenged in California is either through state constitutional amendment, or through federal statute or U.S. Constitutional amendment.”

    As a legal matter, that’s incorrect. The ruling was based on the state constitution. As such, the U.S. Supreme Court does not have review.

    Dan writes,

    “A judge is by definition someone who imposes his will upon the people! That’s what he is paid for! ”

    Not always.

    But in the case of a constitutional claim, yes. A constitutional claim, by nature, alleges that the state (through some legitimately passed law) is violating constitutional rights. Thus, those claims are inherently countermajoritarian.

  17. jeff hoyt on May 15, 2008 at 3:30 pm

    Dan;

    A judges job is not to impose his will on the people, but to impose the will of the people (as they are represented by legislatures) on the people. My point is – I suspect he was less interested in the will of those that drafted the state constitution than in advancing his version of social justice. My first sentence was clumsily worded. I meant that the judge was acting as a “ruler” and that what he was advancing is wickedness.

  18. Hayes on May 15, 2008 at 3:32 pm

    I don’t get all worked up about the same sex marriage thing (I think the states should only do civil unions, let the churches sanctify marriage), but I disagree with these judicial fiats. AND, they applied STRICT SCRUTINY for homosexuals, stating that they are a suspect class.

    REALLY?!?!?!

    So, are their characteristics immutable? Do they share a history of discrimination on par with blacks? Are they politically impotent? Insular minority? What merits strict scrutiny from the courts?

    And, now they have just handed an election issue to the GOP.

  19. Hayes on May 15, 2008 at 3:33 pm

    I don’t get all worked up about the same sex marriage thing (I think the states should only do civil unions, let the churches sanctify marriage), but I disagree with these judicial fiats. AND, they applied STRICT SCRUTINY for homosexuals, stating that they are a suspect class.

    REALLY?!?!?!

    So, are their characteristics immutable? Do they share a history of discrimination on par with blacks? Are they politically impotent? Insular minority? What merits strict scrutiny from the courts?

    And, now they have just handed an election issue to the GOP.

  20. Jon on May 15, 2008 at 3:34 pm

    Also, if Prop. 22 had not passed, the judges would not have had this issue before them. This is not “legislating from the bench”–which I’ve always thought was such a lame phrase that people typically use when they feel the court did not agree with them.

  21. bbell on May 15, 2008 at 3:35 pm

    let the fun begin,

    I see it as a sign of the times.

    I predict that the LDS Church will join with the Catholics and others in an effort to amend the CA Constitution like with Prop 22.

    This will also become an issue in the Presidential election like it was in 04

  22. Dan on May 15, 2008 at 3:35 pm

    Jeff,

    No, it is not the job of the judge to impose the will of the people on the people, because the people put up crazy laws that are against the original designs of the Constitution and on common law practices that the United States favors (over civil laws). A judge is paid to make a judgment based on the original intent of the Constitution, the intent of the law in question, and the established practice, or change that occurs through common law practice. A judge is supposed to be aside from the people, to be able to make an impartial judgment. The people are emotional and passionate, lacking much reason, especially in such emotionally charged cases as these. I would never want Adam Greenwood to be my judge. Judging solely by this post here, he cannot hold back his own emotions to judge a situation dispassionately and solely by the merits of the case. I would never want a Michael Moore to be my judge. Both are in “the people.” Both are not trained to judge dispassionately.

  23. Michael K. on May 15, 2008 at 3:35 pm

    Kaimi writes,

    “The ruling was based on the state constitution. As such, the U.S. Supreme Court does not have review.”

    According to the supremacy clause, the U.S. Constitution trumps all state laws. Romer v. Evans demonstrated this, as the USSC overturned a state constitutional amendment in Colorado. Certainly, if a state constitutional amendment can be reviewed, then a ruling on the existing constitution can be as well.

  24. Martin Willey on May 15, 2008 at 3:35 pm

    Dan: Is the will of the people reflected in the California state consitution or the statute being tested, or both? It seems to me that the Court was analyzing two expressions of the people’s will, apparently finding them inconsistent. It went, as it should, with the constitution, the higher expression.

  25. Martin Willey on May 15, 2008 at 3:37 pm

    Jeff: Is the California state constitution the expression of the people’s will, or the statute being tested? Or both? It seems to me that the Court was analyzing two expressions of the people’s will, apparently finding them inconsistent. And so, appropriatelay, it went with the constitution as the higher expression of the people’s will.

  26. Eugene V. Debs on May 15, 2008 at 3:47 pm

    This decision will be a really good issue for the presidential election this fall. The economy is so strong, the war is over and our veterans are having trouble storing all the roses that the liberated Iraqi people gave them, and I just bought a Hummer H1 because gas prices are so low. I was wondering what the candidates would talk about. Good thing that those judicial legislators in California have just handed McCain his keys to the Whie House.

  27. Kaimi Wenger on May 15, 2008 at 3:48 pm

    Michael K.,

    It’s correct that if the U.S. Supreme Court finds a Federal constitutional violation, the decision could be reversed.

    It seems highly unlikely that that would happen, here. What U.S. Constitutional provision is at issue?

    Absent a federal constitutional claim, the state court has the last word as to the meaning of the state constitution. The U.S. Supreme Court will not review a Cal Sup Ct decision as to the meaning of the Cal constitution.

  28. fifthgen on May 15, 2008 at 3:51 pm

    Josh: I have always liked, “Judge not, that ye be not judged,” but that seemed a little obvious here.

  29. Josh on May 15, 2008 at 3:53 pm

    If people object to Gay Marriage then they should not get one. I am puzzled as to how exactly gay marriage denigrates the sanctity of heterosexual marriage.

  30. Kaimi Wenger on May 15, 2008 at 3:57 pm

    Amen, Josh.

  31. kevinf on May 15, 2008 at 3:58 pm

    Josh, I’ve wondered about the same thing, even though I totally endorse the LOC. If anything, we ought to look at the prospect of gay couples entering into a marriage with at least the same level of commitment as most US civil marriages as probably a positive thing. I don’t see that the church is threatened, nor my marriage threatened, by this.

  32. Raymond Takashi Swenson on May 15, 2008 at 4:03 pm

    I scanned over the majority opinion (about 140 pages) and read the two dissents. The three dissenting judges agreed that the 4 member majority is simply reading its own prejudices into the California state constitution. There is no explicit language in that document that specifically says that homosexuality cannot be considered in law, or that there is an absolute right of any person to marry anyone else (the majority specifically asserted that its ruling does not serve as a precedent for incestuous or polygamous marriages, but their rationale for the distinction–the rejection of such marriages by the people of California–applies equally to homosexual marriage).

    The majority argued that (a) even though the majority of California voters specificvally voted to prohibit gay marriage and (b) the legislature has not passed any laws to specifically authorize gay marriage, the fact that the legislature has passed a Domestic Partners Act that gives homosexual couples virtually all the legal rights of married couples is a de facto recognition by the legislature that homosexual marriage is appropriate, and therefore it is a right protected by the state constitution.

    The dissenting justices pointed out that the majority is acting outside its own constitutional authority and creating what is clearly a new “constitutional right” out of whole cloth, without precedent in California constitutional law, and specifically contrary to the explicit intent and understanding of the constitution by both the legislature and the voters in enacting the whole complex of laws that specifically address the topic.

    One thing this decision does is warn other states that they cannot allow any kind of “domestic partner” law to take effect, because it will be seized on by advocates of gay marriage in state courts to become an official endorsement of a view that the state’s constitution recognizes gay marriage. A state cannot go part way to gay marriage and hold the line.

    The city of San Francisco was already issuing marriage licenses to gay couples despite the clear illegality of them under the state initiative passed in 2000 by voters. It will immediately resume doing so.

    The next step will be that gay couples in Utah and other states will get married in San Francisco and then demand that state and local governments in Utah recognize their marriage as valid. Any resistance will result in litigation, which will tie up every state in the union (except for Massachusetts and California) in lawsuits.

    I think one of the possible outcomes of this is that John McCain is going to have to get off the fence about a Federal marriage amendment and recognize that the Federal government cannot avoid getting involved in the issue, because marriage is an interstate matter involving people moving to other states and people wanting to get divorced in other states and making child custody and property and support claims in other states. Senator Bennett is going to have to revisit the issue too. His opposition to a Federal constitutional amendment killed it last time around.

    Depending on how it plays out, this could be a major issue in the elections this Fall. But if the Republican Party refuses to take a stand on the issue nationally, under the lead of McCain, it is going to lose the support of its normal constituencies and will be relegated to another long term position of minority power because it does not stand for an alternative to the “progressive” agenda.

    Because there are hundreds of thousands of Mormons in California, this is going to have much larger consequences for the Church than the Massachusetts decision did. The tendency of all pro-homosexual legislation in California is to punish anyone that does not support the legislation. I fully expect that homosexual activitists will look for ways to punish churches that hold fast against endorsement of homosexuality, and attack their tax exemption as charitable organizations, both for property taxes and income taxes. Rather than settling anything, this decision will be like Roe v. Wade and create perpetual woulds of lawsuits that attempt to force churches and their members to accept and endorse behavior that is morally objectionable, with little support from the courts for the right of religious freedom on such issues.

    And the comment is correct that there will clearly be a movement to recall the members of the Supreme Court majority at the next opportunity. After all, since this is a matter of them abusing their authority, what remedy do the citizens have other than that?

    Personally, I think this issue should be the basis for a broader based constitutional amendment beyond one merely reinstating normal marriage. The abuse by courts of their authority to interpret constitutions should be remedied by the ability of Congress and legislatures to overrule findings of unconstitutionality by a specific legislative majority. Courts are just made of judges who are (usually) lawyers. They are not inherently wiser in judgment than the majority of the people. If that were so, we wouldn’t have elections. We would just let judges decide everything.

  33. Kaimi Wenger on May 15, 2008 at 4:09 pm

    Raymond,

    The majority should be able to overrule findings of unconstitutionality?

    That guts the purpose of constitutionality review.

    You only _get_ there if the majority is _already_ trampling on rights.

    I.e., majority passes a law, “Separate but equal.”

    Court says, “sorry, that’s unconstitutional.”

    You think it’s a good idea to give it back to the majority, and ask — what? “Did you really mean it?”

    Your approach would have meant no Brown v Board. (And probably no Loving v. Virginia.) I don’t see that as a good thing. The whole reason to have constitutionality review is that we don’t _trust_ majorities to respect the rights of minorities.

  34. Adam Greenwood on May 15, 2008 at 4:10 pm

    And I’m puzzled while people who purport to accept the Church’s view on homosexuality and the Proclamation on the Family, which views marriage as essentially a man/woman institution, are so eager to embrace gay marriage, especially when imposed by judges.

    If people object to cussing, they shouldn’t cuss. If people object to necrophilia, they shouldn’t cruise in mortuaries. If people object to pornographic billboards they should avert their eyes. Etc.

    The gay marriage movement, especially in California where civil unions already provided the legal rights of marriage, is fundamentally about getting a societal stamp of approval on gay relationships as legitimate and praiseworthy. I and most other right-thinking people don’t want them legitimized and validated, even if we are willing to tolerate them. So we oppose gay marriage. And like most people, I object to courts abusing their powers to enact their social agenda. This is not hard to understand except among those precincts of Mormonism which take their cues from bobo liberalism.

  35. Kaimi Wenger on May 15, 2008 at 4:10 pm

    In other words, if you can just kick it back to the majority for an override, there’s no purpose to having the constitution / Bill of Rights in the first place. Just go straight majority for everything. There’s no role there for the constitution.

  36. Kaimi Wenger on May 15, 2008 at 4:13 pm

    “boobouise”?

  37. Dan on May 15, 2008 at 4:19 pm

    Raymond,

    Does America use a common law practice in terms of the judicial system or a civil law practice? From my understanding of common law practice, many of the legal standards are created by judges over the years, decades, and centuries of practice and settings of precedences. Is not what we are seeing the natural progression of common law practice? The refinement of what our Constitution and various laws actually mean? The question that should arise from a situation like this one isn’t whether or not it is wrong for gays and lesbians to marry, but whether or not the state should create a ban on such a union. Based on the way the Constitution of California was written, these judges found that the state could not set such a ban. I have no problem with such a ruling. What that means is that those who wish to refine the original Constitution must simply go back to the drawing board and try again. The problem, of course is that once a precedent has been set, it is very hard to overturn it, especially right away.

    Maybe that will give us, as a people, the time to take everything into account. Is it really detrimental to our society for members of the same sex to have similar legal rights as heterosexuals? Should we be creating second class citizenships for certain members of our society for something they don’t have control over? Is that fair? Is that right? We call it a “sin,” but if they have no choice in their expressions of love for members of the same sex, how can it be a sin? Is not a sin a matter of choice?

  38. jjohnsen on May 15, 2008 at 4:23 pm

    You don’t understand Josh, they’ve mandated gay marriage. If you’re married to a woman right now, you’ll be forced to separate so a gay man can marry you.

    I to am trying to figure out how gay people getting married affects me in a negative way.

  39. Dan on May 15, 2008 at 4:24 pm

    Adam,

    #34,

    But it is not imposed by judges. The judges here ruled that the ban on same sex marriages was unconstitutional. They did not impose gay marriages on California. Why can you not see this?

  40. Adam Greenwood on May 15, 2008 at 4:24 pm

    I meant ‘bobo,’ KW. Thanks.

  41. John C. on May 15, 2008 at 4:27 pm

    Sorry, should have read comments before posting. I see that my point was well made before me.

  42. Adam Greenwood on May 15, 2008 at 4:27 pm

    KW,
    I’m mostly on your side of the argument, but you’re exaggerating. Under RTS’ model, a bill of rights serves three purposes:
    (1) It makes rights “violations” more difficult, because they have to happen twice to be effective.
    (2) It becomes part of the oath that officials are duty-bound to observe.
    (3) It becomes (as Thomas Jefferson pointed out) a standard which helps to form the political judgment of the people and helps them to hold their rulers accountable.

  43. Marc Bohn on May 15, 2008 at 4:28 pm

    Raymond – Uhh… How exactly did Senator Bennett’s “opposition” to a Federal constitutional amendment “kill” it last time around?

    (1) He voted FOR cloture… which means he voted to PROCEED with consideration.

    (2) Even if he HAD opposed it, the vote would ultimately have needed SIXTY-SEVEN votes to pass if cloture was invoked… meaning it fell eighteen votes short. No single Senator can be accused of killing the amendment.

  44. kevinf on May 15, 2008 at 4:32 pm

    I googled and wiki’d “boobouise”, and came up with “nadathingie”.

    [See the comment several comments prior: http://www.timesandseasons.org/?p=4545#comment-263067

    Adam, et al, I understand and respect the concern about the proclamation on the family, and I certainly understand and teach the law of chastity. I also feel for the MikeInWo’s of the world who are stuck straddling two seemingly diametrically opposed worlds, including the parents of two of the YM that I worked with a few years back that have same-gender attraction issues. I also have had discussions with a bishop in a singles ward where he had to face this issue head on with several of the single adults in his congregation, some of which were successfully living a celibate lifestyle, and others who were not.

    I wish it was a cut and dry issue, but I seen nuances underscored with subtleties on both sides. I agree with Kaimi about the legal issues involved, and repeat that I don’t see this as a threat to the church or my marriage either.

  45. John Mansfield on May 15, 2008 at 4:34 pm

    As someone who canvassed my neighborhood to promote Prop. 22 and was part of the 3/5 of California voters who passed the thing, I’m irritated at seeing my work undone. I’m also sick of the liars who on one hand fight constitutional amendments to disallow homosexuals marriage to one another by saying that there are already laws that prohibit that kind of thing and the other fight to destroy those laws. And note: from what I’m reading of this decision, the provision of homosexual civil unions was a factor in deciding that Prop. 22 was unconstitutional.

    My prediction: this is the high water mark for this movement.

  46. Adam Greenwood on May 15, 2008 at 4:39 pm

    Do you really see nuances and subtleties on *both* sides? I don’t see any evidence of that. For one, its hard to see how a person who some understanding of the case for traditional marriage would make threats to his particular marriage the touchstone of whether upheaving the institution of marriage was a good idea or not.

  47. Adam Greenwood on May 15, 2008 at 4:43 pm

    Maybe, John Mansfield. But the majority are apathetic unless they are personally threated (see Kevinf.’s comments, eg.) and the minority are determined and endowed with talent and funds, plus they have countermajoritarian institutions on their side.

  48. jeff hoyt on May 15, 2008 at 4:48 pm

    Dan;

    By referring to imposing the will of “the people on the people” I meant the constitution, as it was crafted to reflect the will of the people. Again, does anyone think there is any chance the judges were acting against their personal convictions? And does anyone doubt for a second that the drafters of the constitution did not intend this result?

    Adam;

    I am equally puzzled. And you are exatly correct that this is about a quest for societal approval, as though that will somehow end the unhappiness that inevitably accompanies rejection of heavenly fathers plan.

  49. Dan on May 15, 2008 at 4:56 pm

    Jeff,

    I don’t know. You tell me. Can you cite for me their “personal convictions” on this issue? If you cannot, then you cannot claim that they are going by their “personal convictions” but by how they judge the Constitution to mean in this particular case.

  50. John Mansfield on May 15, 2008 at 5:02 pm

    Adam Greenwood, my thought about the high water mark is based on two factors. The first is that homosexuals are a miniscule group that directly affect hardly anyone. They’re all over the internet, of course, but I go years at a stretch without dealing with any. (Yeah, yeah, I know: there’s some invisible army of homosexuals all over the place that I just can’t see.) The battles over homosexual causes are fought mostly between heterosexuals out to make a statement. Those out to display their transgressive edginess or liberal solidarity or whatever attracts them to homosexual causes will tire of this group and go on to something else. Notice how breast cancer has displaced AIDS as the trendy disease with an obliquely sexy aspect.

    The second factor is that this ruling shows that no partial concessions, even those as great as California’s, will satisfy the homosexual cause, and every gain of the cause feeds the cause’s next stage. I think it is a wake-up call for the complacent.

  51. jeff hoyt on May 15, 2008 at 5:06 pm

    Dan – I did not claim that I knew for certain what their convictions were, but I would be willing to bet a large amount on my supposition (and I believe you would as well).

  52. kevinf on May 15, 2008 at 5:22 pm

    Adam, I hardly think I am apathetic. This is primarily a discussion about the legal aspects of this decision, which really do not impact me.

    Now, if this were a discussion of the morals about this, I’m pretty conservative. I believe homsexual acts are a sin, just like premarital sex, or lying, or cheating on your taxes. I don’t think that getting into a discussion of where any of these sins rank in order of seriousness is helpful, here either (ie, stealing cookies at age 4 is a 1, and the sin against the Holy Ghost is a 10).

    I know people who are caught up in the middle of this. We had a ward member whose non-member gay partner died of AIDS, after which he wanted to get back involved with the church, before succumbing to AIDS himself a few years later. I know gays in the workplace. And you know what, most of them are pretty much just like the rest of us, with particular strengths and weaknesses, trying to find their place.

    I get the impression that there are some who feel that I should feel threatened by all of this. And I don’t. I’m not aware of an underground militia of AK47 wielding gays that are plotting the violent overthrow of our government over this. What is the imminent threat? I’ll admit to often seeing the exceptions to a lot of rules, and to some aspects of “knee-jerk liberalism” on some issues. But the California court did not “mandate gay marriage”, nor is it sign that the “wicked rule”, any more than my gripes about the Bush administration and the war in Iraq is a sign that the wicked rule.

    Neither is a part of my faith in Christ, or my commitment to the church.

    However, I did think that “Boobouise liberalism” was actually a fun made-up phrase.

    No hard feelings, Adam, I just don’t agree with you here.

  53. Latter-day Guy on May 15, 2008 at 5:24 pm

    If people object to necrophilia, they shouldn’t cruise in mortuaries.

    Truer words were never spoken, Adam. I think I’m done blogging for today, because I don’t think I’ll see that one get topped any time soon.

    [Thank you, sir. Your superb good taste does credit to us all.]

  54. Adam Greenwood on May 15, 2008 at 5:28 pm

    I’m not aware of an underground militia of AK47 wielding gays that are plotting the violent overthrow of our government over this

    If that’s the level of personal threat you have to feel before you take sides on a public policy question, ask yourself this: are you aware of an underground militia of AK47 wielding marriage defenders that is plotting the violent overthrow of our government? Is Comandante Maggie Gallagher going to put you up against the wall? Do I threaten your marriage?

  55. MikeInWeHo on May 15, 2008 at 5:35 pm

    It’s a testimony to the insularity of our various subcultures that we can each look at the current political landscape and come to such opposite conclusions about where things are headed. High water mark? Are you so sure?

    Re: 50 “I go years at a stretch without dealing with any….”

    And for that, speaking on behalf of all 100 of us, please except my deepest gratitude.

  56. Josh on May 15, 2008 at 5:36 pm

    I’m going to spend some time tonight reading the California Constitution.

    “And I’m puzzled while people who purport to accept the Church’s view on homosexuality and the Proclamation on the Family, which views marriage as essentially a man/woman institution, are so eager to embrace gay marriage, especially when imposed by judges.”

    Adam, you can do better than that, sir.

    I am not eagerly embracing gay marriage. I have read the Proclamation on the Family many times and I know the Church’s view on marriage and homosexuality. I am not going to impose what I believe on the rest of my fellow Americans. If two people of the same gender wish to make a lifelong commitment to one another then who am I to point my fingers at them and tell them that they can’t?

  57. Geoff B on May 15, 2008 at 5:42 pm

    From a historical perspective, it’s fascinating to watch how fast we are sinking into a moral quagmire on this issue. Twenty-five years ago, people warned that companies providing benefits to domestic partners would lead to civil unions. “Tolerant” people said they were exaggerating. Twenty years ago, people warned that civil unions would lead to gay marriage. “Tolerant” said they were exaggerating. Many thinking people thought civil unions were a matter of providing basic fairness to gay couples — others pointed out the slippery slope in terms of the state legitimizing homosexual partnerships. More than a decade ago, the DOMA was supported by most Democrats and Republicans. “Tolerant” people said it was an exaggerated response to a non-existent threat. Just five years ago, the Massachusetts state supreme court imposed gay marriage by judicial fiat. Many concerned people pointed out the slippery slope and said legalized bestiality, polygamy and pedophilia will be next. “Tolerant” people said the response was exaggerated. Now California has followed Massachusetts’ lead. Many people warn about the precedent — if marriage is not a one-man, one-woman institution, then what is it? How can you stop legalized polygamy if marriage can mean nothing and everything all at once? “Tolerant” people say the worry-warts are exaggerating.

    Yes, the prophets have exaggerated their concern on this issue. They have exaggerated in consistently supported a federal marriage amendment.

    And yet so many even in the Church still don’t listen. “Flaxen cords” indeed.

  58. Adam Greenwood on May 15, 2008 at 5:43 pm

    I have read the Proclamation on the Family many times and I know the Church’s view on marriage and homosexuality.

    I’m talking about more than “reading” and “knowing.”

    If two people of the same gender wish to make a lifelong commitment to one another then who am I to point my fingers at them and tell them that they can’t?

    If you don’t want to, don’t. No one’s making you. Here’s a question for you: does the law actually make it illegal, anywhere in this country, for “two people of the same gender to make a lifelong commitment to one another?” Or are you distorting the issue?

  59. Josh on May 15, 2008 at 5:43 pm

    I’m not a California Constitutional expert but Section 1 of Article 1 states:

    SECTION 1. All people are by nature free and independent and have
    inalienable rights. Among these are enjoying and defending life and
    liberty, acquiring, possessing, and protecting property, and pursuing
    and obtaining safety, happiness, and privacy.

    So the State of California by law banned gay marriage. Isn’t the law unconstitutional according to California since all people are by nature free and independent and have inalienable rights? Why should gay people not be allowed to marry while heterosexuals are allowed?

  60. Josh on May 15, 2008 at 5:50 pm

    Adam, I believe the law in question in the case is Proposition 22.

  61. Adam Greenwood on May 15, 2008 at 5:50 pm

    Josh, answer the question in #56. Put up or shut up. Please identify one state in the Union where it would be illegal for two men or two women to make a life-long commitment to each other or even to get a compliant priest or minister to ratify that commitment with a ceremony. If you can’t, please bow out.

  62. kevinf on May 15, 2008 at 5:52 pm

    Adam, I also don’t feel threatened by Maggie Gallagher, Maggie Gyllenhall, or Maggie Thatcher, AK47-wielding or not. That’s why I hate getting into these discussions with you over here. There are assumptions made, accusations thrown about, and emotions kindled with hot gasoline in these. Not often the environment for useful conversation.

    I’m through here, and will go home and hug my wife in my totally heterosexual home, talk to my kids, go to the temple, and finish writing my talk for next Sunday about the restoration of the Aaronic Priesthood. Probably wash some dishes, too, and leave my kevlar vest hanging over the dining room chair.

  63. Josh on May 15, 2008 at 5:55 pm

    Adam, Re:61

    The State of Massachusetts, for one.

  64. queuno on May 15, 2008 at 5:55 pm

    Here comes another summer exodus of California Mormons moving east! Hang onto your property values!

  65. Adam Greenwood on May 15, 2008 at 5:56 pm

    You’re probably better off there. Usually if people really have sublety or nuance or want a useful conversation, they aren’t screaming about AK 47 wielding militias.

  66. Adam Greenwood on May 15, 2008 at 5:57 pm

    Not even close, Josh. You’re out in this thread.

  67. kevinf on May 15, 2008 at 6:06 pm

    Adam, after this I’m really done. But just for fun, “underground militia of AK47 wielding gays that are plotting the violent overthrow of our government” = hyperbole. I was just trying to think of what in this whole thing would actually feel threatening.

    [Just for fun, Comandante Gallagher, etc., was also hyperbole.]

  68. TMD on May 15, 2008 at 6:13 pm

    Kaimi,Kevinf, I’m not a lawyer, and you’re a law professor, but it seems to me that you are incorrect when you say that this will have no legal ramifications for you. Does this ruling make the recognition of gay marriages a state interest? And, accordingly, does this not mean that any organization wishing to interact with the state (say, catholic charities on the issue of adoption) must alter its policies to recognize things that it would otherwise not (for theological reasons) or have to cease activity? Particularly given that for purposes of california law gays are now a ‘suspect class’? So will this not be used as a hammer against anyone who disagrees about the desirability of the gay lifestyle (i.e., who would argue that it is inconsistent with ‘the good life’ in its broadest theological and philosophical senses)?

    Dan, I think you misunderstand the decision. In the legal discussion, it describes the right to marry as a fundamental right (apparently, bounded by the numbers involved, without clear reason), then states that the state cannot constitutionally prevent same sex marriages, and cannot call them anything else, then in the says that the state must conduct and recongize them just as if they wre heterosexual marriages. I don’t know, it seems like they’re saying that any legislation that would not allow gay marriage on exactly the same terms as heterosexual marriage would be unconstitutional, not just *this* particular piece of legislation.

  69. Kristine Haglund Harris on May 15, 2008 at 6:15 pm

    “I fully expect that homosexual activitists will look for ways to punish churches that hold fast against endorsement of homosexuality, and attack their tax exemption as charitable organizations, both for property taxes and income taxes. Rather than settling anything, this decision will be like Roe v. Wade and create perpetual woulds of lawsuits that attempt to force churches and their members to accept and endorse behavior that is morally objectionable, with little support from the courts for the right of religious freedom on such issues.”

    Why would you expect that Raymond? Certainly nothing like that has happened in Massachusetts several years on–on what basis do you suppose it will be different in CA?

  70. Adam Greenwood on May 15, 2008 at 6:19 pm

    I’m vaguely remembering something about Catholic Charities not being able to do adoptions in Mass. because they wouldn’t place with gays. Is that right or am I off?

  71. Brad Kramer on May 15, 2008 at 7:01 pm

    “When the wicked rule, the people mourn.”

    “…except among those precincts of Mormonism which take their cues from bobo liberalism.”

    “Usually if people really have sublety or nuance or want a useful conversation…”

  72. Adam Greenwood on May 15, 2008 at 7:07 pm

    Random thread quotes. Fun.

    ” . . . I seen nuances underscored with subtleties on both sides . . .”
    “. . .California Mormons moving east! Hang onto . . .”
    “. . . the . . .”

  73. Ardis Parshall on May 15, 2008 at 7:13 pm

    68: Well, there’s this 2006 article from the Boston Globe … and this more detailed story from the Catholic World News.

  74. JimD on May 15, 2008 at 7:14 pm

    Kristine, Elton John recently called for the banning of organized religion because it promoted “hateful” feelings against gays. I don’t think he’s the only person who feels that way.

    Politics is the “art of the possible”. Cases like the one in California weren’t put to the courts until the time was ripe. And the time is not yet ripe to go after the socially conservative churches. For one thing, you can’t attack the Federal tax code based on the laws of one state. For another, there is still a significant (though shrinking) portion of the population that would sympathize with churches that held the line on such positions. Third, there are still a lot off people in the US who think that “freedom of religion” means something.

    The issue isn’t what will happen now, or in five years, or in ten. It’s what will happen in fifty years, or in a hundred, when social views have generally evolved to the point where people who frown on gay sex are viewed with more or less the same contempt as segregationists are now. The first amendment’s free exercise clause will be the last refuge of socially conservative churches. And judging by Texas’ willingness to remove children from homes of parents whose religion the state deems offensive, fifty years from now the free exercise clause won’t be worth the paper it’s printed on.

  75. Kristine on May 15, 2008 at 7:22 pm

    “It’s what will happen in fifty years, or in a hundred, when social views have generally evolved to the point where people who frown on gay sex are viewed with more or less the same contempt as segregationists are now.”

    I’d be ok with that.

  76. JimD on May 15, 2008 at 7:27 pm

    Brad, “Subtle” is my middle name.

  77. JimD on May 15, 2008 at 7:30 pm

    Brad and Kristine, you really have no problem with the Church’s being forced to ditch, or substantially alter, such core doctrines as celestial marriage, eternal increase, Heavenly Mother, and the deification of mankind–just so that gays can feel better about themselves?

  78. Roland on May 15, 2008 at 7:32 pm

    I’ve yet to understand how banning gay marriage would stop the spread of immoratlity in our society.

    Would not a ban on pornography be more effective?

  79. Roland on May 15, 2008 at 7:33 pm

    I’ve yet to understand how banning gay marriage would stop the spread of immorality in our society.

    Would not a ban on pornography be more effective?

  80. jeff hoyt on May 15, 2008 at 7:35 pm

    ” “It’s what will happen in fifty years, or in a hundred, when social views have generally evolved to the point where people who frown on gay sex are viewed with more or less the same contempt as segregationists are now.”

    I’d be ok with that”

    Hopefully those that claim this ruling poses no threat will reconsider.

  81. Brad Kramer on May 15, 2008 at 7:37 pm

    JimD,
    If I thought there was even a remote chance of any of that happening, I’d be concerned. Was the Church forced to endorse interracial marriage subsequent to the Civil Rights Act? Paranoid much? A handful of judges in California and a British rock star have the power not just to mandate gay marriage but to ban organized religion or force the Church “to ditch, or substantially alter, such core doctrines as celestial marriage, eternal increase, Heavenly Mother, and the deification of mankind”? Come on…

  82. JimD on May 15, 2008 at 7:41 pm

    Brad, you apparently a) do not believe that Mr. John’s sentiments are shared by a wide segment of the population, b) do not believe that the California opinion moves towards enumerating homosexuals as a protected class under the 14th amendment, or c) do not believe that enumerating homosexuals as a protected class under the 14th amendment will bolster the efforts of persons sympathizing with Mr. John to impose the penalties against the Church that Raymond has described.

    Can you explain which of the above you believe, and why?

    Thank you.

  83. Brad Kramer on May 15, 2008 at 7:42 pm

    Jeff,
    If the extent of the threat posed by this ruling is that people with conservative views on homosexuality will be less popular or feel more socially marginalized, then I hope we’ll all reconsider our assessment of it.

  84. JimD on May 15, 2008 at 7:43 pm

    Sorry, Brad–missed your 84 before I posted 86.

  85. JimD on May 15, 2008 at 7:50 pm

    Brad, re your 84: Again, in the late 60s and 70s the precedents were not in place that would allow serious action against the LDS Church for its stance on race. Nor were the sympathies of the vast majority of the country in favor of such an action.

    The question is not “did the Church receive pressure for its racial views in the 1960s and 70s”, but a) “would the Church receive pressure for those same racial views today” and b) “would the Church receive pressure for those same racial views if it were to espouse them fifty or a hundred years from now”.

    The scope of views and practices our society is willing to tolerate under the guise of “religious freedom” seems to be narrowing in our society, and I don’t see this trend reversing anytime soon.

  86. Brad Kramer on May 15, 2008 at 7:52 pm

    I have no idea how widely John’s sentiments are shared. The CA ruling has bearing on the US Constitution or its 14th amendment. I think yours and Raymond’s prognostications are outlandishly exaggerated. Any laws and/or amendments that bolstered gay rights while simultaneously threatening to substantively punish conservative churches would be wildly unpopular in the US. If such laws included explicit (if technically unnecessary) protections for conservative churches, I suspect they’d pass with considerable room to spare. The Church will feel infinitely less pressure as a result of this or any other foreseeable court ruling to change its beliefs or practices than it did in the aftermath of Reynolds or any of the antipolygamy legislation or enforcement campaigns. Do you really think that the Church was forced to “ditch, or substantially alter, such core doctrines as celestial marriage, eternal increase, Heavenly Mother, and the deification of mankind” as a result of the Manifesto? If the Church changes any of its doctrines, it will be as a result of revelation, a revelation that, regardless of external pressure, no worldly power (even the almighty homosexuals with their homosexual agenda) can force.

    Generally, when apocalyptic alarms are being sounded, the burden of proof rests with the bell ringers.

  87. Kristine on May 15, 2008 at 7:52 pm

    Jim, the Church won’t be forced to change any of its doctrines. It *might* be forced to change policies that attempt to enforce those doctrines on non-believers (as in the Catholic Charities case, in which by the way, the Church seems to have folded well before the State attempted to exert much pressure). I don’t see cause for alarm. And gays (and all sinners) feelng better about themselves–seeing themselves as potential gods, in fact–seems to me precisely what all of our doctrines aim at.

  88. jeff hoyt on May 15, 2008 at 7:55 pm

    Brad;

    Being a veteran of these battles I know personally the cost of having made public my conservative views on this issue – namely threatening phone calls, obscene phone calls, car window smashed, property vandalized, boycotting business, etc. So no, I do not feel the need to reconsider my assessment.

  89. JimD on May 15, 2008 at 8:02 pm

    Kristine –

    You don’t think there will ultimately be pressure on the Church to baptize “practicing” homosexuals, or to perform temple sealings for gay couples, or to stop teaching openly that gay sex is sinful?

  90. Brad Kramer on May 15, 2008 at 8:06 pm

    Jeff, standing up for entrenched power and the status quo can be harrowing stuff.

    Seriously, though, such actions against you are obviously indefensible. They would be indefensible against people who believed in segregation as well.

  91. Brad Kramer on May 15, 2008 at 8:08 pm

    “You don’t think there will ultimately be pressure on the Church to baptize “practicing” homosexuals, or to perform temple sealings for gay couples, or to stop teaching openly that gay sex is sinful?”

    From the state or anyone with the actual power to enforce such demands? Absolutely not.

  92. Ray on May 15, 2008 at 8:08 pm

    #92 – Jeff, do you think that is ANY different than those who espouse liberal views in extremely conservative areas? That’s not a “gays hate vocal conservatives” issue; it’s a “shallow-minded people tend to do things like that to those with whom they disagree passionately” issue. It cuts both ways equally deep – and it describes the lives of many homosexuals and blacks for decades, just to name two examples.

    JimD – Mentioning the way that the Church viewed racial issues during the 60′s and 70′s is not a good foundation on which to base your argument – especially given what Elder McConkie said after the ban was lifted and what Pres. Hinckley and others have said in the last few years. Your argument might or might not be valid, but that’s a weak foundation.

  93. Kristine on May 15, 2008 at 8:10 pm

    JimD,
    Nope. Although I’m a little scared of Elton John.

  94. Brad Kramer on May 15, 2008 at 8:11 pm

    I think that the most pressure the Church might feel if it continues to dig in its heels would be something like expelling BYU football from the NCAA or organized boycotts against BYU football games. That will definitely cost the Church a few bucks and some bad PR, but nothing more.

  95. Julie M. Smith on May 15, 2008 at 8:15 pm

    Question for lawyers: What would a new ballot initiative for CA have to do or not do to avoid the fate of Prop 22?

  96. JimD on May 15, 2008 at 8:18 pm

    Generally, when apocalyptic alarms are being sounded, the burden of proof rests with the bell ringers.

    Brad, I disagree. When you want to pilot the ship I’m riding in into uncharted waters, the burden of proof lies on you to prove to me that there are no unseen shoals or other hidden dangers in those waters.

    You seem to make the same mistake many social liberals make of assuming that once your social dreams are realized, the evolution of social norms will cease–that your ideas are the culmination of all of history; the destination to which human events have inexorably marched.

    The truth is more complicated. We don’t know what structures will be built tomorrow on the foundations we lay today. Fifty years ago the mass removal of nearly five hundred children from their parents based on the possibility that fewer than ten percent of them were in immediate danger of physical abuse because of their supposed religious beliefs would have been “wildly unpopular”. (What I’ve read of the immediate reaction to Short Creek seems to confirm this.) Today, the majority of our country barely bats an eye. After all, they’re backwards, those FLDS are.

    More to the point, the Texas action (from a family law standpoint–the criminal implications apparently get hairier) appears to be moving forward on a jurisprudential basis that is legally sound. I sincerely believe, Brad, that the FLDS represent not only our past, but our future. It scares the crap out of me. Vague assurances that it won’t be as bad as Edmunds-Tucker was are not reassuring.

    I like your idea of linking bolstered gay rights to beefed-up constitutional protections for religious exercise. I wonder why it doesn’t seem to have gotten more attention.

  97. jeff hoyt on May 15, 2008 at 8:19 pm

    “Jeff, standing up for entrenched power and the status quo can be harrowing stuff.”

    I presume this is entirely tongue in cheek, but I can assure you that my position was hardly supported by any “entrenched power” interests. Quite the opposite. I was attacked daily by the local news media, and had very few who would publicly defend me as they knew the cost. Should the citizens of California attempt to overturn these judges rulings, the Church may get involved, but it will do so knowing a high price will be paid.

  98. Brad Kramer on May 15, 2008 at 8:20 pm

    My understanding (of the non-lawyerly variety), Julie, is that if it’s an amendment to the CA State Constitution, that in itself will shield it from the fate of Prop 22.

  99. MikeInWeHo on May 15, 2008 at 8:25 pm

    If anything, gays are the ones who should be paranoid. Heck, we’re only a few years past the last sodomy laws.

    Does anybody here realize that two generations ago, American homosexuals were criminals and routinely prosecuted?

    Does anybody know this history of this struggle?

    The idea that gays are going to obtain civil marriage and then make a legal rush for the temple is just absurd. These “what if in 50 years…” arguments are just cover to promote discrimination against gays today. I’d suggest looking back 50 years first. That might help you understand us a little bit better.

  100. jeff hoyt on May 15, 2008 at 8:26 pm

    Ray #98 – I do not believe “it cuts both ways equally deep”. In fact, I do not believe it is close.

  101. JimD on May 15, 2008 at 8:26 pm

    Brad (#97), I think Reynolds illustrates the danger of trying to predict which religious practices government may and may not proscribe.

    Ray (#98) my point isn’t to defend the Church’s prior racial views, but to post a hypothetical of what government might do in response to the Church’s continued assertion of those views.

    Julie (#101), my understanding is that the new initiative would actually be an amendment to California’s constitution. Since the court’s opinion was rooted in California’s current constitution, it would become moot and the state would then be free to pass a new version of Prop 22.

  102. Brad Kramer on May 15, 2008 at 8:30 pm

    Jeff, let me get this straight (pun intended): you think that white conservative heterosexuals are more persecuted in this country that non-white liberal homos?

    I just want to clarify that this is, in fact, what you’re arguing here.

  103. Dan on May 15, 2008 at 8:38 pm

    Jeff,

    #50,

    Dan – I did not claim that I knew for certain what their convictions were, but I would be willing to bet a large amount on my supposition (and I believe you would as well).

    Actually you did. In comment #47 you state:

    Again, does anyone think there is any chance the judges were acting against their personal convictions?

    That is a strong implication that you feel these judges’ “personal convictions” were for gay marriage. So I’m calling you out. Show me the evidence. Where are your examples of their “personal convictions” in this case. If you have none, do not make the assumption that they are going on their “personal convictions” when they may not have any particular position. If you do not know, do not accuse.

  104. Raymond Takashi Swenson on May 15, 2008 at 8:42 pm

    Just to remind everyone, American constitutional law is based on written constitutions at the state and Federal levels. They are laws that are interpreted like statutes. They contain specific worlds that have specific meanings, plus interpretations that have been added to them over the years by both the courts and by legislatures and by the executives (president and governors and their agencies) who enforce them.

    Constitutions are enacted through extraordinary processes and amended through extraordinary processes so they reflect extraordinary concensus of the sovereign peoples (citizens of all the United States or of each state) who empower them. But the ultimate sovereignty resides in the people.

    The authority that courts in the United States have assumed to interpret the Federal and state constitutions is based on their authority to interpret all laws. Constitutions allocate power among the various branches of government. But note that the US Constitution does not say that Supreme Court has the final or sole power to interpret the meaning of the Constitution. The Supreme Court assumed that authority by the logical deduction that the Constitution is a law and subject to interpretation as other laws, plus it is the foundational law of the United States and therefore conflicting laws must yield. Constitutional jurisprudence at the state level has followed this pattern.

    When the US Supreme Court or a state supreme court purports to find a right in a constitution that overrides an act of lawmaking by a legislature or a citizen initiative, the normal standards of legal interpretation require that there be actual words within the document that carry that actual meaning. The US Constitution in its body contains all sorts of limits on the powers of each branch of government, as well as limits on the powers of the states (e.g. a state cannot generally prohibit import of goods from another state, nor can it lay a duty or tax on such goods). It also contains, in the Bill of Rights and the Civil War Amendments, specific limits on the power of both Federal and state government to ptoect individual citizens against the power of government. But if there is no specific language with specific meaning in a constitution that is inconsistent with an act of the legislature, then the most applicable part of the constitution is the fact that, in support of democracy, it has empowered the elected representatives of the sovereign people to make the laws.

    Indeed, the power to elect members of Congress and of state legislatures, and at the state level to enact new statutes through initiatives and referenda, are clearly expressed, fundamental rights of the people.

    When the US Supreme Court or a state supreme court decides to invalidate a statute that has been enacted throught this constitutionally-endorsed democratic process, and there is no specific language in the applicable constitution which was created by the democratic activities of the sovereign citizens, that court is denying those citizens their fundamental, constitutional right to govern themselves, and is taking power never entrusted to them by the sovereign people. As it stands right now, this is a wrong without a reasonable remedy.

    The 3 dissenting members of the California Supreme Court have stated that the 4 person majority in this case is acting without any clear authorizing language in the state constitution, and in direct contravention to the power of the legislature and the people to enact statutes through constitutional processes. The 4 person majority is violating the California constitution in the service of making a law that those 4 people prefer, without regard to the will of the majority expressed in the constitution and in legislation. (The notion that one of the commenters advanced that the California constitution guarantees individual autonomy is silly. Absolute autonomy would allow me to dispose of radioactive waste in my back yard, or to have slaves.)

    To assert that constitutions plus courts hold authority that is distinct from that of the sovereign people, and superior to their democratic ability to make law, is a tyrannical denial of democracy and the most fundamental rights of the people. Constitutions in America derive their power from the consent of the people. They are not easily changed, but we must not forget that they get their authority from the people, not from the judges on a court. And the judges on a court neither created the constitutions nor have the right to amend them.

    The notion that somehow judges are more “pure” of heart and “wise” in judgment is a myth. Judges in America have always been empowered through political activity. Unless you are politically connected with at least one of your state’s senators, your chances of being nominated to appointment as a Federal judge are zero. Whether you gain that connection through the merit of your works of legal scholarship, or through your political experience as a member of the senator’s political party, you need to have that plug in the political system.

    Part of the myth was created by the ruling of the Supreme Court in the Brown v. Board of Education case overturning school segregation. However, the only reason Brown was necessary was because the same Supreme Court fifty years earlier, in Plessy v. Ferguson, had endorsed the notion that separate accommodations that were segregated by race, in which one race told the other race where it could eat, sleep, work, learn, or travel, were somehow still “equal” before the law. That proposition is ridiculous on its face, but the US Supreme court was happy to adopt it, and took 50 years to return to a plain reading of the 14th Amendment. Even then, the Supreme Court did not apologize for its dereliction of duty in implementing the plain language of the Constitution. Rather, it claimed to rely on the sociological findings of “Brandeis Briefs” about the lack of real equality in school facilities in segregated systems, forcing racial minorities to bring even more cases of specific racial injustice rather than having a blanket ruling the by court upholding equality. Chief Justice Earl Warren was Attorney General of California at the beginning of World War II and was a loud voice demanding that American citizens of Japanese ancestry be summarily confined in prisons for the “crime” of driving while slanty-eyed. He never apologized for that either.

    When we get good decisions out of our judges, we are fortunate. And we need to do our best to entrust this power to those who understand the need for self-restraint. But we should not kid ourselves that in the members of any court resides the ultimate in virtue or intelligence, so much so that the combined judgement of the people, in this case a large majority of millions of voters, can be disregarded so summarily by three or four or five lawyers. Our popular culture loves to denigrate lawyers, but why should we think they have changed character merely by putting on a judicial robe? We need a more realistic assessment of both lawyers and judges as people who can be corrupted by power.

    As for the possibility that gay activitists in California will use this decision to attack churches that do not support gay marriage and the entire gay agenda–including indoctrination of children in the public schools that homosexual activity has no moral content–I worked as an attorney in California for five years, and have seen Catholics, who openly affirm traditional New Testament condemnation of homosexual acts as sin, barred from participation in local government in San Francisco. After the US Supreme Court affirmed the right of the Boy Scouts of America to exclude practicing homosexuals membership and leadership positions, state and local government in California has done everything it can to make the Boy Scouts outcasts in society, despite the positive force they are in helping young men avoid criminal behavior. The State Bar has openly discussed disqualifying from holding judicial office any attorney who does not denounce the Boy Scout position on homosexuality. The California Court of Appeals has invalidated the state statute authorizing home schooling, and public schools already are prohibited from giving students any information that would induce them to see homosexual activity in a less than positive light–even if it is true.

    The time is not far away when anyone who is unwilling to take an oath of full acceptance and support of the gay lifestyle will not be allowed to serve in any elected or appointed position in state or local government, or even on a jury, and once all the committed Catholics and Mormons and Evangelical Christians have no power in the government, the crunch will come down on the dissenting churches themselves.

    Gay activitists do not feel safe unless they have the upper hand of power and are able to punish even the expression of criticism of their lifestyles. This view is a core feature of the new statute governing gay and transgender activities and speech in public schools in California. Any criticism of gay lifestyles is considered “gay bashing” as a lesser form of battery, and is a basis for sanctioning any public school teacher.

    This is in spite of the fact that, at least in Calfiornia, gays have higher per capita incomes than non-gays. What California has now demonstrated is that compromise with the gay political agenda is a ratchet, because any concessions made to them in terms of domestic partner laws will just become a basis for more demands, as was the case here.

    If you look at the list of amici curiae who filed briefs on one side or the other of this case, you will find the LDS Church lined up with the Catholic and other morally conservative churches in support of the state laws, while on the side of gay marriage are the usual list of churches that have a more modish theology that doesn’t let sexual morality be a hangup.

    One of the sad aspects of this controversy is that many groups concerned with racial equality (including some I have been assoicated with) have been duped into thinking that this is no different from racial discrimination.

    In California, it is now law that any teenage boy who claims to think of himself as a transsexual must be allowed to use the girls bathrooms and showers in a high school. The right to privacy and modesty of the girls is given no weight at all. It is precisely this kind of law that is driving many parents to home schooling.

    As one of the dissenting justices noted, once you abandon long standing standards of social mores, and rule that the legislature has no authority to regulate who can be married to whom, there is only remaining now an arbitrary legal distinction between homosexual marriage and polygamous marriage. The FLDS may decide now is the right time to move to California.

  105. Brad Kramer on May 15, 2008 at 8:44 pm

    Again, does anyone think there is any chance that if these judges had upheld prop 22 based upon personal conviction rather than neutral legal reasoning that Jeff would be pitching a fit about it? I do not claim to know for certain, but I would be willing to bet a large amount on my supposition…

  106. jeff hoyt on May 15, 2008 at 8:46 pm

    Brad;

    “you think that white conservative heterosexuals are more persecuted in this country than non-white liberal homos”

    1- I never mentioned race. What is your point in mentioning it? I never said I was white.
    2- Why do you insist on using slurs? Do you presume that I do? Wouldn’t that be contrary to Church teaching?
    3- People that believe homosexuality acts are immoral can be either conservative or liberal in their overall political philosophy.
    4- I did not say “white conservative heterosexuals are more persecuted”. I said anyone who publicly takes a position against gay rights will be persecuted.
    5- I believe those that publicly take a position in favor of gay rights will face less persecution than the reverse.
    6- Ths issue is not about marriage. It is about societal approval for gays, and putting social pressure on those that do not acquiesce.

    I am happy to clarify.

  107. Dan on May 15, 2008 at 8:47 pm

    Jim,

    #77,

    Brad and Kristine, you really have no problem with the Church’s being forced to ditch, or substantially alter, such core doctrines as celestial marriage, eternal increase, Heavenly Mother, and the deification of mankind–just so that gays can feel better about themselves?

    Now why would the church, as a private institution, be forced to do this? Please lead me down this path logically.

  108. JimD on May 15, 2008 at 8:48 pm

    Mike, three generations ago–so were Mormons. So yes, I’m kinda paranoid about that. I don’t think all gays are generally out to “get” Mormonism (though some obviously are), but I do worry that the precedents established in these controversies will be used against Mormonism by other groups down the road–militant atheists, Evangelical Christians, or whoever. I realize I probably sound like a raving, paranoid lunatic–but guys, when you read the scriptures, read the quotes of church leaders, read the comments made about us on message boards all over the internet–do you really think that Edmunds-Tucker was as bad as it’s ever going to get for the Church?

    It’s great that you will not be going to jail anytime soon, Mike. It’s even better that, with a little careful planning, you and your partner contract to get the majority of rights that straight couples enjoy (inheritance, insurance, et cetera). And if your state has a civil union statute that simplifies the process and gets you Social Security benefits–fantastic! The anti-sodomy laws were unjust and stupid, and I’m glad they’re gone. (I’d rather they’d have been voted into irrelevance by the people rather than banished by judicial fiat–but oh, well.)

    But the lesson we should be re-learning is that the Constitution was supposed to protect all minority groups, however unpopular. Before we plunge headlong down this road of making darned sure that there is no “discrimination” of any kind against you and your partner, I’d kind of like to see some kind of constitutional, statutory, or judicial road map telling us just how far we’ll be travelling. Especially when (as is inevitable) your wishes and desires put you (or others like you) into conflict with other minority groups whose constitutional rights are just as valid as your own.

  109. JimD on May 15, 2008 at 8:55 pm

    Dan (#113)

    Not to be overly snarky, but . . .

    You (or those of your political persuasion) are the one telling us that our Constitution and our statutes mean whatever we want them to mean at the moment. So perhaps you can explain to me why this won’t happen if/when the Church becomes sufficiently unpopular.

  110. jeff hoyt on May 15, 2008 at 9:01 pm

    Dan;

    “Dan – I did not claim that I knew for certain what their convictions were, but I would be willing to bet a large amount on my supposition (and I believe you would as well).

    Actually you did. In comment #47 you state:

    Again, does anyone think there is any chance the judges were acting against their personal convictions?”

    Actually, I did not. Anyway, even if I did, why is it inappropriate to make observations and draw conclusions that should be obvious? I can only presume you learned this in graduate school.

  111. Brad Kramer on May 15, 2008 at 9:03 pm

    “As one of the dissenting justices noted, once you abandon long standing standards of social mores, and rule that the legislature has no authority to regulate who can be married to whom, there is only remaining now an arbitrary legal distinction between homosexual marriage and polygamous marriage. The FLDS may decide now is the right time to move to California.”

    GASP!!!

    Raymond, your exposition of constitutional theory is well-articulated, but it is only one of many. It’s certainly a tough sell given it’s premise that Marbury against Madison was illegitimate. Are the horrors you describe in the city of San Fransisco really non-reflective of majority public sentiment? That’s the trump card, no? I don’t care if my kids have to wait until they get home or to church to hear criticisms of gay lifestyle. I just don’t.

    “The time is not far away when anyone who is unwilling to take an oath of full acceptance and support of the gay lifestyle will not be allowed to serve in any elected or appointed position in state or local government, or even on a jury, and once all the committed Catholics and Mormons and Evangelical Christians have no power in the government, the crunch will come down on the dissenting churches themselves.”

    That’s an astonishing claim to make. If you really believe it, then I think we’re probably past rational discussion here.

  112. Dan on May 15, 2008 at 9:04 pm

    Jeff,

    You can make any observations or draw any conclusions you want. But if you are called out on it, then you better offer your evidence. If you cannot offer evidence, then you better withdraw your accusation.

  113. Bill on May 15, 2008 at 9:05 pm

    People, get your references right. Bobo is what David Brooks thought was a clever coinage, an abbreviation for bohemian bourgeois.

    Booboisie is H. L. Mencken’s term for “a segment of the general public composed of uneducated, uncultured persons.”

    Sometimes there is more overlap between the two groups than we might first expect.

  114. Dan on May 15, 2008 at 9:09 pm

    Jim,

    #115,

    You (or those of your political persuasion) are the one telling us that our Constitution and our statutes mean whatever we want them to mean at the moment. So perhaps you can explain to me why this won’t happen if/when the Church becomes sufficiently unpopular.

    Um, because it will never come to that. Not only can the church easily excommunicate whoever it wants from its membership (without any legal recourse on the part of the individuals excommunicated) but the church can set its own rules on temple marriages, as it sees fit, and the temple marriages do not even have to have secular approval. At the moment the secular, civil marriage is tied to the temple marriage. But it is very easy to separate the two, so that any member that tries to force the church to give them a temple marriage legally, will have absolutely no legal recourse to force the church to give them that temple marriage because that temple marriage has no legal civil consequences, and thusly does not come under the umbrella of the secular government.

  115. JimD on May 15, 2008 at 9:12 pm

    Dan, you assume that the Church will continue to retain certain rights to govern its own affairs without the government imposing restrictions or penalties for the Church’s making decisions the government (backed by the majority of the people) does not like.

    As I said earlier, that’s a dangerous assumption to make in light of Reynolds.

  116. Ray on May 15, 2008 at 9:13 pm

    Jeff (#106):

    “Ray #98 – I do not believe ‘it cuts both ways equally deep’. In fact, I do not believe it is close.”

    If I read this correctly, you are saying that a straight person who argues *against* gay marriage in a dominantly liberal area (say SoCal or WeHo) will be persecuted FAR more than a gay person who argues *for* gay marriage in a dominantly conservative area (say rural AL or rural SC or rural TX). The straight person will get threatened and attacked and intimidated, while the gay person will not – and it’s not close.

    Is this what you are saying?

  117. jeff hoyt on May 15, 2008 at 9:14 pm

    Dan – So opinions cannot be had unless tangible evidence is offered? You should also “call me out” for stating that I think you have attended graduate school. I have no evidence of that either, other than my observation that your analysis is suspect.

  118. Dan on May 15, 2008 at 9:14 pm

    See, church membership provides no civil benefits. There is no public benefit (like taxes) from being a member of the church. It has no ties to the civil government. So the church could be as racist as it wants, or as homophobic as it wants, etc. You can become a member at the pleasure of the church. You can be dismissed from membership at the pleasure of the church. Without any legal recourse. You cannot sue the church for kicking you out of the church. You can sue the church if you were abused, by say the bishop, acting as the official representative of the church. But to kick you out, there is nothing you can do about it.

  119. jeff hoyt on May 15, 2008 at 9:17 pm

    Ray – See my comment #112. Some will obviuosly not apply to you.

  120. Dan on May 15, 2008 at 9:18 pm

    Jim,

    #121,

    I am not familiar with Reynolds. But frankly, it is not a dangerous assumption to make. One thing that the church must realize that it must do is keep up with the times it is in. I’m glad to see that our church leaders, while still fighting against homosexuality, at least has come to realize that the situation is far more complex than originally perceived. I hope to see more such progression, and I think we will see it. The church, ironically is both ahead of its time and behind its time. The church gave up racism against blacks (though it took them far longer than the society around them), but the church was far ahead of society in terms of our health (the Word of Wisdom and smoking). The world around us is not static, and I’m glad to see the church be more malleable and flexible, and far more understandable than previous.

  121. Dan on May 15, 2008 at 9:21 pm

    Jeff,

    #123,

    Please read my comment more carefully. You can make whatever opinion you want. But if you are called out on it, you better provide evidence. I’m not going to call you out to provide evidence about my possible graduate education, because I really don’t care if you think I have a graduate education or not. But I do think it is important to flesh out why you feel these judges based their decision on their “personal convictions.” If that is what you think, I want to hear your evidence. Please provide it.

  122. JimD on May 15, 2008 at 9:22 pm

    Dan #124:

    But Dan, what happens when the powers that be decide there is a public detriment to a church teaching its members that homosexuality is sinful? What happens when all those homosexuals who are members of the church have to go to (federally funded, as per the left’s dreams) mental counseling because of issues of guilt or inferiority arising out of the church’s refusal to allow them entrance to the temple?

    You can read a “public interest” into darned near anything you want. And that’s assuming that, fifty or a hundred years from now, the Supreme Court chooses to still be playing by the rule you’ve laid down here. But there is absolutely nothing keeping them from adopting a different rule as the backwardness and latent bigotry of those darned Mormons becomes apparent to a more “enlightened” civilization.

  123. Dan on May 15, 2008 at 9:25 pm

    Jim,

    Clearly in this world anything can happen. But, as it has been prophesied that nothing will stop this Kingdom from going forth, I’m not frankly concerned about that extreme hypothetical. I think it is an unrealistic hypothetical and can easily be dismissed.

  124. Ray on May 15, 2008 at 9:27 pm

    Jeff, I read #125. That’s why I asked the question directly. It appears that your answer to my question is, “Yes, that’s what I am saying.”

    If so, one more question. Have you personally seen what happens to openly gay people who actively and vocally support gay marriage in the areas I mentioned? That is a serious question.

    I am NOT trying to lessen, in ANY way, what you have experienced. I simply wonder if you have seen what I have seen while living in the Deep South. I really do think bigots on both ends treat those at what they perceive to be the other extreme equally badly. At least, that’s what I’ve seen over the course of my life.

  125. JimD on May 15, 2008 at 9:32 pm

    Dan (126), Reynolds was the case holding that the free exercise clause did not justify Mormon polygamy.

    Forgive me if I’m misreading you, but you seem to be shifting. First you seemed to adopt the position that the Church would not be forced to change its position. Now you seem to be evolving into the view that even if the Church is forced to change its position, that wouldn’t be such a bad thing. Do you concede, then, that there is no permanent legal instrument that prevents the federal government (as a tool of the majority, with all their shifting values and prejudices) from doing pretty much whatever it wants to do with the Mormons in the decades and centuries ahead?

    And again, your language about the Church “keeping up with the times” demonstrates the same trap I outlined in my post #102. We have no idea where “the times” will take us in the years ahead. Social liberalism in its current incarnation is not the be-all, end-all of historical progress.

  126. JimD on May 15, 2008 at 9:34 pm

    Dan, I agree that nothing can stop the Kingdom. But a heck of a lot of things can make it slow down more than it ought. :-)

  127. Dan on May 15, 2008 at 9:42 pm

    Jim,

    #131,

    What I’m trying to get at is that this situation is far more complex than mere hypotheticals will address. Frankly, I think it was a very good thing that the government forced Mormons to remove polygamy from its practices. It was an abhorrent practice (as we see with the FLDS today). You bring up extreme hypotheticals and argue as if those have a really good chance of being reality. I think reality is going to continue being far more moderate than you think it will be. The reason I so easily dismiss the hypothetical you place is because it isn’t realistic. However, society trends force all groups within that society to move one way or another. If it weren’t for the civil rights movements in the 50s and 60s (and all those who fought for nearly 100 years before that for black rights), would the church truly have given up the ban on blacks holding the priesthood in 1978? I hold the view that they would not have. The ban would have continued. I’m glad the church today has pushed far away from that unfortunate past. But I do believe it did so because of the pressures of society around it.

    And this does actually have precedence in scripture. In Samuel’s day, the people voiced their desires for a king. Samuel tried to convince them that it would not be in their favor to have a king, but they chose to have one anyways. What the Israelites got was one of the most revered figures in their history, King David, both a man to admire and one to pity. It ended up being for their demise, but the Lord worked with them as much as he could under the new shift the society went towards.

    There are many aspects about the church today that are vastly different than in other times in history, both modern and ancient. It is not something set in stone; it is malleable and movable to reflect the society it resides in.

  128. Anonymous on May 15, 2008 at 9:44 pm

    Forgive me if these points have been made — I’ve breezed through the comments, but there are a lot of them… Also forgive me for being Anonymous on this issue — I am a semi-regular contributor with my real name on this blog, and I know for a fact that certain graduate schools that I am looking into are prone to discriminate against people who have expressed anything that can be viewed as judgmental towards gays and lesbians. You might not be prone to believe this, but I am confident I am right about this discrimination…

    First, let’s be clear that homosexuals have always had the right to marry. There is nothing in the law that keeps a homosexual from marrying a person of the other sex. So, to say that there is discrimination on this matter is technically incorrect. The issue is a fundamental philosophical issue on what marriage is. The courts, I think, have ignored this — and I know there are some gays and lesbians who do not want marriage because they see it as a fundamentally heterosexist construct. I would agree. The issue, really, should be an economic equality. Which is where many conservatives have made this issue much worse than it should be — if there were not fundamental financial benefits for married couples, then I don’t see this being anywhere near as hot a topic as it would be. Frankly, I don’t see any reason in today’s day and age for merely married people (without children) to receive any direct government benefits.

    Second, I wonder if people who make the argument of “who am I to say that two consenting adults should not be able to marry…” would say the same thing about consenting polygamist adults? How is insisting that marriage must be between 2 people not more discriminatory and arbitrary than insisting that it must be between husband and wife? Are these same activists willing to fight for polygamist marriage? (Note: I am opposed to polygamist marriage, but I think I think this issue reveals a logical inconsistency in the arguments used for gay marriage.)

  129. Bro. Jones on May 15, 2008 at 9:45 pm

    #131 – If the government wants to persecute us, let them. I can’t think of anywhere in the scriptures where it promises that the governments of the world will be at peace with us any time before Christ’s return. Quite the contrary, usually. So ignoring the fact that the government really can’t do much to the LDS Church in this situation (much as nobody did or could do much during the days of the interracial marriage/Black priesthood ban), even if they did want to shut the church down and imprison our members, I say go ahead. We’ll finally have a real bit of persecution to complain about for the first time in a century, and it could only hasten the Second Coming. Bring it on!

    By way of disclaimer, I don’t really care what the government says about who can marry whom. My prophet has said that marriage is between a man and a woman–to live his counsel, I (a man) have married a woman and I do not intend to marry a man. I feel personally as though I have obeyed the prophet and can sleep at night.

  130. MikeInWeHo on May 15, 2008 at 10:12 pm

    re: 110 103
    That is remarkably paranoid. Catholics are banned from government in San Francisco??

    re: 114106
    I appreciated your kind and thoughful comment a lot, JimD. Heck, in about a month we may well be married! I have yet convincing evidence that extending marriage to us in any way puts us “into conflict” with any other minority, except insofar as sensibilities are concerned.

    I could get behind the idea of extended protections for religious minorities quid pro quo with extended gay rights; the FLDS would probably love that deal.

  131. Adam Greenwood on May 15, 2008 at 10:17 pm

    It *might* be forced to change policies that attempt to enforce those doctrines on non-believers

    I don’t think Catholic Charities was holding a gun on anyone. If Mass. is anything like most states, there are multiple agencies that handle adoptions. I’m also believe that there was nothing about limiting the ban on Catholic Charities doing adoptions to adoptions involving “non-believers.”

  132. MikeInWeHo on May 15, 2008 at 10:17 pm

    Crap, the numbers keep changing. I give up. You know who you are, Raymond T and Jim D.

  133. Sister anon on May 15, 2008 at 10:30 pm

    These debates are so interesting for me, having been on both sides of the fence on this issue. For many years I held a very traditional conservative-LDS view on homosexuality and gay marriage, and would have agreed wholeheartedly with Adam\’s position. However, about ten years ago my brother revealed to his family that he was gay, after spending his teen years in depression, misery, self-loathing and guilt. It was a terrible blow to our very active LDS family, but as the years have passed we\’ve adapted to having a gay family member, and have had our perspectives shift 180 degrees as we\’ve watched our brother and son learn to accept his biological make-up, date men, and get married! (We are Canadian.) He has never been promiscuous, He just couldn\’t face a lifetime of celibacy and loneliness.

    Nowhere along the line did I have a dramatic moment where I rejected the church\’s teachings on homosexuality, but gradually over the years, it just became a non issue. I am fully active in the church and committed to its teachings, but for me and for many others who know and love gay people, the church\’s hard-line doctrines on gays create a lot of disconnect for us. Is it really the Lord talking? Or is it just cultural, like the issue of race was in decades past? So California is going to allow gay marriage. Big deal. It is not good for man to be alone. Let them live with dignity. My point is, that those who see this decision as an act of wickedness, and predict mournful consequences and weeping and wailing and gnashing of teeth in the state of California maybe don\’t see the whole picture. I\’m not trying to judge or preach, I\’m just saying that if my POV can change, maybe yours could too. Go talk to some gay people. They\’re really nice. And often very well dressed. Maybe this isn\’t the end of the world.

  134. Adam Greenwood on May 15, 2008 at 10:30 pm

    My thanks to JimD and Jeff Hoyt for advancing clear, vigorous arguments without rancor.

    I have removed glib, dismissive, or inflammatory comments that are on the side of the Church-marginalizing social experiment of gay marriage. This is not something about which we are or ought to be neutrally dispassionate though traditional marriage supporters should not take this as carte blanche.

  135. Adam Greenwood on May 15, 2008 at 10:41 pm

    Yes, it really is the Lord talking. I hate it when people are willing to throw out Church doctrine and practice if they know someone nice who doesn’t follow it. People, there are nice, well-dressed(!) folks out there of all beliefs and practices. This does not mean that the Church is false. God never said to Joseph Smith that anyone who sins or disbelieves will be unpleasant company.

  136. Joseph D. Walch on May 15, 2008 at 10:43 pm

    I for one am deeply concerned about how this decision is going to affect the laws in other states. I don’t know if the majority has the stomach to fight back the insidious gay lobby that will continue to fight to force acceptance of their lifestyle on me, my wife and my children. I reject homosexuality as a valid lifestyle and I’m not afraid to say it.

    It’s wrong, period! It shouldn’t have the sanction of the state or public recognition, period! People have the right to do whatever deviant thing they wish to do within the law (which is being culled back further and further in favor of radical individualism to the expense of public virtue), but I do take offense when I am told that I have to accept homosexuality into the sacred canon of constitutional law. It is a blight on America’s moral legacy.

  137. Joseph D. Walch on May 15, 2008 at 10:51 pm

    Yes, Sis. Anon, I have an Uncle who is Gay too. He and his partner are very nice people. They don’t eat human flesh or kill puppies in Wal-Mart parking lots (like those bumbling backwater people in W. Virgina…obviously */sarcasm*). Here’s the rub: the decency of many people whether they be jewel thiefs, adulterers, politicians or gays doesn’t change anything about the nature of the injuctice they are doing to their bodies and to society which has set up laws precisely for the protection of families as institutions for the rearing and protection of children.

  138. Chris on May 15, 2008 at 10:55 pm

    Thank God for the “wicked” rulers of California and their faith in the created dignity of all human beings.

  139. Adam Greenwood on May 15, 2008 at 10:58 pm

    If whatever people want to do should be celebrated and embraced, then none of it matters and there is no dignity. Dignity requires something more than universal self-esteem.

  140. Ray on May 15, 2008 at 10:59 pm

    “They don’t eat human flesh or kill puppies in Wal-Mart parking lots (like those bumbling backwater people in W. Virgina…obviously */sarcasm*).”

    Sarcasm or not, that is an incredibly reprehensible statement. Why in the world was it necessary?

  141. Marc Bohn on May 15, 2008 at 11:04 pm

    Interesting nuggets about the current California Supreme Court. Six of the seven were originally appointed by Republicans and:

    “All seven members of the California court have been confirmed by the voters. Kennard — confirmed 2006 with 74.5% Corrigan — confirmed 2006 with 74.4% Werdegar — confirmed 2002 with 74.1% Moreno — confirmed 2002 with 72.6% Baxter — confirmed 2002 with 71.5% George — confirmed 1998 with 75.5% Chin — confirmed 1998 with 69.3%”

  142. Joseph D. Walch on May 15, 2008 at 11:05 pm

    Ray, I was simply stating as clearly as I could that there are very nice people that are gay. I was also trying to inject a little humor from current events (anybody watching the news knows what the media is saying about people voting for Clinton e.g. that the polls suggest that a significant minority are racists–another stereotype which I don’t think is true).

    What’s so reprehensible about that? I am sorry if i’ve been misunderstood.

  143. Joseph D. Walch on May 15, 2008 at 11:07 pm

    It was a terrible blow to our very active LDS family, but as the years have passed we\’ve adapted to having a gay family member, and have had our perspectives shift 180 degrees as we\’ve watched our brother and son learn to accept his biological make-up, date men, and get married!

    I am sorry that this idea permeates society so. It should be recognized that anger is part and parcel of some people’s biological make-up. I also belive that faithful religious practice is a gift engrained into some people’s biological make-up as well. Alcohol addiction is also a biological process to which some are more susceptible, but almost anybody (other than the atheist) will hope to concede that humankind is more than mere flesh and serotonin.

  144. Kaimi Wenger on May 15, 2008 at 11:08 pm

    Anon 127 writes,

    “First, let’s be clear that homosexuals have always had the right to marry. There is nothing in the law that keeps a homosexual from marrying a person of the other sex. So, to say that there is discrimination on this matter is technically incorrect.”

    This is a bogus argument.

    For instance, Blacks were technically allowed to marry before Loving v. Virginia — they just had to marry other Blacks. Does that mean that anti-miscegenation laws (such as those invalidated in Loving) were not discrimintatory?

    “The issue, really, should be an economic equality. Which is where many conservatives have made this issue much worse than it should be — if there were not fundamental financial benefits for married couples, then I don’t see this being anywhere near as hot a topic as it would be.”

    I agree – for the gay and lesbian couples I know, economic equality is the major driving force behind their support for marriage.

    “Second, I wonder if people who make the argument of “who am I to say that two consenting adults should not be able to marry…” would say the same thing about consenting polygamist adults? How is insisting that marriage must be between 2 people not more discriminatory and arbitrary than insisting that it must be between husband and wife? Are these same activists willing to fight for polygamist marriage? (Note: I am opposed to polygamist marriage, but I think I think this issue reveals a logical inconsistency in the arguments used for gay marriage.) ”

    Well, I’d make that argument.

    I think that, post-Lawrence, the ban on plural marriage (between consenting adults, not 14-y.o. kids) is highly suspect. And I’m not the only one — the Chief Justice of the Utah Supreme Court said the same thing, in a legal opinion a few years ago.

  145. Joseph D. Walch on May 15, 2008 at 11:15 pm

    Kaimi,

    I agree – for the gay and lesbian couples I know, economic equality is the major driving force behind their support for marriage.

    I would challenge that, Kaimi, from my experience, Gay folks are usually more well off than the average American. I don’t see too many middle class families taking a weeklong trip to Sydney for Gay Day.

    Secondly, there is a reason there is discrimination built into the tax code; to reward families being reared in households with a Father and a Mother. I support discrimination in the tax code for single-income (where the father-preferibly is the sole breadwinner), against single parents (in the form of incentives to get married), etc.

    Why are you in favor or abolishing these incentives for families headed by husband-wife single income households?

  146. Adam Greenwood on May 15, 2008 at 11:16 pm

    I agree – for the gay and lesbian couples I know, economic equality is the major driving force behind their support for marriage.

    California allows civil unions that have the same substantial benefits as marriage, no? If so, if economic benefits were the driving force behind this litigation, the people bringing it were sadly deceived.

  147. Brad Kramer on May 15, 2008 at 11:28 pm

    “Why are you in favor or abolishing these incentives for families headed by husband-wife single income households?”

    The studies I’ve read indicate that the only real-world, practical effects of such incentives is an increase in mothers who want to retain welfare eligibility having to marry dead-beat fathers, enabling the latter to avoid paying child support. That tends to be the only demographic swath for whom the incentives significantly alter the opportunity cost of marriage. Can you really think of another situation in which the kinds of tax- and entitlement-based incentives would exert a meaningful influence on the decision to marry or not?

  148. Dan on May 15, 2008 at 11:29 pm

    I just want to go on record that the quiet removal of comments deemed “inflammatory, glib, offensive” or whatever else Mr. Greenwood wants to call them does not help in creating an atmosphere where people can feel free to express their true feelings. It is one thing to remove offensive comments, but quite another to do what Mr. Greenwood is doing. It stifles a constructive conversation, it adds to the belief that some Mormons are authoritarian and self-righteous in nature. And it makes for a messy set of comments where people put numbers by the comments they refer to. Who knows where comment #131 that I referred to in one comment went off to. How can someone who wishes to keep track keep track?

  149. Ray on May 15, 2008 at 11:29 pm

    #141 – This is a very serious question:

    Do you really not understand why joking about “those bumbling backwater” West Virginians “eat(ing) human flesh or kill(ing) puppies in Wal-Mart parking lots” is offensive – especially in a thread where nothing about that quote had been mentioned previously?

  150. Adam Greenwood on May 15, 2008 at 11:33 pm

    Ray, it was said sarcastically. I don’t see it as offensive but if you want to continue to have a discussion with Mr. Walch about it, please see if you can do it via email.

  151. Kaimi Wenger on May 15, 2008 at 11:40 pm

    California allows civil unions that have the same substantial benefits as marriage, no?

    Adam,

    That’s a good question, really.

    As I’ve blogged elsewhere, California does indeed grant substantially the same benefits under state law to registered domestic partners, as to married couples.

    However, conversations I’ve had with gay and lesbians in California have alerted me to gaps in the existing system. For one thing, it’s a statutory fix. It has all sorts of gaps. The legislature has tried to fix these. Still, gay and lesbian couples face all sorts of hurdles in getting _actual_ equal treatment. One friend discussed a series of lawsuits at the state agency level as one state agency (I don’t recall which at the moment, but I can check) raised various questions about applying the legislative fix.

    That’s the biggest problem. Even in California, which is probably the most progressive state in the nation on domestic partnership, it’s not treated as fully equal. Plus, there are individuals who don’t follow the rules as written. One reason my friend carries a packet of legal docs everywhere is the fear of being at the hospital and having some low-level functionary say, “sorry, you’re not allowed to see your partner. Family only.” Which is legally incorrect, but would have a devastating effect, anyway.

    A second issue is that many federal benefits are tied to marital status. This decision _could_ affect those benefits, which (if it happened) would be hugely important for the couples involved.

    I’m not certain that it will have that effect, though. The interaction of federal DOMA statutes with state recognition and federal rights isn’t an area I know well.

  152. Adam Greenwood on May 15, 2008 at 11:50 pm

    If doubt that a judicial fix will be problem-free if a legislative fix isn’t. In practice it looks to me like its about validation and not about cash, whatever the intent of the parties may be.

  153. Derek on May 16, 2008 at 12:22 am

    Dan #126,

    “Frankly, I think it was a very good thing that the government forced Mormons to remove polygamy from its practices. It was an abhorrent practice (as we see with the FLDS today).”

    I think the sample size in this case is too small and filled with criminals to make any generalizations. Because polygamy is outlawed, only outlaws can be polygamous, so of course a disproportionate number of polygamous relationships are abhorrent. Once polygamy is made legal and becomes a little more mainstream, you might see more wholesome polygamous marriages.

  154. Dan on May 16, 2008 at 12:35 am

    Derek,

    #153 (I hope),

    Once polygamy is made legal and becomes a little more mainstream, you might see more wholesome polygamous marriages.

    Can you show me examples of “wholesome” polygamous marriages?

    Interestingly, the examples from the scriptures don’t quite work. Abraham favored Sariah (later Sarah) over Hagar, even to the point of casting Hagar and Ishmael out into the wilderness. Jacob really didn’t want Leah, poor girl. Really, she was kinda forced into the relationship by her greedy father. The Lord chastises Kings David and Solomon to Jacob, Nephi’s brother (though not anywhere in the Bible as we have it) over their many wives and concubines.

    This is a side issue to the main point here, but if you can (and if admins will permit), please share examples of wholesome polygamous marriages.

  155. Ray on May 16, 2008 at 1:03 am

    Dan, read the journals of MANY of the early polygamous saints. I don’t want polygamy practiced now, as I believe our scriptures are clear that monogamy is the default, but there are LOTS of examples of wholesome, healthy, non-abusive polygamous relationships. My own children’s ancestry (both sides) includes plenty of them.

  156. m&m on May 16, 2008 at 1:14 am

    I am always a bit surprised when I read discussions on the ‘nacle and people somehow think that a decision to allow gay marriage is only about letting a few people have their chance to be married, with no affect on anyone else. There is no question in my mind that there will be ramifications that reach into many facets of our lives — some examples that come to mind are religion and religious rights, issues of free speech, family life and policy, impact on ‘the rising generation,’ rights debates and legislation, politics, school cultures (and parental/taxpayer rights to influence them), and morality. All of these things can have a significant impact on our society as a whole. We may not know exactly what the effect will be, but to say that there will be simply no effect seems really blind to even the basic concepts of sociology and human behavior/systems (you change one aspect of a culture or of human relationships, there are always ripple effects), let alone the charged realms of politics and policy and legal rights issues.

    p.s. To add to Ardis’ links way up there, here’s another one that I think is worth a read.

  157. m&m on May 16, 2008 at 1:21 am

    In case you haven’t seen it yet, the Church issued a formal response to the decision.

    http://mormontimes.com/WC_headquarters.php?id=1105

    [Thanks.]

  158. MikeInWeHo on May 16, 2008 at 1:29 am

    re: 150
    I agree with Adam here, Kaimi. Despite what your friends may tell you, this is all about symbolism and validation at least in CA. As long as DOMA stands, gay marriage and domestic partnerships are largely the same thing. I suppose your friend is right that some low-level ER functionary might be more likely to get confused about a domestic partner than a spouse, but carrying around all the documents sounds a bit hyper-vigilant to me.

    And Joseph D: Gays Who Know avoid Sydney around the week of gay mardis gras. It’s way too crowded, and impossible to get the business class upgrade. But I digress.

  159. Blake on May 16, 2008 at 1:33 am

    Dan: Yes, I have several friends who have wholesome polygamous marriages. Why do you stand in judgment of them? They have a much lower divorce rate than monogamous marriages and they tend to be very devoted. They are good and decent people, good and devoted parents who choose to be in a multiple partner relationship. Their children also need the benefits and protections of marriage. Their relationships also need to be strengthened and recognized so that they are not discriminated against. Let’s not pretend that there is a rational or legitimate distinctions between homosexual marriages and plural marriages or even open marriages — other than your basic prejudices and refusal to grant everyone a level playing field. Indeed, these plural marriages are a decided minority who need protection against the hegemony of the majority and that is what the constitution is for after all. Any argument in favor of gay marriage is an argument in favor of plural marriages — and even with greater appeal in the case of plural marriages because they can actually have children, and lots of them. If marriage is a good to be promoted by the State, then how can we deny it to those who desire multiple partners without a religious reason? How can we deny it to those who base it on religious ideology if it is really a stabilizing factor as the CA S. Ct. says?

    Kaimi — your stand against the advice of the prophet regarding homosexual marriage is very clear. Here is the dilemma: if the prophet is right only when you agree, then what role does the prophet play for you? Do you see it as the role of a prophet to critique social mores and what is accepted, or is it the role of the Church and prophet to bow to what you take to be the prevailing legal and social climate (as you certainly seem to me to be doing)? So it is now the role of society to critique the prophets as I read you and the prophets should skulk away in shame at having taken on the issues — like not wasting $$ on prop 22?

    Further, I would never suggest that truly fundamental constitutional rights should bow to the majority — neither should the prophets. But like many who take the liberal line of saluting judicial activism, that isn’t even the issue. The issue is how four justices found a fundamental right about gay marriage in the CA constitution in the first place? I’ve read the opinion carefully — they are long on social commentary and even social science and really weak on anything in the CA Constitution or its history to justify their decision. It is simply judicial creation ex nihilo as I read it. Who made them social sceintists? Why is the issue of social good theirs to decide rather than the people of CA? So the question is whether they are creating a right out of thin air — and isn’t the creation of such rights the role of the people through petitions and legislative change of constitutional language? It sure seems that such is the way of our ordered system of government. Otherwise, we get the tyranny of folks who simply impose their will on others by creating wholesale what just ain’t in the constitution at all and they become super-legislators who cannot be checked and balanced. That seems to me to be the issue here. Of course I expect the good people of CA to step up to change their constitution and effectively overrule the judges — and I believe there is a very good chance of that occurring.

    The Church’s stance on homosexual marriage is of course based on concern of what the implications of recognizing a “fundamental constitutional right” will have on Church’s stances on things like adoption and marriage and getting funding and tax breaks for students at Church universities and for tithing contributions. I predict that very shortly we will see efforts to bar the Church from being recognized by the State of CA for adoptions through LDS Social Services because they will not recognize homosexual couples. We will see efforts to block any tax breaks for the Church. Later on we will see efforts to bar the Church from seminary programs with released time seminary. Ultimately the tax status of tithing contributions will be challenged because it involves a fundamental right — not merely a role to protect certain kinds of relationships within the discretion of the State as it has been in the past.

    Most troubling of course is the implicit message that gay relationships are morally on par with heterosexual relationships. So I ask the critical question — KAIMI: do you see gay relationships as morally on par with heterosexual relationships? I ask because it seems to be implicit in your stance here and at BCC that they are. Do you regard homosexual acts as sinful before God as the Church teaches? These are essential issues. I’ll understand if you don’t answer. But failing to answer these questions is to leave out something very essential to this discussion as I see it. Further, it seems to me that for you the answer is that the prophet has it all wrong about the moral quality of homosexual relationships. Of course, the status of such relationships before God is not a matter the State ought to be involved in — but don’t you agree that the Church has an obligation to be very clear about such issues?

  160. Kaimi Wenger on May 16, 2008 at 3:38 am

    Blake,

    I fully recognize the spiritual/ecclesiastical authority of church leaders to make declarations of church doctrine and teaching. I certainly do not intend to challenge that.

    I disagree with your own political analysis and prediction as to the likely effect of recognition of gay marriage. But then, neither of us has a crystal ball.

    I recognize the constitutional difficulties in the decision. I like some of the legal and policy outcomes, but I’m really not thrilled about how the court got there. It doesn’t strike me as a masterpiece of legal reasoning.

    In this thread, I’ve made a number of comments. For instance, I’ve discussed the procedural aspects of a state law constitutional ruling; the constitutional-theory aspects of countermajoritarianism (all straight out of Bickel/Ely); the efficacy of particular individual arguments (I really don’t think the “they’re free to marry a woman if they want to” argument holds water); and polygamy applicability (I do think the same legal principles apply). I haven’t exactly said, “yay, gay marriage” in comments.

    I certainly don’t believe that I’ve taken any “stand against the advice of the prophet.”

    **

    While we’re asking questions, counselor, let me ask you a few as well.

    What is your view regarding the church’s political neutrality?

    What is your interpretation of Elder Wickman’s statement, regarding a proposed constitutional amendment on gay marriage that decisions on voting “must of course rest with each one in their capacity as citizens”?

    What do you make of the church’s request that members write letters to their senators about gay marriage, _without_ any stated instruction as to whether church members should oppose or support a proposed amendment?

    What do you make of the church’s recent press release on the same topic, stating that “Church leaders had asked members to write to their senators with their personal views regarding the federal amendment opposing same gender marriage, and did not request support or opposition to the amendment”? Is the explicit statement that church members are not required to support a Federal amendment banning gay marriage — a lie? It clearly sets out on its face that church members should make their own choice. Is that a true statement?

    What do you make of George Albert Smith’s explicit disavowal of the statement — oft quoted by church critics — that “when the Prophet speaks, the thinking is done”? (See http://www.fairlds.org/Misc/When_the_Prophet_Speaks_is_the_Thinking_Done.html)

  161. Steven B on May 16, 2008 at 6:03 am

    m&m and someone else mentioned the case of the Catholic Charities in Boston ceasing adoptions after same-sex marriage came to Massachusetts. What is significant to this discussion is that that was NOT directly the result of SSM, but rather a conflict with non-discrimination legislation effective a decade before the advent of SSM.

    Whereas the CA Supreme Court decision will certainly have a ripple effect, far more significant, especially in separation of Church and State issues will be the many anti-discrimination laws that include LGBT individuals. In states and cities throughout the United States these laws are now being passed almost on a weekly basis. Even a piece of federal legislation, which included gays, lesbian and bisexual, but not transgendered individuals, almost made it to the President’s desk just this past year.

    These non-discrimination laws do face significant opposition, particularly from Christian social conservatives. But many statutes, primarily related to housing and services, are successfully moving through legislatures. I wonder if, when it comes to conflict between church and state on issues of gay rights, same-sex marriage may not be the biggest troublemaker.

  162. Dan on May 16, 2008 at 6:19 am

    Ray,

    On the point of polygamy, I am out of my league. I haven’t delved into this topic much beyond mere skimming, and as such I really don’t know much, so I’ll stop making anymore points. I’m sure you are correct about many of the Mormon polygamist families of the past living fairly righteous and good lives. You would know more than I would on the subject.

    Blake,

    I really don’t have a problem with either gay marriage or polygamy. I believe that people can do whatever they want with their relationships, and I would honestly like to see the government out of people’s relationships. It is not their business. That all said, I do find the practice of polygamy abhorrent (based solely on the little information I do have), as I do find gay marriage abhorrent. But I don’t want the government to regulate either. That is for individuals and religions to sort out.

  163. Adam Greenwood on May 16, 2008 at 7:23 am

    Gays Who Know avoid Sydney around the week of gay mardis gras. It’s way too crowded, and impossible to get the business class upgrade.

    Bloggernacle straights and closeted gays are falling behind in the race to comic self-deprecation. Curse Mike “Sputnik” InWeHo and his humor gap.

  164. Adam Greenwood on May 16, 2008 at 7:33 am

    I fully recognize the spiritual/ecclesiastical authority of church leaders to make declarations of church doctrine and teaching. I certainly do not intend to challenge that.

    I fully recognize the spiritual/ecclesiastical authority of the Pope over the Roman Catholic Church and the Dalai Lama over Hollywood. The point is whether I recognize any spiritual/ecclesiastical authority over me, and, if so, to what extent. However it might be best if you and Blake drop the subject at this point.

  165. Adam Greenwood on May 16, 2008 at 7:34 am

    StevenB,
    you have a good point but there is a synergy in these things.

  166. Doug Hudson on May 16, 2008 at 9:18 am

    What it boils down to is this: The Mormon holy texts state that homosexuality is a sin. Well and good. But the question then becomes, should the law be based on the holy texts of the Mormons? Naturally, the Mormons believe so. But so does every other religion (except maybe the Unitarian Universalists.) Therein lies the rub: if you are going to base the law on religious beliefs, which do you favor? Once you open that door, the law becomes a tool of the majority; and that, frankly, does not favor the Mormons.

    Our system is ultimately designed to be check on the majority–that is why the Founders established an elaborate republican system rather than a democracy; because they didn’t trust the majority to do the right thing.

    So, for those Mormons who support prohibitions on the rights of a minority (gays), consider this: you are also a minority, and one that has suffered at the hands of the majority in the past. Indeed, many of the nasty things said about gays in some of the posts above are remarkable similar to things that others have said about the Mormons. I do not equate Mormons and gays, here, but rather, suggest that it is in the interest of all minorities to, if not support other minorities, than at least to avoid measures that chip away at the protections of minorities.

    Of course, there are two obvious rebuttals to this: one, that gays are not actually a minority because they shouldn’t exist at all, and two, that God will protect the Mormons, and naturally there can be no response to either argument, because they appeal to the existence of a higher power.

  167. Michael K. on May 16, 2008 at 9:24 am

    Kaimi said,

    “The U.S. Supreme Court will not review a Cal Sup Ct decision as to the meaning of the Cal constitution.”

    I think you meant, “probably will not”, unless you are one of their law clerks and know how they choose their docket, but legally, they can and have reviewed state constitutional issues.

    Kaimi also said,

    “What is your view regarding the church’s political neutrality?” and some other comments that specify examples of the Church’s implementation of this policy.

    The Church has also said it is “disappointed” in the decision in California. It (through the Area Presidency) has also mobilized the members to campaign in support of Prop 22 in 2000. And there are numerous other examples of the Church making statements about this particular policy issue the landed on the side of being against gay marriage.

    Now let me ask you a question, Kaimi. What do you make of this particular phrase from the Proclamation on the Family?

    “Further, we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.”

    Does this not specifically speak to the social and legal acceptance of gay marriage? “Family” was defined as between a man and a woman. Does not the legalization of gay marriage “disintegrate” the family so defined? Prophets are warning that calamities will be brought upon “individuals, communities, and nations” if this is allowed to happen. I firmly believe that anyone who believes in the divine origin of this document would come to the conclusion that they need to fight to protect the status of the family, which includes stopping any kind of social or legal acceptance of same-sex marriage.

  168. Adam Greenwood on May 16, 2008 at 9:47 am

    The US Supreme Court reviewing this case would be extremely unlikely.

  169. Adam Greenwood on May 16, 2008 at 9:50 am

    Thanks for the fine comments.

    Any further thoughts you may have on how Mormons may best defend marriage in California and elsewhere, or any insights and perspectives not already raised here, can be posted if you email them to adam at times and seasons dot org

WELCOME

Times and Seasons is a place to gather and discuss ideas of interest to faithful Latter-day Saints.